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Delimitation of Seaward Areas Under National Jurisdiction

Published online by Cambridge University Press:  20 April 2017

S. Whittemore Boggs
S. Whittemore Boggs*
Affiliation:
Special Adviser on Geography, Department of State
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Abstract

“… Since it is essential that all frontiers, whether on land or at sea, should be certain and definite, all rights which depend for their exercise upon territorial sovereignty must be valid up to a given line and there stop.” Very rarely, however, in treaties or in national laws are descriptions of water “boundaries” sufficiently precise to enable an engineer to lay them down on hydrographic charts, or to “demarcate” them in the waters themselves. About all one can say is that, if the base line is agreed upon, the outer limit of the territorial sea is acceptedas the envelope of the arcs of circles having a radius of three nautical miles (or any other agreed-upon limit) drawn from all points on the coast. The remark of Professor Riesenfeld may therefore be recalled: “It can probably be said without exaggeration that the law of territorial waters has been one of the most unsatisfactory portions of international law.”

Type
Research Article
Information
American Journal of International Law , Volume 45 , Issue 2 , April 1951 , pp. 240 - 266
Copyright
Copyright © American Society of International Law 1951

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References

1 H. A. Smith, The Law and Custom of the Sea (London, 1948), p. 17.

2 Most lines in water areas which are defined in treaties are not boundaries between waters under the jurisdiction of the contracting parties, but a cartographic device to simplify description of the land areas involved. For example, in the Alaska cession treaty of 1867, the line in Bering Sea and Bering Strait (Art. I) is simply a line to the east of which all land or claim to land was ceded by Russia to the United States. The purpose of such a line as a “line of allocation” of land is explicitly stated in the convention between Great Britain and theUnited States, January 2, 1930, defining a line between North Borneo and the Philippines (Dept. of State, Treaty Series No.856; Art. I defines “line separating the islands ” ) .

3 Stefan A. Riesenfeld, Protection of Coastal Fisheries under International Law (Washington, 1942), p. ix. But with reference to the study of the problem of territorial waters in general, as well as that of the protection of fisheries, on the part of “various institutes, associations, congresses and conferences, particularly those of an international character,” see Riesenfeld, op. cit., pp. 99-124.

4 An article on “National Claims in Adjacent Seas” by the present writer appears contemporaneously in the Geographical Review, April, 1951 (Vol. 41, pp. 185-209). It includes a 10-page table and isaccompanied by a world map in color showing which “contiguous zones,” and which countries claim jurisdiction or even sovereignty over a 200-mile belt, or over the difficult-to-define “continental shelf.” There is more agreement as to the width of the territorial sea than would at first appear. “At least 79 percent of the merchant shipping tonnage of the world is registered in countries that have subscribed to the 3-mile limit, and another 9.7 percent in Scandinavian countriesthat claim a 4-mile limit.” The best interests of the world community, it is suggested, may now require: (1) A narrow belt of waters under national sovereignties (leaving wide areas inwhich free movement is possible, in distant waters and the superjacent airspace); (2) Possible establishment of one or more contiguous zones, of limited jurisdiction for specific purposes, such as: (a) Customs surveillance; (b) Fishing rights and conservation; (c) Mineral resources of the continental shelf; and (d) Security.

5 In the article in the Geographical Review referred to above, the bearing ofthese scientific and technological developments is discussed in relation to: (a) security and neutrality; (b) merchant shipping; (c) fishing; (d) mineral exploitation; (e) sanitation, health and water pollution; and (f) air transport.

6 “The Continental Shelf,” in Transactions of the Grotius Society, Vol. 34, p. 159.

7 Authors who have written on water boundaries (and who have included maps and illustrations of the methods they describe) include: Vittorio Adami, Paul Fauchille, Paul de Lapradelle, Gilbert Charles Gidel, and Kyösti Haataja.

8 H. A. Smith remarks: “ I t may be that neither sailors nor geographers have been allowed their fair share in the draftings of these [delimitation] documents” (op. oit., p. 12).

