UNITED STATES V. LOUISIANA, 394 U. S. 11 (1969)
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U.S. Supreme Court
United States v. Louisiana, 394 U.S. 11 (1969)
United States v. Louisiana
No. 9, Orig.
Argued October 14-15, 1968
Decided March 3, 1969
394 U.S. 11
ON CROSS-MOTIONS FOR THE ENTRY OF A SUPPLEMENTAL DECREE
AS TO THE STATE OF LOUISIANA
Syllabus
In United States v. Louisiana, 363 U. S. 1, the Court held that, by the Submerged Lands Act of 1953, the United States had quitclaimed to Louisiana lands underlying the Gulf of Mexico within three geographical miles of the coastline, the United States being declared entitled to the lands further seaward. The decree and the Act defined "coast line" as "the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters." The United States and Louisiana filed cross-motions for a supplemental decree designating the boundary of the lands under the Gulf owned by Louisiana, the parties differing primarily with respect to that part of the coastline consisting of "the line marking the seaward limit of inland waters." The United States contends that the definitions of "inland waters" contained in the international Convention on the Territorial Sea and the Contiguous Zone (hereafter Convention) should determine the location of that line, while Louisiana urges that the governing boundary is a line it calls the "Inland Water Line" which was fixed by the Commandant of the Coast Guard pursuant to an 1895 federal statute which directed the drawing of "lines dividing the high seas from rivers, harbors, and inland waters." Louisiana urges, alternatively, that the decree proposed by the United States reflects an overly strict construction of the Convention's provisions.
Held:
1. That part of Louisiana's coastline which, under the Submerged Lands Act, consists of "the line marking the seaward limit of inland waters," is to be drawn in accordance with the Convention's definitions. Pp. 394 U. S. 17-35.
(a) Congress deliberately "chose to leave the definition of inland waters . . . in the Court's hands" (United States v. California, 381 U. S. 139, 381 U. S. 157), and did not intend to tie the meaning of "inland waters" to the 1895 Act, which was enacted to separate the areas in which shipping must follow inland navigation rules from those in which it must follow international rules. Pp. 394 U. S. 19-21.
(b) In United States v. California, the Court held that the Convention's definitions were "the best and most workable. . . available," and adopted them for the purposes of the Submerged Lands Act. P. 394 U. S. 21.
(c) Nothing in either the enactment of the 1895 Act or in its administration indicates that the United States has treated the "Inland Water Line" as a territorial boundary. The reasonable regulation of navigation is not alone a sufficient exercise of dominion to constitute a claim to historic inland waters; and, in any event, no such claim can be made in the face of longstanding disclaimers of historic title and the absence of any treatment of the "Inland Water Line" by the United States as delimiting an area within which it can exercise jurisdiction over anything but navigation. Pp. 394 U. S. 21-32.
(d) The Court's adoption, in United States v. California, of the Convention definitions was "for the purposes of the Submerged Lands Act," and not simply for the purpose of delineating a particular State's coastline. If the inconvenience of an ambulatory coastline proves substantial, the problems may be resolved through legislation or agreement between the parties. Pp. 394 U. S. 32-35.
2. Though the Court is able, on the basis of the materials now before it, to decide many issues involving application of the Convention to the Louisiana coast, the Court has decided to refer to a Special Master several particularized disputes over the precise boundary between submerged Gulf lands belonging to the United States and those belonging to Louisiana, since resolution of several of such disputes cannot be made without evidentiary hearings, and resolution of others in this technical and unfamiliar area would benefit from the preliminary judgment of a detached referee. Pp. 394 U. S. 35-78.
(a) Dredged channels in the Gulf leading to inland harbors, not being raised structures, do not come within the category of "permanent harbour works" forming "an integral part of the harbour system," which are to be considered part of the "coast" under Article 8 of the Convention, and, therefore, that provision does not establish such channels as inland waters. Pp. 394 U. S. 36-40.
(b) By application of Article 11 to the Louisiana coast, the low tide elevations situated in the territorial sea (here the three-mile grant to Louisiana under the Submerged Lands Act) as measured from bay-closing lines are part of the coastline from which the Act's three-mile grant extends. Pp. 394 U. S. 40-47.
(c) Article 7 of the Convention permits (in paragraph 4) a 24-mile maximum closing line for bays and (in paragraph 2) a "semicircle test" for determining the sufficiency of the water area enclosed (which requires that a bay must embrace at least as much water area within its closing line as would be contained in a semicircle with a diameter equal to the length of the closing line). "Outer Vermilion Bay," an area within a closing line from Tigre Point to Shell Keys, does not qualify as a bay under the semicircle test, because it would be part of a larger indentation whose closing line far exceeds the 24-mile limit. Pp. 394 U. S. 48-52.
(d) "Ascension Bay," whose headlands are jetties at Belle Pass on the west and Southwest Pass on the east, includes the inner bays of the Barataria Bay-Caminada Bay complex, which are separated from the outer indentation only by a string of islands across the bays' entrances. Ascension Bay meets the semicircle test when the islands are treated (as provided by Article 7(3)) "as if they were part of the water area." Pp. 394 U. S. 52-53.
(e) Though East Bay does not meet the semicircle test on a closing line between its seaward-most headlands, Louisiana contends that a part of that indentation qualifies as a bay simply because a line can be drawn within it which would satisfy the semicircle test; however, no such area can qualify as a bay unless its own features, not those of the larger indentation, meet the requirements specified in Article 7(2), as well as the semicircle test therein. Pp. 394 U. S. 53-54.
(f) Where islands intersected by a direct closing line between the mainland headlands create multiple mouths to a bay (the situation with respect to the Lake Pelto-Terrebonne Bay-Timbalier Bay complex), the bay should be closed by lines between the natural entrance points on the islands, even if those points are landward of the direct line between the mainland entrance points. Pp. 394 U. S. 54-60.
(g) The Convention does not prohibit the drawing of bay-closing lines to islands where (as is true of much of the Louisiana coast) insular configurations really are "part of the mainland", and it is left to the Special Master initially to determine whether islands which Louisiana has designated as headlands of bays are so integrally related to the mainland as realistically to be parts of the "coast" within the meaning of the Convention. Pp. 394 U. S. 60-66.
(h) Fringes or chains of islands are treated the same as other islands, and are not taken into account as enclosing inland waters
unless, under Article 4, the coastal nation decides in the conduct of its international affairs to draw straight baselines joining appropriate points. The United States, within its discretion, has decided not to draw straight baselines along the Louisiana coast, and this exercise of discretion is not appropriately subject to review by the Court. Pp. 394 U. S. 66-73.
(i) The Court leaves to the Special Master the task of determining whether any of the Louisiana coastal waters are "historic bays" within the meaning of Article 7(6), and the Special Master should consider state exercises of dominion as relevant to the existence of historic title. Pp. 394 U. S. 74-78.
MR. JUSTICE STEWART delivered the opinion of the Court.
In United States v. Louisiana, 363 U. S. 1, the Court held that, by the Submerged Lands Act of 1953, [Footnote 1] the United States had quitclaimed to Louisiana the lands underlying the Gulf of Mexico within three geographical miles of the coastline. [Footnote 2] The United States was declared
entitled to the lands further seaward. In the decree, as in the Submerged Lands Act, "coast line" was defined as
"the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters. [Footnote 3]"
We reserved jurisdiction
"to entertain such further proceedings, enter such orders and issue such writs as may . . . be deemed necessary or advisable to give proper force and effect to this decree. [Footnote 4]"
Before the Court now are cross-motions by the United States and Louisiana [Footnote 5] for a supplemental decree designating the boundary of the lands under the Gulf owned by Louisiana. [Footnote 6] The segments of that boundary line that
lie three miles outward from "that portion of the coast which is in direct contact with the open sea" are, for the most part, easily determinable. The controversy here is primarily over the location of that part of the coastline that consists of "the line marking the seaward limit of inland waters."
More than three years ago, in United States v. California, 381 U. S. 139, we held that Congress had left to the Court the task of defining "inland waters," and we adopted for purposes of the Submerged Lands Act the definitions contained in the international Convention on the Territorial Sea and the Contiguous Zone, ratified by the United States in 1961. [Footnote 7] The United States asserts that the same definitions should determine the location of the "line marking the seaward limit of inland waters" of Louisiana. Louisiana, on the other hand, contends that this line has already been determined pursuant to an 1895 Act of Congress which directed the drawing of "lines dividing the high seas from rivers, harbors and
inland waters," and has proposed a decree based upon this contention. Alternatively, Louisiana argues that, even assuming the applicability of the definitions contained in the Convention on the Territorial Sea and the Contiguous Zone, the decree proposed by the United States reflects too restrictive a construction of the Convention's provisions in derogation of relevant principles of international law.
I
THE "INLAND WATER LINE"
Comprehensive congressional regulation of maritime navigation began with the Act of April 29, 1864, [Footnote 8] which promulgated rules applicable to all vessels of domestic registry on any waters. These rules were patterned on emerging international standards, and, when most other maritime nations subsequently changed their rules, the United States Congress in 1885 enacted conforming "Revised International Rules and Regulations" to govern American ships "upon the high seas and in all coast waters of the United States, except such as are otherwise provided for." [Footnote 9] The 1864 Act was therefore repealed except as to navigation "within the harbors, lakes, and inland waters of the United States." [Footnote 10] In 1889, the International Maritime Conference drafted new International Rules, which were promptly adopted by Congress. [Footnote 11] Article 30 of those rules provided that
"[n]othing in these rules shall interfere with the operation of a special rule, duly made by local authority, relative to the navigation of any harbor, river, or inland waters. [Footnote 12] "
The United States already had, in the 1864 Act, such special inland rules for ships of American registry. In order to clarify the areas and ships to which the International and Inland Rules would respectively apply, [Footnote 13] Congress, in 1895, provided that the rules of the 1864 Act were to govern the navigation of all vessels "on the harbors, rivers and inland waters of the United States." [Footnote 14] The 1895 Act went on to provide:
"The Secretary of the Treasury is hereby authorized, empowered and directed from time to time to designate and define by suitable bearings or ranges with light houses, light vessels, buoys or coast objects, the lines dividing the high seas from rivers, harbors and inland waters."
