диссертация (1169188), страница 21
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That state can, forinstance, adopt the maps prepared by a foreign hydrographic agency by“officially” prescribing their use by its own relevant agencies and vessel owners.Extremely relevant for practice are the commentaries to Art. 7 of theUNCLOS on straight baselines. The authors of the multi-volume Commentary tothe UNCLOS note that the key terms used in this article were borrowed from theabovementioned 1951 ICJ judgment in the case between the UK and Norway.In the study cited above, the Division for Ocean Affairs and the Law of theSea of the UN Secretariat gave the following definitions to the basic terms used inthat article, at times rather debatable and deviating from the ILC’s position:“Straight baseline” are a system of straight lines joining specified or discretepoints on the low-water line, usually known as straight baseline turning points.
A111UNOfficeforAffairsandtheLawoftheSea,Baselines:AnExaminationoftheRelevantProvisionsoftheUNCLOS,AppendixI(GlossaryofTechnicalTerms),at47,58.UNSales№E88.V.5.1989.112Supranote108,section7,para.(d),at169.91“Straight line” is mathematically the line of shortest distance between twopoints.”113 I cannot accept this position as legally correct. The erroneous nature ofthis definition is evident: according to both the ICJ judgment in the AngloNorwegian Fisheries case of 1951 and the above position of the ILC, the straightbaselines method per se is unrelated to the low-water line; in the ice-bound highlatitude areas of the Canadian Arctic, where Canada used the straight baselinesmethod, they do not overlap with the low-water line.
We might add also that it israther pointless to be talking about that line in the context of the high latitude ofthe North and predominantly perennial ice.Some remarks can also be made on other definitions of the UN Secretariat,too: “Cast” is the seashore, the narrow strip of land in immediate contact with anybody of water, including the area between high- and low-water lines.”114 Again, Ican’t accept this definition as legally perfect.First of all, why only a “narrow” one? And how “narrow”? Secondly, how togo about high-latitude coasts? None of these issues is, however, addressed in theEnglish Commentary to the UNCLOS at hand, where this document of the UNoffice is cited.115The Commentary stresses that Article 7 of the UNCLOS provides for twogeographic factors that allow using the straight baselines method to determine thelocation of particular straight baselines. The first one is where the coastline is“deeply indented and cut into”; the second one, “or if there is a fringe of islands inthe immediate vicinity.” The former wording was borrowed word-for-word fromthe above ICJ judgment of 1951.
As to the second one, it is a somewhat modifiedversion of the expression the Court used in the same judgment in discussinginstances where a number of islands of varying sizes is located along the coast soas to form an uninterrupted chain along the shore. The presence of only severalisolated islands is not sufficient, according to the Commentary’s authors, “to form113Supranote106,at47.114Ibid.115UNConventionontheLawoftheSea.ACommentary.Vol.II….P.95-103.92a continuous fringe along the coast.”116 Such groups of islands are in principleincluded into one of the following categories: (i) islands that apparently form asingle whole with the mainland; or (ii) islands located within some distance fromthe coast and forming a sort of a screen protecting a significant portion of the coastfrom the sea.
At the same time, that legal classification of islands has not beenendorsed in the treaty practice of states.As to the conventional wording of Art. 7(2) (concerning the instance wherethe coastline is “highly unstable”) – “notwithstanding subsequent regression of thelow-water line” – according to the opinion outlined in the Commentary, theregression of the low-water line is a rare phenomenon. In most cases, the estuary117widens rather than recedes, and even where storms cause serious erosion in theestuary, the estuary continues to protrude seaward with time.At the level of doctrine, it has been suggested that Art. 7, para. 2 issubordinate to paragraph 1 of the same article (which provides for the initial ruleon straight baselines) and “is not an alternative to it.” And that for para.
2 “to applythe coastline of the delta must satisfy the conditions set out in paragraph 1”.118Art. 7(3) of the 1982 UNCLOS contains, as correctly noted by the authors ofthe English Commentary, two requirements for straight baselines, both borrowedfrom the 1951 ICJ judgment.First of all, straight baselines must not depart to any appreciable extent fromthe general direction of the coast. That proposition mirrors the ICJ finding that “thedrawing of baselines must not depart to any appreciable extent from the generaldirection of the coast.”Secondly, the sea areas enclosed within those lines must be sufficientlyclosely linked to the land domain to be subject to the regime of internal waters.It is also noteworthy that both these requirements are qualifiers and notadditions.116Ibid.P.100.117A delta is, according to the English Commentary to the UNCLOS cited here, the mouth of the river, being thepoint where the river meets the relatively shallow area of the sea it flows into.118Supranote106,at21.93None of these qualifying requirements is phrased as a precise formula orsome mathematical calculation.The term “low-tide elevations” means, under Art.