9 The present article embodies a first attempt to formulate generally acceptable principles and techniques for the delimitation of all types of boundaries of the territorial sea, and of any and allcontiguous zones that the world community may desire to recognize or to establish. The writer would not have the temerity to attempt so much of the solution of this complex problem, however, were it not for his firm belief: (1) in the integrity of the universe and its Maker, and in what Benjamin Franklin called “the providence of God in the government of theworld” (to be discerned in the emerging possibilities of fulfilling many of the highest aspirations of man if we have the necessary courage, vision, imagination, wit and persistence); (2) in Confucius' rubric, “When the archer misses the center of the target, he turns around and seeks for the cause of his failure within himself”; and (3) in the premise that it is much better, whenever feasible (as in this case), to tackle a problem as a whole instead of pieeemeal. The writer has been intrigued by the phrase “looking out for help” in Justice Cardozo's reference to Haldane who, in his autobiography, noted that “the judges [on the Supreme Tribunals], were keen about first principles and were looking out for help from the advocate.” (Selected Writings of Benjamin Nathan Cardozo (New York, 1947), pp. 30-31.) Therefore the hope is entertained that the present article will help, in some degree, to stimulate thinking along constructive lines, to facilitate clear-cut expression of claims, to aid in solving emerging problems, and to narrow the zone of future conflicts.

10 The distinction between “demarcation” and “delimitation” made by Col. Sir Henry McMahon, which is now generally accepted, is this: “ 'Delimitation' I have taken to comprise the determination of a boundary line by treaty or otherwise, and its definition in written, verbal terms; 'Demarcation' to comprise the actual laying down of a boundary line on the ground, and its definition by boundary pillars or other similar physical means.”See S. W. Boggs, International Boundaries: A Studyof Boundary Functions and Problems, p. 32, for reference to sources.

11 While engaged in writing this article the writer spent several days on. surveying ships off the coasts of New Jersey and New York, through the courtesy of the U. S. Coast and Geodetic Survey, to be sure he had escaped from the office-desk viewpoint, to observe the means used in obtaining positions with reference to latitude and longitude shown on sailing charts and to objects visible on shore, and to get the criticism of the ships' commanders regarding the principles and techniques presented in this article, then in draft form.

12 Although it should be obvious from the context, the writer wishes to make it clear that he alone is responsible for the opinions, viewpoints and proposed solutions of problems in the present article. In discussing the draft manuscript with colleagues and friends he has stressed his desire to write with complete independence, and has invariably met with sympathy and approval in that regard. He appreciates the fact that probably in no other country could a writer in an analogous position present his own views and suggestions so freely.

13 League of Nations Doe. 0.351(b).M.125(b).1930.V(Minutes of the Second Committee), pp. 202, 213.

14 See Francis P. Shepard, Submarine Geology (New York: Harpers, 1948), p. 68. But for legal purposes somewhat different technical definitions have been given in some instances. For example, in theBorax case (Borax Consolidated, Ltd. et al. v. Los Angeles) decided by the U. S. Supreme Court in 1935 (296 U. S. 10-27), the rule of the Court of Appeals was affirmed, which took as the high-water mark constituting the limit of the tideland the “mean high tide line,” and directed that “an average for 18.6 years should be determined as near as possible by observation or calculation.”

15 U. S. Coast and Geodetic Survey, Tide and Current Glossary (Spec. Publication No. 228, 1949 ed., p. 20). See p. 23 for definitions of “Mean low water,” “Mean low water springs,” and “Mean lowerlow water.”

16 This group of definitions is taken from the report of the U. S. representatives on the International Committee on Nomenclature of Ocean Bottom Features. It is therefore still subject to technical improvements by experts in the field.

17 100 fathoms is exactly 600 ft. or 182.88 meters; 200 meters is exactly 109.36 fathoms.

18 An additional category was originally planned: Zones of access to the high seas, by surface and air, for states apparently denied access from relatively short coasts on bays or gulfs, because the usual delimitation techniques would pinch them off from the high seas. Problems would have been considered such as those of the Gulf of Aqaba, where both Israel and Jordan have very short coasts, between those of Egypt and Saudi Arabia, and where the differences of navigability by surface ships and maneuverability of airplanes within zones of access that might be delimited by special techniques are significant. But each case is almost unique; general principles could be stated, but perhaps no techniques of wide applicability could be evolved.