The authority thus vested in the Secretary of the Treasury has since been transferred several times to various federal officials, and now resides with the Commandant of the Coast Guard; [Footnote 15] and, from time to time, the lines authorized by the 1895 Act have been designated along portions of the United States coast. When the Submerged Lands Act was passed in 1953, such lines had been drawn in the Gulf only along some segments of the
Louisiana shore, [Footnote 16] but, in that year, the Commandant of the Coast Guard drew new lines applicable to all the waters off the Louisiana coast. [Footnote 17] In 1954 the Louisiana Legislature declared that it "accepted and approved" this demarcation, which it now calls the "Inland Water Line," as its boundary. [Footnote 18] Louisiana now argues that this line encloses inland waters, and is therefore "the line marking the seaward limit of inland waters," and thus its "coastline" within the meaning of the Submerged Lands Act. [Footnote 19]
Louisiana argues initially that the 1895 Act is in pari materia with the Submerged Lands Act. Congress, it is said, must have contemplated that a technical term such as "inland waters" should have the same meaning in different statutes. The phrase appears, however, in quite different contexts in the two pieces of legislation. While the Submerged Lands Act established boundaries between the lands of the States and the Nation, Congress' only concern in the 1895 Act was with the problem of navigation in waters close to this Nation's shores. There is no evidence in the legislative history that it was the purpose of Congress in 1953 to tie the meaning of the phrase "inland waters" to the 1895 statute. For
instance, during the Senate Committee hearings on the Submerged Lands Act, the following exchange took place between Senator Anderson and the Assistant Attorney General of Louisiana:
"Senator ANDERSON. Was there not a so-called Government line drawn along the coast of Louisiana?"
"Mr. MADDEN. Only a partial line, Senator. I remember the old statute that authorized, I believe it was first the Secretary of Commerce, or the Treasury, to fix a line to show the demarcation between inland waters and the high seas. I think the Coast Guard has attempted to draw a partial line over on the east side of Louisiana."
"Senator ANDERSON. We went through all that, in the hearing a couple of years ago, and found that was of no value to us whatsoever. [Footnote 20]"
Louisiana's position that the Submerged Lands Act must necessarily be read as referring to the 1895 Act is thus not tenable. [Footnote 21] After a lengthy review of the legislative
history of the Submerged Lands Act in United States v. California, we reached the conclusion that Congress deliberately "chose to leave the definition of inland waters where it found it -- in the Court's hands." 381 U.S. at 381 U. S. 157. We adhere to that view, and turn to Louisiana's other arguments in support of the "Inland Water Line."
We further decided in United States v. California that the provisions of the Convention on the Territorial Sea and the Contiguous Zone were "the best and most workable definitions available," 381 U.S. at 381 U. S. 165, and we adopted them for purposes of the Submerged Lands Act. Yet Louisiana asserts that the Court is not precluded by the California decision from adopting the "Inland Water Line" in this case. Essentially, the argument is that the Convention was not intended either to be the exclusive determinant of inland or territorial waters or to divest a nation of waters which it had long considered subject to its sole jurisdiction. By the longstanding, continuous, and unopposed exercise of jurisdiction to regulate navigation on waters within the "Inland Water Line," the United States is said to have established them as its inland waters under traditional principles of international law. Alternatively, Louisiana suggests that, even assuming the exclusivity of the Convention on the Territorial Sea and the Contiguous Zone, the "Inland Water Line," by virtue of this assertion of sovereignty, has created "historic bays" within the exception of
Article 7 of the Convention. [Footnote 22] We have concluded, however, that nothing in either the enactment of the 1895 Act or its administration indicates that the United States has ever treated that line as a territorial boundary. Under generally accepted principles of international law, the navigable sea is divided into three zones, distinguished by the nature of the control which the contiguous nation can exercise over them. [Footnote 23] Nearest to the nation's shores are its inland, or internal waters. These are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory, and the coastal nation has the privilege even to exclude foreign vessels altogether. Beyond the inland waters, and measured from their seaward edge, is a belt known as the marginal, or territorial, sea. [Footnote 24] Within it, the coastal nation may exercise extensive control, but cannot deny the right of innocent passage to foreign nations. [Footnote 25]
Outside the territorial sea are the high seas, which are international waters not subject to the dominion of any single nation. [Footnote 26]
Whether particular waters are inland has depended on historical as well as geographical factors. Certain shoreline configurations have been deemed to confine bodies of water, such as bays, which are necessarily inland. But it has also been recognized that other areas of water closely connected to the shore, although they do not meet any precise geographical test, may have achieved the status of inland waters by the manner in which they have been treated by the coastal nation. As we said in United States v. California, it is generally agreed that historic title can be claimed only when the "coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations." 381 U.S. at 381 U. S. 172. [Footnote 27]
While there is not complete accord on the definition of historic inland waters, [Footnote 28] it is universally agreed that the reasonable regulation of navigation is not alone a sufficient exercise of dominion to constitute a claim to historic inland waters. On the contrary, control of navigation has long been recognized as an incident of the coastal nation's jurisdiction over the territorial sea. Article 17 of the Convention on the Territorial Sea and the Contiguous Zone embodies this principle in its declaration that
"[f]oreign ships exercising the right of innocent passage [in the territorial sea] shall comply with the laws and regulations enacted by the coastal State . . . and, in particular, with such laws and regulations relating to transport and navigation. [Footnote 29]
Because it is an accepted regulation of the territorial sea itself, enforcement of navigation rules by the coastal nation could not constitute a claim to inland waters
from whose seaward border the territorial sea is measured. [Footnote 30]"
But even if a nation could base a claim to historic inland waters on its continuous regulation of navigation, [Footnote 31]
it is clear that no historic title can accrue when the coastal nation disclaims any territorial reach by such an exercise of jurisdiction. For at least the last 5 years, during which time Congress has twice reenacted both the International and Inland Rules, [Footnote 32] the responsible officials have consistently disclaimed any but navigational significance to the "Inland Water Line." When the line was for the first time completed off the entire Louisiana shore, the Commandant of the Coast Guard declared:
"The establishment of descriptive lines of demarcation is solely for purposes connected with navigation and shipping. . . . These lines are not for the purpose of defining Federal or State boundaries, nor do they define or describe Federal or State jurisdiction over navigable waters. [Footnote 33]"
As early as 1943, the Coast Guard had differentiated the "Inland Water Line" from other boundaries with territorial significance. Its manual on Admiralty Law Enforcement, published that year, discussed the principles of international law relating to the definitions and jurisdictional attributes of inland waters, the territorial sea, and the high seas. The manual then contrasted the line drawn under the 1895 Act.
"NAVIGATION RULE: Now let us consider another line of demarcation. As shown in Chapter V, there are different rules for navigation on the 'inland waters' and the 'high seas': the Inland Rules and the International Rules. But here we
do not apply the previous definition, but adopt a new one for convenience. The Secretary of Commerce has fixed a series of lines along our coast, lines not following the natural curvature of our shores, and not following any three-mile natural perimeter, and the Inland Rules apply inside this line, while the International Rules apply outside the line. . . ."
"Quite obviously, this artificial line does not truly separate the high seas from the inland waters of the United States. It simply marks the area within which the Inland Rules apply, and outside of which the International Rules control. [Footnote 34]"
In United States v. California, we held that the United States' disclaimer to the Court of any historic title was decisive in the light of the "questionable evidence of continuous
and exclusive assertions of dominion over the disputed waters." 381 U.S. at 381 U. S. 175. In this case, not only are there longstanding, extrajudicial disclaimers of historic title, but also the United States has never treated the "Inland Water Line" as delimiting an area within which it can exercise jurisdiction over anything but navigation. [Footnote 35]
There is no indication that, in enacting the navigation rules and authorizing the designation of an "Inland Water Line" Congress believed it was also determining the Nation's territorial boundaries. [Footnote 36] Indeed, it seems unlikely that Congress, if it had intended that result, would have delegated such authority to the Secretary of the Treasury, to be exercised in his discretion "from time to time" and by reference to navigational aids, rather than in accordance with prevailing principles of international law. Consistently with their limited statutory purpose, the lines have always been drawn, and
frequently altered, solely with regard to contemporary navigational need. [Footnote 37] And in the only instance called to our attention in which the "Inland Water Line" was
mentioned by the United States in its international relations, the State Department in 1929 cautioned that the "lines do not represent territorial boundaries, but are for navigational purposes." [Footnote 38] We must therefore reject Louisiana's contention that the United States has historically treated the "Inland Water Line" as the territorial boundary of its inland waters. [Footnote 39]
Finally, Louisiana argues that only adoption of the current "Inland Water Line" will fulfill the "requirements of definiteness and stability which should attend any congressional grant of property rights belonging to the United States." United States v. California, 381 U. S. 139, 381 U. S. 167. Any line drawn by application of the rules of the Convention on the Territorial Sea and the Contiguous Zone would be ambulatory and would vary with the frequent changes in the shoreline. This will lead, it is said, to continuing uncertainty and endless litigation concerning the location of the Louisiana coastline
under the Submerged Lands Act, because the shoreline is constantly shifting as the Mississippi River and violent Gulf storms remold the soft, silt-like delta soil. This problem was not encountered on the rock-hard, comparatively straight California coast, and Louisiana contends that there is nothing in the Submerged Lands Act which requires that inland waters be given the same definition for every part of the United States coast. [Footnote 40] Just as the Court was free in United States v. California to adopt the definition which best solved the problems of that case, the argument concludes, we are free in this case to adopt a different definition more suited to the peculiarities of the highly unstable Louisiana shore.
We do not, however, so broadly construe our function under the Submerged Lands Act. Our adoption in
United States v. California of the definitions contained in the Convention on the Territorial Sea and the Contiguous Zone was "for purposes of the Submerged Lands Act," and not simply for the purpose of delineating the California coastline. Congress left to this Court the task of defining a term used in the Act, not of drawing state boundaries by whatever method might seem appropriate in a particular case. It would be an extraordinary principle of construction that would authorize or permit a court to give the same statute wholly different meanings in different cases, and it would require a stronger showing of congressional intent than has been made in this case to justify the assumption of such unconfined power. Finally, we note that, if the inconvenience of an ambulatory coastline proves to be substantial, there is nothing in this decision which would obstruct resolution of the problems through appropriate legislation or agreement between the parties. Such legislation or agreement might, for example, freeze the coastline as of an agreed-upon date.
