диссертация (1169188), страница 22
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For the purposes of the Convention, that Article also distinguishes aspecial status – that of “historic” bays.121On the whole, the legal test for qualifying an indentation as a bay providedin Art. 10 of the UNCLOS, is inapplicable to 1) bays coasting on more than onestate (para. 1); 2) the so-called “historic” bays (para. 6); and, 3) bays alreadysubject to straight baselines under Art. 7.Pursuant to Art.
10(4), if “the distance between the low-water marks of thenatural entrance points of a bay does not exceed 24 nautical miles, a closing line120Ibid.121On the institute of historic bays and other historic waters in international law see: Brown E.D. op. cit. Vol. I. P.31-40.
It is only regrettable that the English professor had not studied the applicability of the institute of historicwaters to the Arctic. Here, see Mezhdunarodno – pravovaya kvalifikatsiya morskikh raionov v kachestveistoricheskikh vod (teoriya i praktika gosudarstv) [International Legal Qualification of Maritime Regions as HistoricWaters (Theory and State Practice)] /Ed.
by A.N. Vylegzhanin; IMI MGIMO (U) MID Rossii. – Moscow: MGIMOPress – University, 2012. 112 P.96may be drawn between these two low-water marks, and the waters enclosedthereby shall be considered as internal waters.” It is pertinent to note here that theICJ found, in trying the case on the Gulf of Fonseca (1992), that the “closing line”of a bay constitutes the baseline to measure the breadth of the seaward contiguousarea irrespective of its legal regime, but such a regime should differ from theregime of the area located towards the mainland from the closing line. As theCourt noted, “There can be no serious doubt that the closing line of an historic bayis the baseline of the territorial sea.
To hold otherwise would be incompatible withthe legal status of a bay.”122Art. 10(6) excludes from the above qualification of indentations as bays “theso-called historic bays”. Scholars believe that the word “so-called” is superfluous:Art. 15 of the UNCLOS uses the words “historic title” (instead of “so-called…title”), Art. 298 (in para. l) of the Convention refers to disputes concerning“historic bays or titles.” In the Anglo-Norwegian Fisheries case of 1951, theICJ explained that “historic waters” “usually mean waters which are treated asinternal waters but which would not have that character were it not for theexistence of an historic title.”The UNCLOS does not, however, contain any definition of “historic title” or“historic bay.”The ICJ in its decision in the El Salvador / Honduras case, already citedabove, 1992, stated that the provisions of Art.
7 of the 1958 Convention and Art.10 of the UNCLOS “can reflect general customary law.”The preparatory legal steps and respective documents applicable to theemergence in contemporary international law of the notion of “historic bays” havebeen examined in a Russian study. It supplies a characteristic to the UN GeneralAssembly’s Resolution 1453 ( X I V ) dated 7 December 1959 (recommending theILC to look into the legal regime of historic waters, including historic bays); theILC’s request to the UN Secretariat at its 1960 session to conduct a study of the122Land,IslandandMaritimeFrontierDispute(ElSalvador/Honduras:Nicaraguaintervening),1992ICJReports351,607,para.417.97legal regime of historic waters, including historic bays; the UN Secretariat’s study“Juridical regime of Historic Waters, Including Historic Bays”; and the conclusionof that work of the ILC and the UN General Assembly.123Art.
13 of the UNCLOS, that already defines the above-cited term “low-tideelevations”, authorizes their use in determining baselines. Here, the key issue iswhether a low-tide elevation may be used as a reference point, and the answer tothat depends on the distance of such elevation from the respective coast (on themainland or an island). Art.
13 should be interpreted primarily in conjunction withArt. 7(4) on the use of low-tide elevations for the coastal state’s drawing of straightbaselines.The wording of Art. 13(1) of the UNCLOS (a “low-tide elevation” is a“naturally formed area of land which is surrounded by and above water at low tidebut submerged at high tide”) can be read as meaning that such an elevation cannotonly be a rock at low-tide, but also a shoal, and that its size does not affect theabove legal status. That interpretation corresponds to the term “drying rock anddrying shoals”, used by the ILC in Art.
11 of its Articles on the Law of the Sea.The foregoing context of Art. 13 of the UNCLOS allows the coastal state touse low-tide elevations as baseline points to measure the breadth of the territorialsea, if they are located “wholly or partly” within the distance from the mainland orisland coast “not exceeding the breadth of the territorial sea.” In such cases, thelow-water mark from such an elevation may be used as a baseline. When a lowtide elevation is fully located within a distance exceeding the breadth of itsterritorial sea, it “has no territorial sea of its own.” In that case, however, theelevation may be used as a point to and from which the state may draw straightbaselines, if it has a lighthouse or a similar installation, or if such baselines havereceived general international recognition pursuant to Art. 7(4).Given the differences in the coastlines of states, various unique geographicand other characteristics referred to in Art.