19 An article by the present writer, entitled “Delimitation of the Territorial Sea: the Method of Delimitation Proposed by the Delegation of the United States at the Hague Conference for the Codification of International Law,” appeared in this JOURNAL, Vol. 24 (July, 1930), pp. 541-555. The full text of the American amendment of March 27, 1930, and reproductions of the five illustrations appear in the L. of N. Acts of the Conf. for the Codification of Int'l. Law … Vol. III , Minutes … Doc. C.351(b).M.145(b).1930.V, pp. 197-201.

As a technical adviser to Mr. Hunter Miller, the United States delegate in the Second Committee (on Territorial Waters), the writer served as a member of the Technical Sub-Committee, and worked for nearly a month with the technical men from the thirty-eight other participating countries—not counting the Soviet Union, which sent only three observers. Out of the welter of divergent claims and suggestions came “the proposal of the delegation of the United States of America which was submitted at the Conference at the session of March 27, 1930, [which] represented an attempt to view all of the problems of delimitation [of the seaward and landward limits of the territorial sea] as a whole, and to set forth a body of rules both simple in application and definite in result” (Boggs, loc. cit., p. 541). The proposal was very favorably received and was discussed at length in sessions of the full Second Committee. But, as not infrequently happens in international conferences, the technical specialists were much nearer agreement than the political delegates.

Vice Admiral Henry G. Surie, the very able Chairman of the Technical Sub-Committee, in acknowledging a reprint of the article referred to, concluded: “ I am sure if at any moment the Codification Committee of the League of Nations will retake the problem of the Territorial Sea, your method of delimitation will be adopted as being, as you so justly said in the last line of your article, simple, impartial and clear.”

These American amendment techniques have been used at least in the following official United States studies and reports:

(a) On a series of U. S. C. & G. S. charts of the United States especially prepared for use by the U. S. Tariff Commission in an investigation of fishing problems, under Senate Resolution 314, 71st Cong., 2d Sess., adopted July 2, 1930, 72 Cong. Rec. 12376; the report of the Commission states: “The line was drawn for the purposes of this investigation in accordance with the method of delimitation proposed by the delegation of the United States at The Hague Conference for the Codification of International Law at the session of March 27, 1930. The details of this plan are given in the American Journal of International Law for July, 1930.” (S. Doc. 8, 72d Cong., 1st Sess., pp. 1-2.)

(b) The techniques were used, with minor adaptations, by the U. S. Bureau of the Census to determine the areas within the outer limits of the United States, and of the individual States, in coastal waters and the Great Lakes, for the 1940 Census (16th Census of the United States, 1940, Vol. 37, p. 2).

(c) The Department of Justice has urged adoption of these techniques in cases now pending before the U. S. Supreme Court.

20 This JOURNAL, Vol. 24 (July, 1930), p. 541.

21 For a graphic indication of the “navigator's method of ascertaining whether he is in territorial waters or on the high sea” see this JOURNAL, Vol. 24 (1930), p. 546, Fig. 2; or see the same in Gilbert Charles Gidel, Le Droit International Public de la Mer, Tome III, La Mer Territorial et la Zone Contigüe, Planche I, Fig. 5.

22 This JOURNAL, Vol. 24 (1930), p. 544.

23 In the compilation of the map entitled “World: National Claims in Adjacent Seas,” referred to above, footnote 4, and in the accompanying table, the United States is represented as claiming a contiguous zone 12 miles wide (i.e., including the 3-mile territorial sea). This may surprise some people, but the provisions of the Tariff Act of 1790 relating to customs inspection, which have been repeated in all subsequent tariff acts, are strictly analogous to the criteria employed by the writer in determining whether other countries claim a contiguous zone.

24 A development relating to “contiguous zones” that may be reasonable is suggested below. The high seas are generally acknowledged to be res communis. The sea bed and its subsoil somewhat beyond the 3-mile limit, or at least their exploitable natural resources, have been assumed by several nations in recent years to be res nullius over which they therefore have the right to make unilateral assertions of jurisdiction, and in somecases full sovereignty. There may be two very great resources, hitherto practically untapped, beyond the seaward limit of the territorial sea: (a) petroleum and possibly other minerals; and (b) marine life in the productive levels of the sea perhaps 200 to 1,000 feet beneath the surface. Little is known of the latter at present, but marine biologists and oceanographers are attempting systematic studies of the possible utilization of these elusive resources. The seas cover nearly three-fourths of the earth's surface, and the importance of subsurface marine life as a source of proteins and vitamins and other needed materials may be great by the time a knowledge of the population structure of individual marine species is acquired, and when gear is devised to harvest the crop. The significance here is that the net revenues that will in time be available from the exploitation of minerals and marine life in the vast sea areas that come to be regarded as res communis, may eventually be very considerable, and it might be agreed upon as an independent source of income for the international agencies, especially the United Nations and the specialized agencies. Because sucB exploitation depends almost entirely upon the development of new techniques, it would not deprive any nation of a present source of income.