Even if we were free to adopt varying definitions of inland waters for different portions of the United States coast, we are not convinced that the policy in favor of a certain and stable coastline, strong as it is, would necessarily outweigh countervailing policy considerations under the Submerged Lands Act. We recognized in California the desirability of "a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations." 381 U.S. at 381 U. S. 165. The adoption of the "Inland Water Line" for Louisiana would be completely at odds with this desideratum. Moreover, adoption of a new definition of inland waters in this case would create uncertainty and encourage controversy over the coastlines of other States, unsure as to which, if either, of the two definitions
would be applied to them. This uncertainty might be compounded by the absence of any "Inland Water Line" around much of the United States. And we cannot assume that, in enacting the Submerged Lands Act, Congress envisioned that the ownership of potentially vast resources might thereafter be determined "from time to time" by the Coast Guard, acting solely in the interest of navigational convenience.
For these reasons, we conclude that that part of Louisiana's coastline which, under the Submerged Lands Act, consists of "the line marking the seaward limit of inland waters," is to be drawn in accordance with the definitions of the Convention on the Territorial Sea and the Contiguous Zone.
II
APPLICATION OF THE CONVENTION ON THE TERRITORIAL
SEA AND THE CONTIGUOUS ZONE.
Many issues divide the parties concerning the application of the provisions of the Convention on the Territorial Sea and the Contiguous Zone to the Louisiana coast. Some of these issues, which involve simply interpretation of the Convention, we have been able to decide on the basis of the materials now before us. Others, however, are primarily factual questions involving the construction and application of the Convention's provisions with respect to particularized geographical configurations. Several of these factual disputes cannot be properly resolved without evidentiary hearings, and as to others we think it would be wise at all events in this technical and unfamiliar area to have the benefit, preliminarily, of the judgment of a detached referee. Accordingly, we have decided to refer to a Special Master the task of resolving in the first instance several of the particularized disputes over the precise
boundary between the submerged Gulf lands belonging to the United States and those belonging to Louisiana.
1. Dredged channels. A recurring question in the application of the Convention to the Louisiana coast is whether dredged channels in the Gulf leading to inland harbors comprise inland waters. [Footnote 41] In support of its contention that dredged channels, as such, are inland waters, Louisiana relies principally on Article 8 of the Convention:
"For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast."
Incontestably, Louisiana argues, the channels "form an integral part of the harbour system"; that they are "harbour works" as well should also be obvious in light of the enormous cost and effort which the United States has expended in dredging and maintaining them.
The United States argues more convincingly, however, that Article 8 applies only to raised structures. The discussions of the Article by the 1958 Geneva Conference and the International Law Commission reveal that the term "harbour works" connoted "structures" and "installations" which were "part of the land" and which, in
some sense enclosed and sheltered the waters within. [Footnote 42] It is not enough that the dredged channels may be an "integral part of the harbour system"; even raised structures which fit that description, such as lighthouses, are not considered "harbour works" unless they are "connected with the coast." [Footnote 43] Thus, Article 8 provides that
"harbour works . . . shall be regarded as forming part of the coast" (emphasis supplied), a description which hardly fits underwater channels. As part of the "coast," the breadth of the territorial sea is measured from the harbor works' low water lines, attributes not possessed by dredged channels. [Footnote 44] We must therefore conclude that Article 8 does not establish dredged channels as inland waters.
Louisiana also contends that the legislative history of the Submerged Lands Act reveals a clear congressional purpose to include such channels as inland waters. Early versions of the bill contained a definition of the term "inland waters," for the purposes of the Act, and that
definition included "channels." [Footnote 45] The definition was later deleted, but Louisiana contends that the sole purpose of the deletion was to avoid a construction of the definition which would exclude other areas from inland waters. [Footnote 46] In United States v. California, 381 U. S. 139, 381 U. S. 150-160, we reviewed at length the pertinent legislative history and concluded that the only sure inference which could be drawn from the deletion of the definition was that Congress thought the highly technical question should be left to the courts. We remain
of that view. Moreover, it is far from clear that the word "channels" in the deleted definition encompassed dredged channels in the open sea. From the context in which the word appears, it is far more likely that the definition referred only to bodies of water bordered by land. [Footnote 47]
2. The territorial sea of low tide elevations. Article 11 of the Convention on the Territorial Sea and the Contiguous Zone deals with the subject of low tide elevations:
"1. A low tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea."
"2. Where a low tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own."
The question presented by the application of this provision to the Louisiana coast is whether the territorial sea -- or, for purposes of this case, the three-mile grant to Louisiana under the Submerged Lands Act -- is to be measured from low tide elevations which lie within three miles of the baseline across the mouth of a bay but more than three miles from any point on the mainland or an island. [Footnote 48]
The United States argues that the phrase "at a distance not exceeding the breadth of the territorial sea from the mainland" does not refer to the territorial sea as a situs. Rather, it uses the width of the territorial sea only as a measurement of distance -- a circumlocution made necessary by the failure of the 1958 Geneva Conference
to agree upon a uniform width. [Footnote 49] And that distance -- three miles in this case -- is to be measured from the "mainland," a term which does not comprise baselines across bodies of water, but is limited to the low water mark on dry land. Louisiana, on the other hand, interprets the Article as covering all low tide elevations situated anywhere within the territorial sea. And the drawing of baselines across the mouths of bays is an integral step in the determination of the area of the territorial sea. Moreover, Louisiana argues, the term "mainland" does include inland waters. The theory of the Convention, it is argued, reflects a longstanding principle of international law -- that bays and other inland waters are practically assimilated to the dry land, and treated for all legal purposes as if they were a part of it. [Footnote 50]
The parties agree that Article 11, on its face, is not wholly dispositive of the issue, and that the language does not preclude either construction. [Footnote 51] Each party, therefore, relies on the origins of the Article and the statements of its drafters. When the provision was first proposed to the International Law Commission in 1952, it read as follows:
"Elevations of the sea bed situated within the territorial sea, though only above water at low tide,
are taken into consideration for the determination of the base line of the territorial sea. [Footnote 52]"
(Emphasis supplied.) After several amendments to the rapporteur's draft, [Footnote 53] the Commission in 1954 adopted a version with substantially the same meaning:
"Drying rocks and shoals which are wholly or partly within the territorial sea may be taken as points of departure for delimiting the territorial sea. [Footnote 54]"
(Emphasis supplied.) As the discussion made clear, both drafts of the Article covered all low tide elevations within the territorial sea, however measured. Moreover, the provision was thought to embody longstanding principles of international law. [Footnote 55]
The draft encountered a serious objection, however, which led to its further amendment by the International Law Commission. If every low tide elevation "within
the territorial sea" was to have a territorial sea of its own, then
"a country like Holland might extend its territorial sea very considerably by advancing from one shoal to another, claiming that a shoal situated within the territorial sea of another shoal had itself a territorial sea. [Footnote 56]"
To avoid this undue extension of the territorial sea, the final draft of the Commission was revised to read as follows:
"Drying rock and drying shoals which are wholly or partly within the territorial sea, as measured from the mainland or an island, may be taken as points of departure for measuring the extension of the territorial sea. [Footnote 57]"
(Emphasis supplied.) It is clear that, under the International Law Commission version of Article 11, the "territorial sea, as measured from the mainland" included those portions which extended from baselines enclosing bays. [Footnote 58] The sole purpose
of the amendment to the initial proposals was to indicate that
"drying rocks and drying shoals could only be used once as points of departure for extending the territorial sea and that the process could not be repeated by leapfrogging, as it were, from one rock or shoal to another. [Footnote 59]"
The United States contends that, by changing the language of the International Law Commission draft to its present form in the Convention, the Geneva Conference intended also to change its meaning. Precisely the opposite conclusion, however, flows from an inspection of the history of the Convention. The amendment was advanced by the United States; yet its explanation for the proposal contained not the slightest indication that any change in the basic meaning of the Article was intended. [Footnote 60] Surely there would have been some discussion of the reference to the territorial sea as a measure of distance, rather than as a situs had it been the purpose of the United States or the Conference to alter so significantly the meaning of prior drafts and the existing international consensus. [Footnote 61] Instead, the expert to the
Secretariat of the Conference explained "that all the proposals on article 11 corresponded entirely to the intentions of the International Law Commission." [Footnote 62] We therefore conclude that low tide elevations situated in the territorial sea as measured from bay-closing lines are part of the coastline from which the three-mile grant of the Submerged Lands Act extends. [Footnote 63]
3. The semicircle test. Article 7(2) defines a bay as follows:
"For the purposes of these articles, a bay is a well marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation."
(a) In several areas along the Louisiana coast, the parties raise the problem of whether and to what extent indentations within or tributary to another indentation can be included in the area of the latter for purposes of the semicircle test. Louisiana argues that a closing line should be drawn across what it calls "Outer Vermilion Bay" from Tigre Point to Shell Keys. That body of water does not meet the semicircle test unless the area of Vermilion Bay, joined to "Outer Vermilion Bay" only by a channel between the mainland and Marsh Island, is included. Similarly, Louisiana contends that "Ascension Bay," whose headlands are said to be the jetties at Belle Pass on the west and Southwest Pass on the east, is a bay under Article 7(2). [Footnote 64] Again, however,
its area will satisfy the semicircle test only if deemed to include the waters of the Barataria Bay-Caminada
Bay complex, which are separated from the outer indentation by a string of islands. [Footnote 65]
Louisiana argues that the area of tributary bays or other indentations must be included within that of the primary indentation. Article 7(3) provides that,
"[f]or the purpose of measurement, the area of an indentation is that lying between the low water mark around the shore of the indentation and a line joining the low water marks of its natural entrance points."
