диссертация (1169188), страница 19
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Nevertheless, at its Seventh Session in 1955, after following up on thematter, the Commission resolved, by the majority of votes, to exclude the provisioncited above which it had previously proffered.At the same session, the Commission introduced a number of other changesinto the Articles on the Law of the Sea on the issue in question so as to align theArticles further with the 1951 ICJ judgment. In particular, the ILC entered thewords on taking into account “economic interests peculiar to a region, the realityand importance of which are clearly evidenced by a long usage.”107 Some states,however, stated in their responses to the restated text (of 1955), that they could notsupport the ILC’s proposal to include the provision on “economic interests”.According to them, a reference to economic interests was based on an incorrectinterpretation by the ILC of the ICJ judgment.
The interests implied in that106For more details, see: Nordquist M.H. (ed.-in-chief) United Nations Convention on the Law of the Sea, 1982. ACommentary. Dordrecht/Boston/London. Vol. II. 1993. P. 88-90.107Ibid.83judgment were viewed exclusively in light of the respective historical andgeographical factors; but those economic interests could not per se serve as aground to draw a straight baseline.
In principle, other grounds had to be used todraw straight baselines.That opinion was joined by the majority of the members of the ILC at itsEighth Session, and that Article quoted above was re-worded accordingly.A number of other issues relevant from the international law standpointsurfaced.
First of all, whether it would be desirable to grant to foreign vessels theright of innocent passage (usually present in the territorial sea) in the waters thatbecome internal when using the straight baselines system. The respective argumentoutlined in general above, was dismissed by the majority of the Commissionmembers.
However, the Commission found that it could agree that if any statewished to “re-define” the limits of its territorial sea using straight baselines andthereby including into its internal waters such portions of the high seas orterritorial sea previously subject to international cooperation, other states could notbe deprived of their former right of passage in such waters.Of legal significance for us today is that here, the ILC assumed that thecoastal state may by itself “re-define” the baselines along its coast using straightbaselines. This position of the ILC is important to affirm this right for Arctic states,especially in the context of the melting of ice in the Arctic Ocean seas and the reconfiguration of the Arctic coast.Secondly, the ILC specifically noted that straight baselines could be drawnonly between points located in the territory of one state.
That is, according to theILC, it would be impermissible for two states to enter into an agreement, wherebystraight baselines run along the coast and between the junction points in theterritories of such different states. That said, no practice of such agreements exists.Furthermore, the ILC posited that straight baselines could be drawn toislands located in immediate vicinity to the coast, but not to shoals and banks84drying during the low tide.108 For such straight baselines, states could only usesuch natural or artificial elevations that were always above sea level. Otherwise,the “starting”, reference points for baselines would be indistinguishable duringother cyclical inflows of the high tide water.By virtue of the well-known general principle of consistency of applying thelaw, that document of the ILC, as already noted, continues to have practical value;I will show below that it was invoked, for instance, by the international team ofauthors of the most cited six-volume Commentary to the 1982 UNCLOS.The term “baseline” is key in the Article of the ILC document concerningthe outer limit of the territorial sea:“Article 6The outer limit of the territorial sea is the line every point of which is at adistance from the nearest point of the baseline equal to the breadth of the territorialsea.”In its Commentary to that Article, the ILC referred to the position of thecommittee of technical experts formed to advise the Commission in its work oncodifying the law of the sea.
According to the experts, that method of determiningthe outer limit of the territorial sea had been used for a long time. As a result ofemploying that method, one draws a line that, in case of deeply indented coast,departs from the line following the sinuosities of that coast; the latter would oftenbe so “tortuous” as to be unusable for purposes of navigation.The line all the points of which are at a distance of T miles from the nearestpoint on the coast (T being the breadth of the territorial sea) may be obtained bymeans of a continuous series of arcs of circles drawn with a radius of T miles fromall points on the coast line. The outer limit of the territorial sea is formed by themost seaward arcs.
In the case of a rugged coast, this line, although undulating,will be less of a zigzag than if it followed all the sinuosities of the coast. In the108English doctrines have no clear definition of this term. Below is a Russian one. Bank is a “standalone elevationof the part of the seabed, under which depths are considerably smaller than those surrounding it. Banks may bealluvial, rocky, coral, tectonic, etc.” / Voennyi entsiklopedicheskii slovar’ [Military Encyclopaedical Dictionary].Moscow: Voennoe izdatel’stvo. Chief ed. N.V. Ogarkov et al.
1984. P. 65.85case of a straight coast, or if the straight baseline method is followed, the arcs ofcircles method produces the same result as the strictly parallel line.Given such explanations of the technical experts, the Commission stated thatit was feasible to recommend the method of arcs of circles since its use wouldfacilitate identification of the limits of the territorial sea for navigation purposes. Inany event, the Commission believed that states were entitled to use that methodwithout risking being accused of violating international law for not having therespective lines designating the limits of internal waters and territorial sea reflectall of the sinuosities of the coast.It seems that what is currently relevant in the Commentary of the ILC is thatthe Commission took into account all of the opinions of technical experts subjectto the proposed optimal international legal solution.For the issue of lawful drawing of base (closing) lines along the mouths ofbays, highly relevant today, it is of practical interest to look at the ILCCommentary to Art.
7 of its document that reads:“1. For the purposes of these articles, a bay is a well-marked indentationwhose penetration is in such proportion to the width of its mouth as to certain landlocked waters and constitute more than a mere curvature of the coast. Anindentation shall not, however, be regarded as a bay unless its area is as large as, orlarger than, that of the semi-circle drawn on the mouth of that indentation.
If a bayhas more than one mouth, this semi-circle shall be drawn on a line as long as thesum total of the length of the different mouths. Islands within a bay shall beincluded as if they were part of the water area of the bay.2. The waters within a bay, the coasts of which belong to a single State, shallbe considered internal waters if the line drawn across the mouth does not exceedfifteen miles measured from the low-water line.3. Where the mouth of a bay exceeds fifteen miles, a closing line of suchlength shall be drawn within the bay. When different lines of such length can bedrawn that line shall be chosen which encloses the maximum water area within thebay.864.
The foregoing provisions shall not apply to so-called “historic” bays, or inany cases where the straight baseline system provided for in article 5 is applied.”In its Commentary to that Article, the ILC noted that its paragraph one,borrowed from the report of the abovementioned committee of experts, lists thecriteria that an indentation or curvature should meet to constitute legally a bay.
Inadopting that resolution, the Commission filled the gap pointed at both by theHague Codification Conference of 1930 and the ICJ (in its judgment in theFisheries case of 1951).If, as a result of the presence of islands, an indentation whose features as a“bay” have to be established has more than one mouth, the total length of the linesdrawn across all the different mouths will be regarded as the width of the bay.Here, the Commission meant to indicate that due to the presence of islands at theentrance into any indentation, the latter may be more closely tied to the mainland,which consideration provides a ground for some lawful measurement of the abovecorrelation between the width and length of the indentation.
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