25 The base line proposed in the Report of Sub-Committee No. II [the “Technical Sub-Committee”] at the Hague Conference, 1930, was defined as follows: “Subject to the provisions regarding bays and islands, the breadth of the territorial sea is measured from the line of low-water mark along the entire coast.” “For the purposes of this Convention, the line of low-water mark is that indicated on the charts officially used by the Coastal State, provided the latter line does not appreciably depart from the line of mean low-water spring tides.”

26 A good example of a chart on which both the high-tide coastline and the low-tide line are indicated, and the zone normally covered and uncovered each tidal day (once or twice, depending on the type of tide in the area), is U. S. Hydrographic Office chart No.3218, approaches to the Yangtze River, scale c. 1: 121,000, on which soundings are shown in feet “reduced to the approximate level of Lowest Low Water.” As this is a regionof relatively large differences between high and low tides, and also one of silt deposition from the Yangtze River, a coastal zone ranging up to about 5 nautical miles wide appearson the chart, showing in a special color the land between low and high tides, and tidal differences up to 18 ft. Similarly these areas that uncover at low tide are shown adjacent to islands; and isolated mudflats that entirely cover at high tide appear as“islands” in this special color. This is the ideal type of chart from which to delimitthe territorial sea—where precise delimitation is desired—because the low-tide line isclearly indicated.

But in almost all parts of the world the strip of land that covers and uncovers withthe tide is so narrow that it is scarcely mappable at the scales of ordinary hydrographic charts, frequently not being much wider than the width of a line on the printed chart.The low-water base line from which the territorial sea is delimited is therefore usuallynot shown on published charts.

A series of tide tables, giving predictions for a year, is published annually by the U. S. Dept. of Commerce Coast and Geodetic Survey, which covers the world in 4 volumes. Typical tide curves are shown in the introductory pages, and provide graphic illustration of the very great differences in the characteristics of tides in different parts of the world.

27 See this JOURNAL, Vol. 24 (July, 1930), pp. 550-651, and Fig. 5 (p. 547).

28 Report of the Second Commission (Territorial Sea) [L. of N. Doc. C.230.M.117. 1930.V.], p. 11.

29 Especially the rule for small “bays” using a graphic method, with one-fourth ofthe distance between salient points (“headlands”) as the radius of arcs for “envelopes”and comparing the area with that of the semi-circle of the same radius (Fig. 5,this JOUBNAL, Vol. 24 (1930), p. 547).

30 When Col. Lawrence Martin was engaged in the study of the Michigan-Wisconsinboundary question he requested the writer to make a Btrict delimitation of the medianline in Lake Michigan. The technique then developed was made use of, the writer isinformed, by the Supreme Court in preparing its decree of March 16, 1936 (297 U. 8.547-52), which corrected the boundary description in the Green Bay section as given in its decree of Nov. 22, 1926 (272 TJ.8. 398). That study led to the writer's article “Problems of Water Boundary Definition” in the Geographical Eeview, Vol. 27 (1937),pp. 445-456, which is reproduced (with minor revisions), with permission, in the author'sInternational Boundaries, as Chapter X, “Water Boundaries.” See pp. 178-185 in thelatter for the elimination of unworkable concepts, with illustrations of certain impracticableverbal and “landsman's viewpoint” concepts, and maps showing strict medianlines in Lakes Erie and Michigan.

31 See the writer's International Boundaries, p. 188, Fig. 25, with its explanatory text.

32 See ibid., p. 190, Fig. 26 and its explanatory text. That illustration is based on the problem presented between Panama and the Canal Zone at the Pacific end. The salient points on the mainland and on the islands are identical with those on an accurate mapof the Canal Zone and Panama, although the coasts and islands were modified elsewhere,and the illustration was rotated to provide a more convenient position for the legend.But the geometrical line A-B-C-(etc.)-K is identical with the writer's conception of a proper boundary in these waters, because of the identity of the salient points.