(Emphasis supplied.) The italicized phrase, it is said, constitutes a direction to follow the low water line wherever it goes, including into other indentations, in drawing the perimeter of the primary bay. The general rule is well recognized, Louisiana argues, by the United States
Department of State among others, that the area of bays within bays is included in calculating the semicircle test. [Footnote 66]
The United States does not reject the notion that some indentations which would qualify independently as bays may nonetheless be considered as part of larger indentations for purposes of the semicircle test; but it denies the existence of any rule that all tributary waters are so includible. Article 7(2), it emphasizes, refers to "that indentation." The inner bays can be included, therefore, only if they can reasonably be considered part of the single, outer, indentation. And that cannot be said of inland waters which, like Vermilion Bay and Barataria Bay-Caminada Bay, are wholly separated from the outer body of water, and linked only by narrow passages or channels. [Footnote 67]
For purposes of this lawsuit, we find it unnecessary to provide a complete answer to the questions posed by the parties. "Outer Vermilion Bay," if it is to qualify under the semicircle test, must include the waters of Vermilion Bay. Yet Vermilion Bay is itself a part of the much larger indentation which includes West and East Cote Blanche Bays and Atchafalaya Bay, and which opens to the sea between Marsh Island and Point au Fer. Recognition of the unitary nature of this larger indentation follows from Louisiana's insistence that the low water mark must be followed around the entire indentation. If, as Louisiana posits, the western headland of the indentation is at Tigre Point, then a closing line across its mouth to Point au Fer far exceeds the 24-mile limit imposed by Article 7(4). [Footnote 68] It follows that "Outer Vermilion Bay" is neither itself a bay nor part of a larger bay under the Convention on the Territorial Sea and the Contiguous Zone.
We have concluded, on the other hand, that the area of "Ascension Bay" does include the Barataria Bay-Caminada Bay complex, and therefore meets the semicircle test. Those inner bays are separated from the larger "Ascension Bay" only by the string of islands across their entrances. [Footnote 69] If those islands are ignored, the entrance to Barataria and Caminada Bays is sufficiently
wide that those bays and "Ascension Bay" can reasonably be deemed a single large indentation even under the United States' approach. [Footnote 70] Article 7(3) provides that, for the purposes of calculating the semicircle test, "[i]slands within an indentation shall be included as if they were part of the water areas of the indentation." The clear purpose of the Convention is not to permit islands to defeat the semicircle test by consuming areas of the indentation. We think it consistent with that purpose that islands should not be permitted to defeat the semicircle test by sealing off one part of the indentation from the rest. Treating the string of islands "as if they were part of the water areas" of the single large indentation within which they lie, "Ascension Bay" does meet the semicircle test. [Footnote 71]
(b) Another issue involving the semicircle test arises in East Bay in the Mississippi River Delta. [Footnote 72] Since East Bay does not meet the semicircle test on a closing line between its seaward-most headlands -- the tip of the jetty at Southwest Pass and the southern end of South Pass -- it does not qualify as a bay under Article 7 of the Convention on the Territorial Sea and the Contiguous Zone. There is a line which can be drawn within East
Bay, however, so as to satisfy the semicircle test. Louisiana argues that, just, as under Article 7(5), a 24-mile line can be drawn within a bay whose mouth is more than 24 miles wide, [Footnote 73] so also can a line which satisfies the semicircle test be drawn within a bay whose mouth is too wide to meet that test.
The analogy is unsound. A bay whose mouth is wider than 24 miles is nevertheless a bay. But an indentation that does not meet the semicircle test is not a bay, but open sea. If an indentation which satisfies the semicircle test is a true bay, therefore, it cannot be on the theory that the closing line carves out a portion of a larger bay. The enclosed indentation must, by its own features, qualify as a bay.
The United States argues that the area within East Bay enclosed by Louisiana's proposed line does not constitute a bay, because there is no "well-marked indentation" with identifiable headlands which encloses "landlocked" waters. Indeed, it is said, there is not the slightest curvature of the coast at either asserted entrance point. We do not now decide whether the designated portion of East Bay meets these criteria, but hold only that they must be met. We cannot accept Louisiana's argument that an indentation which satisfies the semicircle test ipso facto qualifies as a bay under the Convention. Such a construction would fly in the face of Article 7(2), which plainly treats the semicircle test as a minimum requirement. And we have found nothing in the history of the Convention which would support so awkward a construction.
4. Islands at the mouth of a bay. Article 7(3) of the Convention on the Territorial Sea and the Contiguous Zone provides:
"For the purpose of measurement, the area of an indentation is that lying between the low water
mark around the shore of the indentation and a line joining the low water marks of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semicircle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water areas of the indentation."
While the only stated relevance of such islands is to the semicircle test, it is clear that the lines across the various mouths are to be the baselines for all purposes. [Footnote 74] The application of this provision to the string of islands across the openings to the Lake Pelto-Terrebonne Bay-Timbalier Bay complex has raised the following questions: (a) between what points on the islands are the closing lines to be drawn, and (b) should the lines be drawn landward of a direct line between the entrance points on the mainland?
(a) It is Louisiana's primary contention that, when islands appear in the mouth of a bay, the lines closing the bay and separating inland from territorial waters should be drawn between the mainland headlands and the seaward-most points on the islands. This position, however, is refuted by the language of Article 7(3), which provides for the drawing of baselines "across the different mouths" (emphasis supplied), not across the
most seaward tips of the islands. There is no suggestion in the Convention that a mouth caused by islands is to be located in a manner any different from a mouth between points on the mainland -- that is, by "a line joining the low water marks of [the bay's] natural entrance points." The "natural entrance points" may -- and in some instances in the Lake Pelto-Terrebonne Bay-Timbalier Bay complex do -- coincide with the outermost edges of the islands. But there is no automatic correlation, and the headlands must be selected according to the same principles that govern the location of entrance points on the mainland.
(b) Louisiana argues in the alternative that, even if the closing lines should not necessarily connect the most seaward points on the islands, in no event should they be drawn landward of a direct line between the entrance points on the mainland. [Footnote 75] The purpose of Article 7(3) is expressed in the following passage from the Commentary of the International Law Commission:
"Here, the Commission's intention was to indicate that the presence of islands at the mouth of an indentation tends to link it more closely to the mainland, and this consideration may justify some alteration in the ratio between the width and the penetration of the indentation. [Footnote 76] "
It is evident, Louisiana argues, that Article 7(3) was designed to enlarge, rather than contract the area of inland waters, and that this policy would not be served by permitting islands intersected by a direct closing line between the mainland headlands to pull that line inward, particularly when the indentation would qualify as a bay even in the absence of the islands. [Footnote 77] Rather, the line should be selected which will enclose the maximum area of inland waters. [Footnote 78]
Louisiana's argument is undermined, however, by the natural effect of islands at the mouth of an indentation described in the International Law Commission Commentary.
Just as the "presence of islands at the mouth of an indentation tends to link it more closely to the mainland," so also do the islands tend to separate the waters within from those without the entrances to the bay. Even waters which would be considered within the bay, and therefore "landlocked" in the absence of the islands, are physically excluded from the indentation if they lie seaward of the mouths between the islands. It would be anomalous indeed to say that waters are part of a bay even though they lie outside its natural entrance points. No doubt there could be islands which would not, whether because of their size, shape, or relationship to the mainland, be said to create more than one mouth to the bay. But where, as in the Lake Pelto-Terrebonne Bay-Timbalier Bay complex, a string of islands covers a large percentage of the distance between the mainland entrance points, the openings between the islands are distinct mouths outside of which the waters cannot sensibly be called "inland."
Louisiana purports to find support for its position in the provision of Article 7(3) that "[i]slands within an indentation shall be included as if they were part of the water areas of the indentation." This provision would preclude drawing lines to an island wholly within the indentation, [Footnote 79] Louisiana argues, and it should therefore
also preclude drawing closing lines to any part of an island landward of a straight line between the mainland headlands. We cannot, however, accept this construction of the Convention. An island which is intersected by a direct mainland-to-mainland closing line is not "within [the] indentation." Nor can an island which forms the mouth of an indentation be "within" it.
Article 7(3) clearly distinguishes between islands which, by creating multiple mouths, form a part of the perimeter of the bay, and those which, by their presence wholly "within" the bay, are treated as part of its water areas.
In sum, we hold that, where islands intersected by a direct closing line between the mainland headlands create multiple mouths to a bay, the bay should be closed by lines between the natural entrance points on the islands, even if those points are landward of the direct line between the mainland entrance points.
5. Islands as headlands of bays. With respect to many of the bays on the Louisiana coast, the question is presented whether a headland of an indentation can be located on an island. [Footnote 80] The United States argues
that the Convention on the Territorial Sea and the Contiguous Zone flatly prohibits the drawing of bay-closing lines to islands. A true bay, it is said, is an "indentation" within the mainland, and it cannot be created by the "projection" of an island or islands from the coast. Moreover, the rule of Article 7(3) that the area of an indentation lies between the closing line and "the low water mark around the shore of the indentation" contemplates a perimeter of dry land unbroken by any opening other than the bay's entrance. Finally, the United States argues, such an opening between the island and the mainland would deprive the enclosed waters of the "landlocked" quality required in a true bay.
We do not agree that the face of the Convention clearly concludes the question. No language in Article 7 or elsewhere positively excludes all islands from the meaning of the "natural entrance points" to a bay. Waters within an indentation which are "landlocked" despite the bay's wide entrance surely would not lose that characteristic on account of an additional narrow opening to the sea. That the area of a bay is delimited by the "low water mark around the shore" does not necessarily mean that the low water mark must be continuous. [Footnote 81]
Moreover, there is nothing in the history of the Convention or of the international law of bays which establishes
that a piece of land which is technically an island can never be the headland of a bay. Of course, the general understanding has been -- and, under the Convention, certainly remains -- that bays are indentations in the mainland, [Footnote 82] and that islands off the shore are not headlands, but, at the most, create multiple mouths to the bay. [Footnote 83] In most instances and on most coasts, it is no doubt true that islands would play only that restricted
role in the delimitation of bays. But much of the Louisiana coast does not fit the usual mold. It is marshy, insubstantial, riddled with canals and other waterways, and, in places, consists of numerous small clumps of land which are entirely surrounded by water and therefore technically islands. With respect to some spots along the Louisiana coast, even the United States has receded from its rigid position and recognized that these insular configurations are really "part of the mainland." The western shore of the Lake Pelto-Terrebonne Bay-Timbalier Bay indentation is such a formation, and is treated by the United States as part of the coast.
