диссертация (1169188), страница 20
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In that case, theindentation, that would have met the above criteria had no islands been present atits mouth, should be legally deemed a bay. Nevertheless, the islands located at thebay mouth cannot be deemed “to close” the bay if there is a regular navigationroute.The Commission thoroughly discussed in which circumstances bay waterscould be deemed to be internal waters of the coastal state.
The majority ofmembers of the Commission believed it insufficient to indicate that the bay watersshould be closely linked to the adjacent surface territory due to the depth of thebay’s protrusion into the mainland or, perhaps, due to the geographicalconfiguration of a bay or in view of its value from the standpoint of the coastalstate’s economic needs. These criteria, as noted above, cannot boast beingjuridically accurate. Most of the Commission members thought that the maximumlength of the closing line had to be put down in numbers, that it was not enough toset a limit based on geographical or other consideration that would inevitably beinaccurate. The Commission found at that time that such limit should be over ten87miles.
In abstaining from setting forth some direct link between the length of theline closing the bay and the breadth of the territorial sea (some members of theCommission officially denied any such link), the ILC believed that it had to takeinto account the trend towards increasing the breadth of the territorial sea by wayof lengthening the closing line of the bay. In that context, at the Commission’sSeventh session a proposal was made to provide for a 25-mile limit for the lineclosing the bay mouth. According to the authors of the proposal, the length of theclosing line would be twice the permissible maximum breadth of the territorial sea(i.e., 12 nm x 2 = 24 nm).
However, at its Seventh session, the Commissiondismissed that proposal by majority mostly because it was acknowledged that sucha limit was unacceptable for states that had already set a three or four-mileterritorial sea. At its Eighth session, the Commission reviewed that matter in thelight of feedback received from governments. The proposal to prolong the closingline to 25 miles was welcomed only by some states. Many governments declaredthat, in their opinion, that prolongation was too much.
Given that, by majority, theCommission resolved to replace the 25 miles proposed in 1955 with a more modestmaximum length of the line closing bays, namely, 15 miles.According to that position of the ILC, if the bay mouth was wider thanfifteen miles, the closing line would be drawn inside the bay at the point closest tothe sea, where the width does not exceed that distance. If several 15-mile linescould be drawn, the one selected as the closing line would be the one closing in thebiggest water area inside the bay. The Commission believed that other methods fordrawing that line proposed would create legal uncertainty.The Commission specifically noted that it proffered the rules applicable to abay whose coasts belonged only to one state.
As to other bays (i.e., those under thesovereignty of more than one state), the Commission stated that it did not haveadequate data either on the number of relevant instances or on the internationallegal rules that applied to them at the time.88Of practical interest today are the ILC’s commentaries to the provisions ofthe Article on taking into account port installations in defining the limits of internalwaters and the territorial sea:“Article 8For the purpose of delimiting the territorial sea, the outermost permanentharbour works which form an integral part of the harbour system shall be regardedas forming part of the coast.”In its Commentary to that Article, the ILC stated that the waters of a port upto a line drawn between the outermost installations form part of the internal watersof the coastal state.Permanent structures erected on the coast and jutting out to sea (such asjetties and other hydrotechnical structures protecting the port waters from waves;piers for the mooring vessels with bigger draught) are assimilated to harbourworks.The ILC’s Commentaries are now used by coastal and other states’authorities to align their maritime policy.
They are cited in international courts andarbitrations. Moreover, the ILC documents are taken into account in the severalvolumes of the UNCLOS Commentary cited above.The said Commentary to the UNCLOS prepared by a large collective ofEnglish-speaking international lawyers,109 is, at present, the most representative,fundamental and widely cited one, including in UN documents. From thatperspective, the explanations given in the Commentary on the substance of thetreaty provisions on baselines, the possible approaches to interpreting them,references to earlier treaty rules or preparatory works of the 3rd UN Conference onthe Law of the Sea are, without doubt, of practical value.
Invoking theCommentary reinforces the legal substantiation of the coastal state’s measures onthe specification of the location of baselines along its coast. A reference to the109UN Convention on the Sea. 1982. A Commentary. Volumes I-VI. Editor-in-Chief M.H.
Nordquist. GeneralEditors S.N. Nandan and S. Rosenne. As. Editor N.R. Grandy. Ed. by M.C. Allen. Martinus Nijhoff Publishers.Dordrecht/Boston/London. 1985-1992. Vol. II. 1993. 1040 P. It is noteworthy that not a single Russian law of thesea specialist was invited to become one of the many authors of this work.89Soviet and Canadian doctrine of drawing only straight baselines in the Arctic andstraight baselines closing the Arctic seas on historical grounds, however, may alsobe called for.The Commentary, after a citation of Art. 5 of the UNCLOS to the effect that“the normal baseline for measuring the breadth of the territorial sea is the lowwater line along the coast,” draws a reader’s attention to the relevance ofinternational legal nuances. First of all, to the wording in the beginning of thatarticle: “[e]xcept where otherwise provided in this Convention.” This wordingindicates that there exist other methods to determine baselines, apart from the lowwater mark method.
Other methods are also found in the UNCLOS in Articles 6(“Reefs”), 7 (“Straight baselines”), 9 (“Mouths of rivers”), 10 (“Bays”), and 13(“Low-tide elevations”). It is crucial that Art. 14 provides for the right of states tocombine such various methods; in that case, the specific baseline is defined by thecoastal state pursuant to the applicable international law.For the purposes of this dissertation which concerns the doctrinalinterpretations of the status of the Arctic, of practical interest is the correctinterpretation of the UNCLOS provisions on the “straight” and “normal” baselines,that is, in the latter case, on the low-water line.Pursuant to the Resolution of the International Hydrographic Organisation,the low-water line should be designated so distant from the coast (that is, so low)that in reality, the low-tide line would rarely recede further from that line off thecoast, that is, “drop lower than that line”; in practice, such line should be “veryclose” to the low tide mark changing as a result of natural conditions.
The UNDivision for Ocean Affairs and the Law of the Sea (within the UN Secretariat), inits study, explains the wording “low – water line / low – water mark” as follows:“The line along a coast, or beach, to which the sea recedes at low water.”110 Thatis, in the opinion of the employees of that Division, that line reflected “normalpractice” of defining the low-water mark; accordingly, that line was put “onnautical charts unless the scale is too small to distinguish it from the high-water110A/CONF.62/L.76(1981),XVoff.Rec.153,169.90line or where there is no tide so that the high-and low – water lines are thesame.”111 The latter sentence, however, should not be viewed as accurate in allareas of the World Ocean.Under Art. 5 of the UNCLOS, the low-water line should be “marked onlarge-scale charts officially recognized by the coastal State.” Here, the term“maps” refers only to naval charts specifically produced for navigation purposes.Such charts display such information as the depth of the water layer, the seabedproperties, the configuration of the coast, lighthouses and other navigationalinstallations, navigational perils, etc.
Maps are issued in standard format. The scalerequired for a “large-scale” map varies depending on the navigational needs andthe extent to which the area in question is explored. A 1981 study of the futurefunctions of the UN General Secretary necessitated by the implementation of theUNCLOS, recommended, as the case may be, “the range of a scale may liebetween 1:50000 and 1:200000.”112The qualifying wording of Art. 5 of the UNCLOS on maps – “officiallyrecognized by the coastal State” – implies that the relevant sea maps do notnecessarily have to be produced by the coastal state itself.
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