11 of the 1958 Conventionon the Territorial Sea and Contiguous Zone and pursuant to Art. 13(1) of theUNCLOS, “a naturally formed area of land which is surrounded by and abovewater at low tide but submerged at high tide.” The 1958 Convention provides thatto use low-tide elevations as starting points for straight baselines, they should havelighthouses and other structures installed on them to always be above sea level. Inthe course of informal consultations at the 3rd UN Conference on the Law of theSea, some delegations claimed that that requirement was too burdensome for thestates that were unable to erect such installations for technical or other reasons, andcalled for its withdrawal.
It was noted, however, that the requirement on theerection of lighthouses or similar installations was beneficial for navigationpurposes, since low-tide elevations are not always discernible, especially ifvisibility is low. Installations, such as a lighthouse, can be towers or buildings,which “look like a lighthouse without serving any purpose specifically connectedwith navigation”, that is, warning vessel navigators of dangers, helping them todetermine the vessel’s location. To draw a straight baseline to a low-tide elevation,a state does not need to build a lighthouse on it – it is sufficient, for instance, as theauthors of the English Commentary to the UNCLOS believe, to erect a flag tower,a fog-horn, a radar reflector, etc.
119 It is more important to ensure that suchinstallations are visible at all stages of the tide – that is the correct interpretation.The second exceptional case allowing the drawing of straight baselines toand from low-tide elevations, pursuant to the same Art. 7(4), reflects Norway’scase recognized by the ICJ in 1951: one such straight baseline was drawn to andfrom a low-tide elevation, but the elevation itself had neither a lighthouse, nor anysimilar installation; the drawing of a straight baseline, however, “received generalinternational recognition.”119Supranote113,at102.94The conventional term “economic interests peculiar to the region concerned,the reality and the importance of which are clearly evidenced by long usage” (Art.7(5) of the UNCLOS) also derives from the 1951 ICJ judgment.
Such economicfactors “may” be taken into account in drawing “particular” straight baselines, onlyprovided that the method of straight baselines is already generally applicable byvirtue of Art. 7(1) discussed above.Art. 7(6) is based on Art. 4(5) of the 1958 Convention on the Territorial Seaand Contiguous Zone supplemented with a reference to the EEZ. It is intended toensure the coastal state’s access to the contiguous area of the EEZ or the high seas.Under Art.
9 of the UNCLOS, where a river “flows directly into the sea”, thebaseline is drawn straight “across the mouth of the river.”Based on Art. 7(2) analysed above (to the effect that where “the coastline ishighly unstable” because of the presence of a delta or “other natural conditions”,the coastal state may draw straight baselines in choosing the appropriate points“along the furthest seaward extent of the low-water line”), Art. 9 does not apply inthose cases.The problematic part of Art.
9 (its text being a reproduction of the wordingof the 1958 Convention on the Territorial Sea and Contiguous Zone) is its wording“[i]f a river flows directly into the sea…” The French text implies rivers that formno estuary: “Si un fleuve se jette dans la mer sans former estuaire ...” If the phrase“flows directly” is used in that sense – that is, “without forming an estuary” – asthe French text of the UNCLOS reads, then the practical scope of that Article maybe limited. Indeed, estuaries are the river exits to the sea, where the sea meets thefresh water flow – that are so common a phenomenon that, as the cited Englishinterpretation of the UNCLOS suggests, there are very few rivers that have none.In the Commentary to the UNCLOS, it is noted that when drafting thatArticle, the ILC intended the wording “if a river flows directly into the sea” tomean that a river flows into the sea forming no estuary, while estuaries are legallyequated to bays.
On the other hand, the Commentary authors concede that the95English text of that Article can also be construed as inclusive of the instance wherea river flows into the sea without forming a delta.Another issue of Art. 9 of the UNCLOS is that it lacks a clear provision thatwould define the location of the closing points on the river banks and themaximum length of the closing straight line. It is confined to a general statement –“between points on the low-water line of its banks.” The Commentary states thatthe rule of Art.
10 (regarding bays) should also apply to estuaries, “assuming thatmost estuaries would conform in configuration” with the conventionalrequirements for bays120.The maritime boundary in the river mouth is not a clear-cut line; it fluctuatesdepending on multiple factors. The mouth of a river flowing into the sea has aclearer status: as a rule, the mouth of such a river is found closer to the sea fromthe straight baselines set by the coastal state (rather than seaward from suchbaselines), and, consequently, belongs to its internal waters.Unlike Art. 10 (on the line closing a bay), Art. 9 is not limited to instanceswhere a river flows through the territory of just one state.Art. 10 defines “bay” and provides for a method to draw what is called astraight “closing line” serving to delimit the bay (internal waters) from theterritorial sea.
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