This Court, too, has, in the past, adopted this realistic approach to similar land formations. In Louisiana v. Mississippi, 202 U. S. 1, 202 U. S. 446, we wrote:
"Mississippi denies that the peninsula of St. Bernard and the Louisiana Marshes constitute a peninsula in the true sense of the word, but insists that they constitute an archipelago of islands. Certainly there are, in the body of the Louisiana Marshes or St. Bernard, peninsula portions of sea marsh which might technically be called islands, because they are land entirely surrounded by water, but they are not true islands. They are rather, as the Commissioner of the General Land Office wrote the Mississippi land commissioner in 1904, 'in fact, hummocks of land surrounded by the marsh and swamp in said townships. . . .'"
"And when the Louisiana act used the words: 'thence bounded by the said Gulf to the place of beginning, including all islands within three leagues of the coast,' the coast referred to is the whole coast of the State, and the peninsula of St. Bernard formed an integral part of it. "
Naturally, this common sense approach extends to coastal formations where there are only a few islands, or even a single island, as well as to those where there are many. Such has been the view of other courts [Footnote 84]
and of textwriters. [Footnote 85] Much of the Louisiana coast on or near the Mississippi River Delta is of the same general consistency as the western shore of the Lake Pelto-Terrebonne
Bay-Timbalier Bay complex, and some of the islands may be so closely linked to the mainland as realistically to be assimilated to it. While there is little objective guidance on this question to be found in international law, the question whether a particular island is to be treated as part of the mainland would depend on such factors as its size, its distance from the mainland, the depth and utility of the intervening waters, the shape of the island, and its relationship to the configuration or curvature of the coast. [Footnote 86] We leave to the Special Master the task of determining in the first instance -- in the light of these and any other relevant criteria and any evidence he finds it helpful to consider -- whether the islands which Louisiana has designated as headlands of bays are so integrally related to the mainland that they are realistically parts of the "coast" within the meaning of the Convention on the Territorial Sea and the Contiguous Zone.
6. Fringes of islands. At several places, [Footnote 87] the question is raised whether areas between the mainland and fringes
or chains of islands along the coast are inland waters. The parties agree that no article of the Convention specifically provides that such areas are inland waters. Louisiana argues that they are inland waters, under any one of several theories: that such island fringes form the perimeter of bays under Article 7, that straight baselines must be drawn along the islands under Article 4, or that the waters should be deemed "inland" under general principles of international law which antedate and supplement the Convention on the Territorial Sea and the Contiguous Zone. The position of the United States is that such island chains can be taken into account as enclosing inland waters only by drawing straight baselines; yet the decision whether to draw such baselines is within the sole discretion of the Federal Government, and the United States has not chosen to do so.
We have concluded that Article 7 does not encompass bays formed in part by islands which cannot realistically be considered part of the mainland. [Footnote 88] Article 7 defines bays as indentations in the "coast," a term which is used in contrast with "islands" throughout the Convention. Moreover, it is apparent from the face and the history of the Convention that such insular formations were intended to be governed solely by the provision in
Article 4 for straight baselines. [Footnote 89] The language of Article 4 itself is the clearest indication of that intent:
"1. In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured."
(Emphasis supplied.)
The drafters of the Convention and their predecessors were aware that international law permitted such island fringes in some circumstances to enclose inland waters. [Footnote 90]
The principle was recognized and applied by the International Court of Justice in the Fisheries Case (United Kingdom v. Norway), [1951] I.C.J. 116, in which Norway was held legitimately to have drawn straight baselines along the "skjaergaard," literally a "rock rampart" composed of hundreds of thousands of insular formations which ringed the mainland. Thereafter, with the Fisheries Case as the model, attempts were made to draft concrete rules for the uniform treatment of such island fringes, and both the International Law Commission and the 1958 Geneva Conference discussed the problem at length. [Footnote 91] There was, however, too little technical information or consensus among nations on that and related subjects to allow the formulation of uniform rules. [Footnote 92] It was agreed, therefore, that the problem should be handled as it had been by the International
Court of Justice in the Fisheries Case: each nation was left free to draw straight baselines along suitable insular configurations if it so desired. [Footnote 93] In the light of this resolution
of the problem, it is clear that the drafters did not intend to leave island fringes beyond the scope of the Convention altogether. The deliberate decision was that such island formations are not to be treated differently from any other islands [Footnote 94] unless the coastal nation decides to draw straight baselines. [Footnote 95]
In United States v. California, 381 U. S. 139, 381 U. S. 168, we held that
"the choice under the Convention to use the straight baseline method for determining inland waters claimed against other nations is one that rests with the Federal Government, and not with the individual States. [Footnote 96]"
Since the United States asserts that it has not drawn and does not want to draw straight baselines along the Louisiana coast, that disclaimer would, under the California decision, be conclusive of the matter. Louisiana argues, however, that, because the Louisiana coast is so perfectly suited to the straight baseline method, and because it is clear that the United States would employ it in the conduct of its international affairs were it not for this lawsuit, the Court should reconsider its holding in California and itself draw appropriate baselines. While we agree that the straight baseline method was designed for precisely such coasts as the Mississippi River Delta area, we adhere to the position that the selection of this optional method of establishing boundaries
should be left to the branches of Government responsible for the formulation and implementation of foreign policy. It would be inappropriate for this Court to review or overturn the considered decision of the United States, albeit partially motivated by a domestic concern, not to extend its borders to the furthest extent consonant with international law. [Footnote 97]
7. Historic inland waters. Louisiana argues that all the waters of the Mississippi River Delta, and East Bay in particular, are "so-called historic' bays" within the meaning of Article 7(6), [Footnote 98] and that they are therefore inland waters notwithstanding their failure to meet the geographical requirements of Article 7 and the United States' refusal to draw straight baselines. [Footnote 99] Historic
bays are not defined in the Convention, and the term therefore derives its content from general principles of international law. [Footnote 100] As the absence of a definition indicates, there is no universal accord on the exact meaning of historic waters. [Footnote 101] There is substantial agreement, however, on the outlines of the doctrine and on the type of showing which a coastal nation must make in order to establish a claim to historic inland waters. [Footnote 102] But because the concept of historic waters is still relatively imprecise and its application to particular areas raises primarily factual questions, we leave to the Special Master -- as we did in United States v. California -- the task of determining in the first instance whether any of the waters off the Louisiana coast are historic bays. We do not think the ultimate resolution of this litigation would be hastened by any further discussion of the subject at this time, beyond the remarks below.
In its effort to establish that the waters of the Delta have been subjected to the continuous authority of the coastal nation, Louisiana has relied heavily on its own activities, as well as on those of the Federal Government. The United States contends that those state activities cannot, in this lawsuit, support the position that the Delta waters are historic bays. The argument is not
that such exercises of authority by Louisiana would not be relevant to a claim of historic title vis-a-vis another nation. On the contrary, the United States has "[n]o doubt [that] the national government may, if it chooses, rely on State action to support its own historic claim as against other nations." [Footnote 103] But, the United States asserts, "a State cannot oblige it to do so or to accept State action as binding in a domestic case such as the present one." In brief, then, the United States' position is that it can prevent judicial recognition of a ripened claim to historic title merely by lodging a disclaimer with the court.
In United States v. California, we noted, but found it unnecessary to pass on, the United States' contention that historic title cannot be founded upon exercises of state authority, because a claim to historic inland waters can be maintained only if endorsed by the United States. We there sustained the Master's determination that, even assuming the relevance of California's assertions of sovereignty over the coastal waters, they did not establish historic title. The United States' disclaimer was credited only because the case presented such "questionable evidence of continuous and exclusive assertions of
dominion." 381 U.S. at 381 U. S. 175. And we noted that we were
"reluctant to hold that such a disclaimer would be decisive in all circumstances, for a case might arise in which the historic evidence was clear beyond doubt."
Ibid. Thus, the Court indicated its unwillingness to give the United States the same complete discretion to block a claim of historic inland waters as it possesses to decline to draw straight baselines.
While we do not now decide that Louisiana's evidence of historic waters is "clear beyond doubt," neither are we in a position to say that it is so "questionable" that the United States' disclaimer is conclusive. We do decide, however, that the Special Master should consider state exercises of dominion as relevant to the existence of historic title. The Convention was, of course, designed with an eye to affairs between nations, rather than domestic disputes. But, as we suggested in United States v. California, it would be inequitable in adapting the principles of international law to the resolution of a domestic controversy, to permit the National Government to distort those principles, in the name of its power over foreign relations and external affairs, by denying any effect to past events. [Footnote 104] The only fair way to apply the Convention's recognition of historic bays to this case, then, is to treat the claim of historic waters as if it were being made by the national sovereign and opposed by another nation. To the extent the United
States could rely on state activities in advancing such a claim, they are relevant to the determination of the issue in this case.
III
.In due course, a Special Master will be appointed by the Court to make a preliminary determination, consistent with this opinion, of the precise boundaries of the submerged lands owned by Louisiana in the Gulf of Mexico.
It is so ordered.
[Map of Louisiana coast follows this page [omitted].]
THE CHIEF JUSTICE and MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
67 Stat. 29, 43 U.S.C. §§ 1301-1315.
The Submerged Lands Act was enacted in response to the Court's decisions in United States v. California, 332 U. S. 19, United States v. Texas, 339 U. S. 707, and United States v. Louisiana, 339 U. S. 699, that the States did not own the submerged lands off their coasts and that the United States had paramount rights in such lands. After enactment of the Submerged Lands Act, the United States commenced this action against Louisiana, invoking our original jurisdiction under Art. III, § 2 of the Constitution, and seeking a declaration that it was entitled to exclusive possession of and power over the lands underlying the Gulf of Mexico more than three geographical miles from the coast.
364 U. S. 502, 364 U. S. 503; 43 U.S.C. § 1301(c).
364 U.S. at 364 U. S. 504.
By order of the Court, the United States' original suit against Louisiana was broadened to include the other Gulf States a defendant. 354 U. S. 515. In connection with the supplemental decrees now proposed by the United States and Louisiana, Texas and Mississippi have filed motions seeking an order eliminating from consideration any issue with respect to the lateral boundaries between Louisiana and those States. While we have found it unnecessary to enter any such formal order, it is evident that the decree which will be entered at this stage of the case will decide only the rights of Louisiana and the United States, and will not affect any lateral boundaries between the States.