The boundary problem in this area was studied because of the claim arising from the collision of the S.S. David (Panamanian) and the S.S. Yorba Linda (U.S.A.), May 11, 1923. The decision of the U.S.-Panama General Claims Commission stated: “ … While the treaties undoubtedly fix the boundary between Panamanian territorial waters and the territorial waters of the Canal Zone, it is clear that they do not purport to fix the seaward limit of the territorial waters of the Canal Zone. That is left to the rules of international law” (italics added). See U. S. Dept. of State, Arbitration Series No. 6 (1934), pp. 765-820; also this JOURNAL, Vol. 28 (1934), p. 596; and Hudson, Cases on International Law (2nd ed.), p. 624.

33 The desire to establish claims to jurisdiction, even to sovereignty in some instances,may be ascribed in part to chauvinistic cartography, because it sometimes seems gratifying,especially to some government officials, to point to expansive zones on the map as if they were universally accepted as national territory. It should be remembered that the supposed value of the “continental shelf” lies largely in the possibility of extractingvast quantities of petroleum from the submarine subsoil—witness “Lake Maracaibo”and its great production. Two facts should be kept in mind: (1) that petroleum isfound beneath only a small percentage of the land surface of the earth, and that geologically its occurrence in the “continental shelf,” however extensive, presumably islimited to a small portion of the total “shelf”; and (2) that in stormy seas it may be feasible to extract petroleum only in relatively shallow waters for many years to come.The feasibility of conducting petroleum operations in oceanic waters more than, say,150 feet or 50 meters deep may be quite remote. Discretion suggests the unwisdom ofbecoming greatly concerned regarding precise delimitation of seaward areas of national jurisdiction in waters 600 feet or 200 meters deep, near the outer edge of the “continentalshelf.”

34 The method here suggested would provide the “equitable principles” for accord between the United States and a neighbor state which are referred to in Presidential Proclamation No. 2667, signed Sept. 28, 1945 (Fed. Reg., Vol. 10, Oct. 2, 1945 p. 12303; also this JOURNAL, Supp., Vol. 40 (1946), p. 45). Various decrees and laws of otherstates since that date similarly call for accord on the basis of equitable principles.

35 An attacheé of one of the embassies in Washington asked the writer several years ago to show him how to lay down a “boundary” between Colombia and Venezuela in these waters. No literature on such techniques was found, and several hypotheses were formulated and tried successively. Perhaps no more interesting problem of this sort could have been posed, for the example has about all possible variations.

36 If greater refinement in the lateral jurisdictional line were desired, it could be developed at increments of one mile from the outer limit of territorial waters. In a region known to be highly mineralized and in which mining operations are believed to be practicable it would seem desirable to map the coasts accurately, and then to lay down thelateral boundary of the most sensitive and accurate type—on the “median line” principle,every point being equidistant from the nearest points on the shores of the two states concerned. But otherwise the adoption of 3-mile increments would seem mostfeasible and altogether fair and adequate. Every 3-mile-increment turning point is actuallya point on the line drawn on the strict “median line” principle; and it is appreciably easier to lay down on the chart than the true “median line.”

In laying down one of these lateral jurisdictional lines on a chart it is important touse a beam compass, so that both the pivot-point and the pencil-point are always perpendicular to the chart on which the line is being developed. An ordinary compass,with spreading points, becomes very inaccurate as the distances from the coast increase.And if ordinary charts are used in high latitudes (especially Mercator charts) it is essential to take into consideration the changing scale as the distance from the equator increases:one minute of latitude equals one nautical mile at the particular latitude.

37 A phrase employed in an article on “Mapping Some Effects of Science on Human Relations” (Scientific Monthly, Vol. 61 (1945), pp. 45-50, a subject in which the writer has had a special interest for several years.

38 See the author's International Boundaries, Fig. 25 (p. 188), for the method of laying down such an extension of the boundary through the territorial sea. By laying down the 3-mile arcs from each country as if its neighbor's land were sea, an intersection of arcs from the two countries will be found, even where their land boundary terminates at a salient point.