6-13 of the UNCLOS, its Art. 14123Mezhdunarodno-pravovaya kvalifikatsiya morskikh raionov v kachestve istoricheskikh vod (teoriya i praktikagosudarstv) [International Legal Qualification of Maritime Regions as Historic Waters (Theory and State Practice)]/Ed. by A.N. Vylegzhanin; IMI MGIMO (U) MID Rossii.
– Moscow: MGIMO Press – University, 2012. 112 P.98confirms the coastal state’s right to combine methods for determining baselines formeasuring the breadth of its territorial sea. It should be noted that no similar rulecan be found in any of the 1958 Geneva Conventions on the Law of the Sea, butthat state practice has always followed it.There is, however, the issue of the meaning of the wording “in turn” in theEnglish text of the UNCLOS.
Its traditional meaning is “each in the relevantsequence.” In the French text of the UNCLOS, this expression (“in turn”) isconveyed by the wording “en function des differentes situations”, that is, «взависимости от различных обстоятельств»(“depending on variouscircumstances”) if translated into Russian. This is why the English “in turn” andthe Russian «поочередно» here do not mean “turn”, as a sequence from a straightbaseline to normal baseline, but rather something along the lines of “according tothe circumstances”; that is, depending on the respective circumstances, a state mayapply straight baselines exclusively along its entire Arctic coast (as, for instance,done by Canada).
This approach is reflected in the English, Russian and Frenchheading of the article that uses the words “combination of methods”, «сочетаниеметодов», and «combinaison de methods».The objective of Art. 16 of the UNCLOS (on the publication of charts andlists of geographical coordinates of maritime boundaries) is to guarantee that theinternational community is duly informed of the limits of the coastal state’sinternal waters and territorial sea, including the baselines, the width of sea areasunder its sovereignty, i.e.
the coordinates of the delimitation line between suchareas and the neighbouring state. The availability of such information is intendedto (i) promote respect for the coastal state’s sovereignty over its territorial sea; and,(ii) to make available adequate information on the maritime boundaries so as tomitigate the risks of violations of the rules of innocent passage in the coastal state’sterritorial sea in international navigation (where, for example, a vessel captainmistakenly takes some part of the territorial sea for a high seas or EEZ area).Art.
16(1) provides for the coastal state’s obligation to specify on the navalcharts: (i) the baselines determined pursuant to Art. 7 (straight baselines); Art. 999(mouths of rivers); Art. 10 (bays); the outer limits of its territorial sea measuredfrom such baselines; and, (ii) the limits of the territorial sea drawn in accordancewith Art. 12 (on the inclusion of roadsteads within the territorial sea) and Art. 15(on the delimitation of the territorial sea between states with opposite or adjacentcoasts). In the alternative, such baselines, the outer limits of the territorial sea anddelimitation lines may be substituted for a list of geographical coordinates of therespective points.Art.
16(2) obliges the coastal state to give due publicity to such charts orlists of geographical coordinates. Moreover, a copy of each such chart or list is tobe deposited with the UN Secretary-General. That obligation corresponds to otherstates’ right to receive such information.If charts are substituted for the said list of geographical coordinates ofpoints, that list should define “geodetic datum”. The UN Secretariat’s Division forOcean Affairs and the Law of the Sea explains the term “geodetic datum” asmeaning the underlying basis for such geographical coordinates124.While charts give a visual perception of the limits of the territorial sea, thelists of geographical coordinates ensure greater precision irrespective of the chartprojection used. Although Art. 16 of the UNCLOS allows using any method formarking boundaries, in practice it would be useful to use both the naval chart (forillustration) and list of coordinates (to mark the specific location).Art.
16(2) provides for an obligation: the coastal state must “give duepublicity” to the said naval charts and lists of geographical coordinates. Thatwording is also used in the reference to naval charts and lists of coordinatesindicating the location of baselines, outer limits and other boundaries in Art. 47(9),75(2), 7(9), and 84(2) of the UNCLOS. In discussing the topic of baselines, the UNSecretariat’s Division for Ocean Affairs and the Law of the Sea explains theexpression “give due publicity” as “notification of a given action for generalinformation through appropriate authorities within a reasonable amount of time in124UNConvention…ACommentary…Vol.II…P.148.100a suitable manner”.125 I do not think that this rule will be easily implemented forreasons to be noted further.The coastal state “shall deposit a copy of each such chart or list with theSecretary-General of the United Nations” (Art.
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