A supplemental decree was entered in 1965, with the consent of the parties, removing several large areas from dispute. The decree also directed an accounting and distribution of funds collected from those areas under the 1956 Interim Agreement between the parties governing the administration of disputed areas. 394 U. S. 382 U.S. 288.
[1964] 15 U.S.T. (pt. 2) 1607, T.I.A.S. No. 5639. The Convention was the culmination of long years of work by the International Law Commission. Established by the United Nations General Assembly in 1947 to codify international law, the Commission began deliberations on the regime of the territorial sea in 1952 on the basis of a report submitted by the special rapporteur. At its eighth session in 1956 the Commission adopted a final report which contained a proposed international convention and recommended the convocation of an international conference to examine further the law of the sea. The General Assembly adopted that recommendation, and, in 1958, convened the First U.N. Conference on the Law of the Sea in Geneva. With the International Law Commission report as its model, the conference promulgated the Convention on the Territorial Sea and the Contiguous Zone and three other conventions dealing with other problems of international maritime law. See 1 A. Shalowitz, Shore and Sea Boundaries 203-211 (1962).
13 Stat. 58, codified as R.S. § 4233.
Act of March 3, 1885, 23 Stat. 438.
23 Stat. 442.
Act of August 19, 1890, 26 Stat. 320.
26 Stat. 328.
The Inland Rules are now codified at 33 U.S.C. §§ 152-232, and the International Rules at 33 U.S.C. §§ 1051-1094.
Act of February 19, 1895, 28 Stat. 672.
The authority given to the Secretary of the Treasury in the 1895 Act was successively transferred: (1) to the Secretary of Commerce and Labor (Act of February 14, 1903, 32 Stat. 829), later redesignated "Secretary of Commerce" (Act of March 4, 1913, 37 Stat. 736); (2) to the Commandant of the Coast Guard (Reorganization Plan No. 3 of 1946, 60 Stat. 1097); (3) to the Secretary of the Treasury (or to the Secretary of the Navy when the Coast Guard is operating in that department (Reorganization Plan No. 26 of 1950, 64 Stat. 1280)), and delegated by the Secretary of the Treasury to the Commandant of the Coast Guard (Treasury Department Order of July 31, 1950, 15 Fed.Reg. 6521). Section 6(b)(1) of the Department of Transportation Act, 80 Stat. 938, transferred this authority to the Secretary of Transportation, effective April 1, 1967 (Exec.Order No. 11340, March 30, 1967, 32 Fed.Reg. 5453); it was again delegated to the Commandant of the Coast Guard, effective April 1, 1967 (49 CFR § 1.4(a)(2), 32 Fed.Reg. 5606).
12 Fed.Reg. 8458, 8460 (1947).
18 Fed.Reg. 7893 (1953)
Louisiana Act No. 33 of 1954. The "Inland Water Line" is delineated on the map of the Louisiana coast appended to this opinion, following p. 78 [omitted].
In United States v. California, 381 U. S. 139, neither party suggested to the Court that the "Inland Water Line" had any relevance to the Submerged Lands Act. Indeed, both specifically disclaimed any reliance on it.
Hearings on S.J.Res. No. 13 and other bills before the Senate Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 276 (1953). In hearings on proposed submerged lands legislation in earlier Congresses, representatives of Louisiana had argued to Congress that the Administration bills were "in error" because they overlooked the fact that, by the "Inland Water Line," "the inland waters of coastal States have already been defined and divided." Hearings on S. 155 and other bills before the Senate Committee on Interior and Insular Affairs, 81st Cong., 1st Sess., 194 (1949). See also id. at 179-180; Hearings on H.R. 5991 and H.R. 5992 before Subcommittee No. 1 of the House Committee on the Judiciary, 81st Cong., 1st Sess., 74-75 (1949).
Also without substance is Louisiana's claim that the United States cannot alter the boundary adopted by Louisiana in 1954. The question before us is the location of the boundary of land quitclaimed to Louisiana by the United States in 1953, and that question is, of course, not affected by any subsequent action of the Louisiana Legislature. As we stated in an earlier dispute between these parties,
"[w]e intimate no opinion on the power of a State to extend, define, or establish its external territorial limits or on the consequences of any such extension vis a vis persons other than the United States or those acting on behalf of or pursuant to its authority. The matter of state boundaries has no bearing on the present problem."
United States v. Louisiana, 339 U. S. 699, 339 U. S. 705.
Article 7 sets forth precise mathematical requirements which bays must satisfy to qualify as inland waters from whose seaward edge the territorial sea extends. See infra at 394 U. S. 48; n. 64, at 49; 52 n 68; 394 U. S. 54-55. Paragraph 6 of the Article provides, however, that "[t]he foregoing provisions shall not apply to so-called historic' bays. . . ."
On the threefold division of the sea, see generally L. Bouchez, The Regime of Bays In International Law 4-5 (1964); 1 Shalowitz, supra, n 7, at 22-24; M. Strohl, The International Law of Bays 4 (1963).
The breadth of the territorial sea varies from country to country, depending on the claims of the coastal state. These claims have long been so diverse that the Geneva Conference was unable to agree upon a uniform distance for purposes of the Convention on the Territorial Sea and the Contiguous Zone. A table illustrating the various territorial sea claims of most nations appears at 1 Shalowitz, supra, n 7, at 389 (App. J.).
Article 14 of the Convention on the Territorial Sea and the Contiguous Zone provides that "ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea."
Article 2 of the Convention on the High Seas provides: "The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty." [1962] 13 U.S.T. (pt. 2) 2313, T.I.A.S. No. 5200. It has, however, generally been thought that the coastal nation can exercise some limited jurisdiction over ships beyond its territorial waters. See, e.g., M. McDougal & W. Burke, The Public Order of the Oceans, c. 6 (1962); P. Jessup, The Law of Territorial Waters and Maritime Jurisdiction 75-112 (1927); 1 Shalowitz, supra, n 7, at 27. The Convention on the Territorial Sea and the Contiguous Zone has recognized that such extensions of jurisdiction are sometimes imperative and has provided that, in a contiguous zone not to exceed 12 miles from the coast, the littoral nation
"may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea; (b) punish infringement of the above regulations committed within its territory or territorial sea."
Article 24.
A recent United Nations study recommended by the International Law Commission reached the following conclusions:
"There seems to be fairly general agreement that, at least three factors have to be taken into consideration in determining whether a State has acquired a historic title to a maritime area. These factors are: (1) the exercise of authority over the area by the State claiming the historic right; (2) the continuity of this exercise of authority; (3) the attitude of foreign States. First, the State must exercise authority over the area in question in order to acquire a historic title to it. Secondly, such exercise of authority must have continued for a considerable time; indeed, it must have developed into a usage. More controversial is the third factor, the position which the foreign States may have taken towards this exercise of authority. Some writers assert that the acquiescence of other States is required for the emergence of an historic title; others think that absence of opposition by these States is sufficient."
Juridical Regime of Historic Waters, Including Historic Bays, [1962] 2 Y.B.Int'l L.Comm'n 1, 13, U.N.Doc. A/CN.4/143 (1962). See also Bouchez, supra, n 23, at 203, 281.
Historic title can be obtained over territorial, as well as inland, waters, depending on the kind of jurisdiction exercised over the area.
"If the claimant State exercised sovereignty as over internal waters, the area claimed would be internal waters, and if the sovereignty exercised was sovereignty as over the territorial sea, the area would be territorial sea."
Juridical Regime of Historic Waters, Including Historic Bays, supra, n 27, at 23.
Modern authorities are unanimous on this principle. Thus, Jessup states that
"[i]t seems clear that even transient vessels must obey reasonable rules and regulations laid down by the littoral state in the interests of safety of navigation and maritime police."
And he cites the United States Inland Rules as an example of such regulation of the territorial sea. Jessup, supra, n. 26 at 121, 122, n. 37. Shalowitz also concludes that the right of innocent passage through the territorial sea
"may be conditioned upon the observance of special regulations laid down by the coastal nation for the protection of navigation . . . and other local interests."
1 Shalowitz, supra, n 7, at 23. See also Boggs, Delimitation of the Territorial Sea, 24 Am.J.Int'l L. 541, 542 (1930); 3 G. Gidel, Le Droit International Public de la Mer 633 (1934); Strohl, supra, n 23, at 273, 275.
J. Griffin, The American Law of Collision (1949), is said by Louisiana to be to the contrary. Referring to the "Inland Water Line," the author states that "[t]he Inland Rules apply to vessels of any nationality, since the United States has full jurisdiction over the waters in question." Id. at 11-12. It is clear, however, that the jurisdiction to which the author refers is not the total sovereignty of a coastal nation over its inland waters, but rather the control of the territorial sea. Thus, he notes earlier that the Inland Rules govern "cases arising on coastal and inland waters of the United States which are subject to admiralty jurisdiction." Id. at 8. (Emphasis supplied.)
This international understanding is not a recent development. At the time Congress enacted the Inland and International Rules, there was also no dispute about a coastal nation's power to regulate navigation in its territorial sea. At the 1895 meeting of the International Law Association, Rules Relating to the Territorial Sea were adopted. A six-mile territorial sea was agreed upon, in which all nations would have the right of innocent passage. Article 7 then provided:
"Ships which pass through territorial waters shall conform to the special regulations decreed by the littoral State in the interest and for the security of navigation or as matter of maritime police."
Report of the Seventeenth Conference of the International Law Association held in Brussels, October, 1895 (1896), excerpted in H. Crocker, Extent of the Marginal Sea 178 (1919). An identical article had been approved in 1894 by the Institute of International Law at Paris. Id. at 149. And individual authors of the day often expressed this principle. See the following works excerpted in Crocker: Bluntschli, Le Droit International Codifie (5th ed. 1895), in Crocker, at 10; Calvo, Le Droit International Theorique et Pratique (5th ed. 1896), in Crocker, at 33; Fiore, International Law Codified and Its Legal Sanction, or The Legal Organization of the Society of States (1918), in Crocker, at 58; Latour, La Mer Territoriale au Point de Vue Theorique et Pratique (1889), in Crocker, at 237-238; Von Liszt, Das Volkerrecht (5th ed.1907), in Crocker, at 293; Nuger, Des Droits de l'Etat sur la Mer Territoriale (1887), in Crocker, at 304; Perels, Manuel de Droit Maritime International (1884), in Crocker, at 352-353; Schucking, Das Kustenmeer in Internationalen Rechte (1897), in Crocker, at 436-437.
The 1930 Conference at The Hague also had no doubt of the power of the coastal nation to regulate navigation in the territorial sea. Article 6 of its proposed codification stated:
"Foreign vessels exercising the right of passage shall comply with the laws and regulations enacted in conformity with international usage by the coastal State, and, in particular, as regards: "
"(a) The safety of traffic, and the protection of channels and buoys. . . ."
And the commentary to this Article stated that
"[i]nternational law has long recognised the right of the coastal State to enact, in the general interest of navigation, special regulations applicable to vessels exercising the right of passage through the territorial sea."
3 Acts of the Conference for the Codification of International Law, Territorial Waters 214 (1930).
The recent United Nations study of the concept of historic waters concluded that,
"if the claimant State allowed the innocent passage of foreign ships through the waters claimed, it could not acquire an historic title to these waters as internal waters, only as territorial sea."
Juridical Regime of Historic Waters, Including Historic Bays, supra, n 27, at 23. Under that test, since the United States has not claimed the right to exclude foreign vessels from within the "Inland Water Line," that line could at most enclose historic territorial waters.
Cf. Bouchez, supra, n 23, at 227, 249; Strohl, supra, n 23, at 293.
Inland Rules: Act of May 21, 1948, 62 Stat. 249; Act of August 8, 1953, 67 Stat. 497. International Rules: Act of October 11, 1951, 65 Stat. 406; Act of September 24, 1963, 77 Stat. 194.
18 Fed.Reg. 7893 (1953).
Admiralty Law Enforcement 25-26 (1943). See also the Coast Guard Law Enforcement Manual 3-7 (1954):
"The dividing line between inland and international waters as established by the Commandant, found in 33 CFR 82, is used only for the purpose of the Rules of the Road, and the enforcement of the inland rules of the road. It has no connection with territorial waters, or high seas, or other terms denoting general jurisdiction."
The manual Selected Materials on Coast Guard Law Enforcement 4-5 (1961) is to the same effect:
"The line established by the Commandant of the Coast Guard has no significance with respect to or dependence on the line establishing the limit of the territorial waters of the United States. In some places, the line is inshore of the territorial waters of the United States, while, in others, the line extends well outside the territorial limits of the United States. The sole purpose of the line is to establish a division line between the application of the Inland Rules and the International Rules of the Road."
And in the Commandant's most recent proposal to change the line for the Gulf of Mexico, he observed that "[t]he existing Gulf demarcation line extends about 20 miles out into international waters, as recognized by the State Department." He noted that the proposed "relocation of the line well within territorial waters removes any question of International Law." 32 Fed.Reg. 8763 (1967).
Judicial and lay opinion have agreed on the limited significance of the "Inland Water Line." In discussing the line in United States v. Newark Meadows Imp. Co., 173 F.4d 6, 428, Judge Hough, of the Circuit Court for the Southern District of New York, said in 1909:
"This legislation [the 1895 Act], however, was for the purpose of delimiting the inland waters of the United States, in order to inform navigators where the inland rules of navigation, as distinguished from the international rules, become applicable. It does not purport to change the boundaries of any federal district, nor enlarge the jurisdiction of any particular federal court. . . ."
Louisiana relies on the decision of this Court in The Delaware, 161 U. S. 459, where it was held that the Inland Rules should govern a collision in the Gedney Channel off New York Harbor. Referring to the "Inland Water Line," the Court stated that the enclosed waters were "as much a part of the inland waters of the United States within the meaning of this act as the harbor within the entrance." 161 U.S. at 161 U. S. 463. (Emphasis supplied.) The italicized qualification indicates the Court's understanding of the limited import of the "Inland Water Line."
Writers who have considered the question are unanimous that the "Inland Water Line" serves only the purpose for which it was authorized. Thus, 1 Shalowitz, supra, n. 7, at 23, cautions that the
"physiographic concept of the limits of inland waters should not be confused with the lines established by the United States Coast Guard to separate the areas where the Inland Rules of the Road apply from those to which the International Rules apply. These lines are established for administrative purposes, and have been held to have no application other than the specific purpose of determining what rules of navigation are to be followed."
Similarly, Strohl, supra, n 23, at 4, n. 6, warns that
"[c]are should be exercised not to confuse the term 'internal waters' in the context of [international territorial law] with the term 'inland waters' as used by mariners entering United States coastal waters, where, in certain localities, they are required to operate under what are called Inland Rules of the Road. . . . The boundary lines for 'Inland Waters' within the meaning of United States Inland Rules of the Road do not necessarily coincide with the baselines delimiting the regime of internal waters as understood in general international law."
On the contrary, the titles of the Acts and statements in the legislative history illustrate that Congress' only concern was with the regulation of navigation. E.g., S. Ex. Doc. No. 35, 53d Cong., 3d Sess., 2 (1895). The provision for the delineation of an "Inland Water Line" was an afterthought, added "at the request of the maritime interests of New York and Philadelphia." 27 Cong.Rec. 2059 (1895).
Louisiana argues that, since Article 30 of the 1889 International Marine Conference excepted from the International Rules only special rules for "inland waters," the Conference and Congress must have believed that the power of the coastal nation extended only to those excepted areas. It is clear, however, that both the Conference and Congress recognized the already prevailing principle of international law (see supra, n 29) that the coastal nation had the power to regulate navigation in the territorial sea. But they decided that it would be preferable to have standard international rules, insofar as practicable, on all navigable waters, since there were rarely well marked lines dividing national waters from the high seas. See Protocols of Proceedings of the International Marine Conference in Washington, D.C. in 1889, S. Ex. Doc. No. 53, 51st Cong., 1st Sess., 21-22, 25, 65- 6 127-128, 579, 730 (1890);: H.R.Rep. No. 731, 48th Cong., 1st Sess., 2 (1884).
There have been, for example, several recent changes in the lines. See, e.g., 31 Fed.Reg. 4401, 10322 (1966); 32 Fed.Reg. 7127 (1967); 33 Fed.Reg. 8273 (1968). The stated purpose of one of the 1966 changes was "to bring the regulations up to date with identification of aids to navigation." 31 Fed.Reg. 4401. When the Commandant of the Coast Guard proposed the 1953 changes in the "Inland Water Line" across the Gulf coast, he noted that "[t]hese lines are based on the needs of safety in navigation." 18 Fed.Reg. 2556 (1953). And when the 1953 line was finally adopted, he stated:
"The comments, data, and views submitted which were based on reasons not directly connected with promoting safe navigation were rejected."
"The establishment of descriptive lines of demarcation is solely for purposes connected with navigation and shipping."
18 Fed.Reg. 7893 (1953). Similarly, when the Commandant proposed changes in the line in 1967, his reason was that
"[t]he present demarcation line is not easily located and therefore is not serving its purpose of informing mariners about the rules of the road applicable to their present positions."
32 Fed.Reg. 8763 (1967). The proposed modifications were withdrawn after extended hearings. The notice of withdrawal contained the following comment on some of the evidence adduced at those hearings:
"A number of comments and views submitted did not address themselves to the purpose for which the line of demarcation is authorized under 33 U.S.Code 151, but to other subjects, including State boundaries, State rights, fishing rights, etc. These comments and views were not considered as germane to the proposals under consideration and no action is taken with respect thereto."
32 Fed.Reg. 14775 (1967).
The only alleged departure from this construction of the "Inland Water Line" is one in a set of Coast Guard orders of May 20, 1925 (i.e., during the Prohibition Era), purporting to authorize law enforcement in the "territorial waters" of the United States. "Territorial waters" were defined as comprising
"all waters within a radius of three nautical miles from the 'coast' of the United States . . . and all waters inshore of the lines designated and defined by the Secretary of Commerce . . . as limiting the 'inland waters' of the United States."
This definition is found in a Coast Guard manual for official use only entitled Law Enforcement at Sea relative to Smuggling 2 (1932). While the orders do attach to the "Inland Water Line" a jurisdictional significance beyond the regulation of navigation, they do not support Louisiana's position. The orders clearly equated "inland waters" to the territorial sea.
Letter from W. R. Castle, Jr., to Charge Lundh, July 13, 1929, in 1 G. Hackworth, Digest of International Law 645 (1940).
Louisiana argues that the jurisdictional significance of the "Inland Water Line" is evidenced by its adoption by Congress in several other Acts. Officers Competency Certificates Act, 53 Stat. 1049, 46 U.S.C. § 224a(12)(a); Coastwise Load Line Act, 49 Stat. 888, 46 U.S.C. § 88; Act for inspection of seagoing vessels, 49 Stat. 1544, 46 U.S.C. § 367. In all of these statutes, however, the "Inland Water Line" is adopted as the line seaward of which the provisions are to apply. Consequently they do not represent an exercise of jurisdiction over inland waters.
One congressional committee report in 1953 concluded that perhaps the definition of inland waters could not be uniform, particularly as to Louisiana:
"The hearings in Louisiana were particularly revealing in regard to the weight which should be given to geographical factors. The trip our subcommittee took by air over the shore and coastal area of Louisiana was highly informative on this score. There is a startling difference between the shore and coast line of Louisiana and Florida on the one hand and that of Texas and California, on the other hand. To say that these contrasting coastal areas should be treated exactly alike with reference to the definition of inland waters would ignore geographical factors that are wholly different."
Report of the House Committee on Interior and Insular Affairs, pursuant to H.R.Res. No. 676 authorizing an Investigation and Study of the Seaward Boundaries of the United States, H.R.Rep. No. 2515, 82d Cong., 2d Sess., 19 (1953). The recommendation of that study, however, was that Congress should adopt general guidelines for the definition of inland waters and then delegate the task of drawing exact boundaries to a special commission, an approach which Congress rejected in the Submerged Lands Act. The Attorney General also urged Congress to draw "[a]n actual line on a map" in defining state boundaries to avoid uncertainty and expensive litigation. Hearings on S.J.Res. No. 13, supra, n 20, at 926 (1953). This approach was also rejected in the statute as enacted.
Eleven such dredged channels have been brought to our attention. Moving from east to west, they appear at (1) the Mississippi River-Gulf Outlet through Breton and Chandeleur Sounds, (2) and (3) South and Southwest Passes of the Mississippi River, (4) the Empire Canal, opening into "Ascension Bay" (see infra at 394 U. S. 48), just east of Bastian Bay, (5) the Barataria Bay Waterway through Barataria Bay and into "Ascension Bay," (6) Belle Pass, the arm of Bayou Lafourche just west of Bay Marchand, (7) the Houma Navigation Canal through Terrebonne Bay, (8) the Atchafalaya River Channel through Atchafalaya Bay, (9) the Freshwater Bayou Canal, (10) Calcasieu Pass, and (11) Sabine Pass.
A member of the International Law Commission gave the following explanation:
"The Commission's rule that jetties and piers be treated as part of the coastline [was] based on the assumption that those installations would be of such a type as to constitute a physical part of such coastline; it would indeed have been inconvenient to treat that kind of installation otherwise than in the manner advocated by the Commission."
[1955] 1 Y.B.Int'l L.Comm'n 74. See also [1956] 1 Y.B.Int'l L.Comm'n 193; [1954] 1 Y.B.Int'l L.Comm'n 88-89.
The same understanding is reflected in the discussions at the 1958 Geneva Conference:
"4. Mr. CARMONA (Venezuela) stressed that the International Law Commission had approved the text of article 8 only after the most exhaustive study. The construction of harbour works being of vital importance not only to the coastal State, but also to the ships of all nations, no doubt should be allowed to subsist regarding the status of such works. Governments which had made heavy economic sacrifices to secure their port facilities against the elements had always acted on the assumption that the legal position was precisely as stated in the Commission's text. In those circumstances, any interference with that text might have very serious consequences."
United Nations Conference on the Law of the Sea, Official Records, Vol. III: First Committee (Territorial Sea and Contiguous Zone), Summary Records of Meetings and Annexes, U.N.Doc. A/CONF. 13/39, p. 142. And this view comports with generally accepted definitions of the terms "harbour" and "harbour works." See, e.g., 1 Shalowitz, supra, n 7, at 292:
"Harborworks. -- Structures erected along the seacoast at inlets or rivers for protective purposes, or for enclosing sea areas adjacent to the coast to provide anchorage and shelter."
See also id. at 60, n. 65; Strohl, supra, n 23, at 71-72.
[1954] 1 Y.B.Int'l L.Comm'n 88.
Article 3 provides as follows:
"Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low water line along the coast as marked on large-scale charts officially recognized by the coastal State."
Louisiana argues that, in view of the proviso "[e]xcept where otherwise provided in these articles," the United States cannot maintain that a dredged channel is not a baseline just because it has no low water line. Article 8, it is said, is one of the provisions covered by the exception in Article 3. This argument, however, founders on the language of Articles 3 and 8. The exception in Article 3 refers to methods of determining the baseline other than by the low water mark along the coast. Article 8 does not provide such an alternative method, but merely identifies certain structures which are to be considered part of the coast.
In this regard, the United States points out that, if dredged channels were really "part of the coast" within Article 8, their seaward-most extensions could also serve as headlands from which lines closing indentations could be drawn. As the International Law Commission Commentary explained, "[t]he waters of a port up to a line drawn between the outermost installations form part of the internal waters of the coastal State." [1956] 2 Y.B.Int'l L.Comm'n 270. Yet even Louisiana has recognized the inappropriateness of using the ends of such channels as headlands of bays.
The definition was explained a follows in H.R.Rep. No. 215, 83d Cong., 1st Sess., 4 (1953):
"Section 2(b) defines 'coastline' which is the baseline from which the State boundaries are projected seaward. It means not only the line of ordinary low water along the coast which directly contacts the open sea but it also means the line marking the seaward limit of inland waters."
"Inland waters include all ports, estuaries, harbors, bays, channels, straits, historic bays, sounds, and also all other bodies of water which join the open sea."
In opposing the definition, Senator Cordon stated:
"I would like to see general language used for general purposes, realizing always the hazards of including a few specific references and thereby excluding others, even when we seek to indicate that there are others."
Hearings on S.J.Res. No. 13, supra, n 20, at 1380. And the report of the Senate Committee on Interior and Insular Affairs on the Submerged Lands Act gave this explanation for its deletion:
"The words 'which include all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea' have been deleted from the reported bill because of the committee's belief that the question of what constitutes inland waters should be left where Congress finds it. The committee is convinced that the definition neither adds nor takes away anything a State may have now in the way of a coast and the lands underneath waters behind it."
S.Rep. No. 133, 83d Cong., 1st Sess., 18 (1953).
The bill, H.R. 4198, defined inland waters as including "all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea." (Emphasis supplied.) The last phrase hardly describes a deepening of water already in the open sea.
The low-tide elevations in question are situated near the mouth of Atchafalaya Bay. Louisiana also argues that the United States has overlooked some islands within the Bay, and that low-tide elevations within three miles of those islands should be included under Article 11. The United States disputes the existence of the islands or their characterization as such. The question, being one of fact which cannot be resolved on this record, should be decided, if necessary, by the Special Master.
Another factual question which we leave to the Special Master concerns the existence of an artificially created spoil bank at Pass Tante Phine, just to the north of West Bay. Louisiana contends that it is above water at low tide, whereas the United States argues that, while it used to be so exposed, it is no longer. If the United States is correct in this assertion, of course the spoil bank forms no part of the coast. The same would be true if the bank were surrounded by water at low tide, for Article 11 of the Convention provides for measuring the territorial sea only from those low-tide elevations which are "naturally formed area[s]." However, to the extent that the spoil bank is an extension of the mainland and is uncovered at low tide, it must be taken into account in drawing the baseline under Article 3.
The United States contends that the spoil bank should be ignored because its construction was unauthorized; it was created by the Gulf Refining Co. under a 1956 permit which, it is said, authorized the dredging of a channel but not the creation of a spoil bank. Even assuming that the creation of the bank was not authorized (a question on which we express no opinion whatever), it would not follow that it does not constitute part of the coast. If the United States is concerned about such extensions of the shore, it has the means to prevent or remove them. See United States v. California, 381 U. S. 139, 381 U. S. 177. Nor can we accept the United States' argument that a "mere spoil bank" should not be deemed part of the coast because it is not "purposeful or useful" and is likely to be "short-lived." It suffices to say that the Convention contains no such criteria.
See n 24, supra.
See supra at 394 U. S. 22.
The United States suggests that the issue was decided in United States v. California, for the decree in that case contained this definition of "coast line":
"(a) The line of mean lower low water on the mainland, on islands, and on low tide elevations lying wholly or partly within three geographical miles from the line of mean lower low water on the mainland or on an island. . . ."
382 U.S. 448, 382 U. S. 449. As the United States concedes, however, the issue now before us was not presented by the California case; hence, nothing in that decision controls its resolution.
Report on the Regime of the Territorial Sea 22, [1952] 2 Y.B.Int'l L.Comm'n 33, U.N.Doc. A/CN.4/53 (1952)
Second Report on the Regime of the Territorial Sea 30, [1953] 2 Y.B.Int'l L.Comm'n 57, U.N.Doc. A/CN.4/61 (1953); Addendum to the Second Report on the Regime of the Territorial Sea 5-6, [1953] 2 Y.B.Int'l L.Comm'n 75, U.N.Doc. A/CN.4/ 61/Add. 1 (1953); Third Report on the Regime of the Territorial Sea 13, [1954] 2 Y.B.Int'l L.Comm'n 5, U.N.Doc. A/CN.4/77 (1954).
Report of the International Law Commission Covering the Work of its Sixth Session, [1954] 2 Y.B.Int'l L.Comm'n 156, U.N.Doc. A/CN.4/88 (1954).
The Commentary to the 1954 Commission draft stated:
"Drying rocks and shoals situated wholly or partly in the territorial sea are treated in the same way as islands. The limit of the territorial sea will accordingly make allowances for the presence of such drying rocks and will jut out to sea off the coast. Drying rocks and shoals, however, which are situated outside the territorial sea have no territorial sea of their own."
"The Commission considers that the above article expresses the international law in force."
Ibid. The meaning of the initial 1952 proposal to the Commission
"was that, even if an elevation of the sea bed was only uncovered at low tide, provided it was situated within the territorial sea, the limits of the territorial sea would thereby be extended further out into the high seas. That point of view corresponded with the observation by the Preparatory Committee of The Hague Conference. . . ."
[1952] 1 Y.B.Int'l L.Comm'n 175. The 1930 Conference at The Hague had adopted a similar article:
"Elevations of the seabed situated within the territorial sea, though only above water at low tide, are taken into consideration for the determination of the baseline of the territorial sea."
(Emphasis supplied.) Acts of the Conference for the Codification of International Law, supra, n 29, at 217 (1930). The observations of the subcommittee reporting to The Hague Conference further reveal the longstanding acceptance of this concept:
"If an elevation of the seabed which is only uncovered at low tide is situated within the territorial sea off the mainland, or off an island, it is to be taken into consideration on the analogy of the North Sea Fisheries Convention of 1882 in determining the baseline of the territorial sea."
Ibid.
The United States argues that the discussion of this issue in connection with the Fisheries Case (United Kingdom v. Norway), [1951] I.C.J. 116, indicates an understanding that a low tide elevation must be within a certain distance from land in order to have a territorial sea of its own. The opinion of the International Court of Justice discussed the contentions of the parties but found it unnecessary to decide the question because "in fact none of the drying rocks used by [Norway] as base points is more than 4 miles from permanently dry land." Id. at 128. The United States relies on the following statement by the United Kingdom of its position:
"A bank or rock exposed only at low tide (low tide elevation) is significant in regard to territorial waters only if it lies within a belt of territorial sea measured from the low water mark of land permanently exposed. . . ."
1 Fisheries Case, I. C.J. Pleadings 75 (1951). This statement, however, does not exclude low tide elevations which fall within the territorial sea by virtue of closing lines across bays, and other United Kingdom submissions to the International Court of Justice more accurately reveal its position on this question:
"[W]here there is a low tide elevation situ