This case, which was instituted by the United States to quiet
title to the seabed along the coast of the Atlantic Ocean, presents
the question whether Nantucket Sound qualifies as "internal waters"
of Massachusetts rather than partly territorial sea and partly high
seas as the United States contends. Massachusetts has excepted to
the portion of the Special Master's report that concludes that
Nantucket Sound is not a part of Massachusetts' inland waters under
the doctrine of "ancient title." Massachusetts contends that, under
such doctrine, the English Crown acquired title to Nantucket Sound
as a result of discovery and occupation by colonists in the early
17th century, and that Massachusetts has succeeded to the Crown's
title.
Held: Massachusetts cannot prevail under the doctrine
of "ancient title." Pp.
475 U. S.
93-105.
(a) Principles of international law have been followed
consistently in fixing the United States' coastline. Massachusetts
contends that the doctrine of "ancient title" is a sufficient basis
for identifying a "historic bay," under Article 7(6) of the
Convention on the Territorial Sea and Contiguous Zone, so as to
constitute "internal waters" of the sovereign. To claim "ancient
title" to waters that would otherwise constitute high seas or
territorial sea, a sovereign must base its title on "occupation,"
that is, a title based on "clear original title" which is fortified
"by long usage." The parties agree that effective "occupation" must
have taken place before the freedom of the seas became a part of
international law -- no later than the latter half of the 18th
century. Pp.
475 U. S.
93-96.
(b) The pertinent exhibits and transcripts show that
Massachusetts did not effectively "occupy" Nantucket Sound so as to
obtain "clear original title" and fortify that title "by long
usage" before the seas were recognized to be free. For purposes of
the "ancient title" doctrine, "occupation" requires, at a minimum,
the existence of acts, attributable to the sovereign, manifesting
an assertion of exclusive authority over the waters claimed. The
historical evidence introduced by Massachusetts does not show
occupation by the colonists of Nantucket Sound as a whole.
Massachusetts' evidence of occupation is also deficient because it
does not warrant a finding that the colonists asserted any
exclusive right to the waters. Moreover, Massachusetts has not
established any linkage between the colonists' activities and the
English Crown. Thus, Great
Page 475 U. S. 90
Britain did not obtain title which could devolve upon
Massachusetts. Pp.
475 U. S.
97-103.
(c) The determination that Massachusetts had not established
clear title prior to freedom of the seas is corroborated by its
consistent failure to assert dominion over Nantucket Sound since
that time. Rather, during the 18th and 19th centuries Massachusetts
continued to treat Nantucket Sound in a manner inconsistent with
its recent characterization of that body as internal waters. Pp.
475 U. S.
103-105. Exception overruled.
STEVENS, J., delivered the opinion of the Court, in which all
other Members joined, except MARSHALL, J., who took no part in the
consideration or decision of the case.
JUSTICE STEVENS delivered the opinion of the Court.
The question now before the Court is whether Nantucket Sound
qualifies as "internal waters" of the Commonwealth of
Massachusetts, rather than partly territorial sea and partly high
seas as the United States contends. We agree with the Special
Master's conclusion that the Commonwealth's claim should be
rejected.
I
Pursuant to an earlier decree of this Court, [
Footnote 1] the United States and
Massachusetts in 1977 filed a joint motion for supplemental
Page 475 U. S. 91
proceedings to determine the location of the Massachusetts
coastline. After our appointment of a Special Master, 433 U.S. 917
(1977), the parties agreed on a partial settlement, which we
approved in 1981.
452 U. S. 429.
Left unresolved was the status of Vineyard Sound and Nantucket
Sound, a dispute which gave rise to extensive hearings before the
Special Master. The Master concluded that Vineyard Sound is a
"historic bay," and therefore a part of the inland waters of
Massachusetts. However, he reached a contrary conclusion concerning
Nantucket Sound. Explaining that the decision concerning Vineyard
Sound has only minimal practical significance, [
Footnote 2] the United States has taken no
exception to the Master's report. Massachusetts, however, has
excepted to that part of the report concerning Nantucket Sound.
Specifically, although Massachusetts acquiesces in the
determination that the doctrine of "historic title" does not
support its claim, it continues to maintain that it has "ancient
title" to Nantucket Sound.
Nantucket Sound is a relatively shallow body of water south of
Cape Cod, northeast of the island of Martha's Vineyard, and
northwest of the island of Nantucket. Massachusetts contends that
the English Crown acquired title to this territory as a result of
discovery and occupation by colonists in the early 17th century,
and that it succeeded to the Crown's title by virtue of various
Royal Charters or by the Treaty of Paris, which ended the
Revolutionary War. [
Footnote
3]
Page 475 U. S. 92
To prove that Great Britain acquired title to Nantucket Sound
which it could pass to Massachusetts, much of the evidence
presented to the Special Master concerned whether Nantucket Sound
would have been considered "county waters" under English law in the
17th century. Under the "county waters" doctrine, waters "
inter
fauces terrae" or landward of an opening "between the jaws of
the land" could be subject to the jurisdiction of the littoral
county rather than the Admiral if the jaws were close enough to
each other to satisfy a somewhat ambiguous line-of-sight test.
Under Lord Coke's version of the test, a person standing on one jaw
must be able to "see what is done" on the other jaw; [
Footnote 4] under Lord Hale's more expansive
version, it is merely necessary that "a man may reasonably discern
between shore and shore." [
Footnote
5]
Page 475 U. S. 93
The relevant jaws of land in this case are the southern tip of
Monomoy Island, which extends south from the elbow of Cape Cod, and
the northern tip of Nantucket Island. At the present time, those
two jaws are 9.2 nautical miles apart, but the distance may have
been greater in colonial times. In any event, the parties agree
that the distance was too great to satisfy Lord Coke's version of
the test. Whether it would meet Lord Hale's test depends, in the
opinion of the Master, on whether the Commonwealth's burden of
proof is merely to persuade by a preponderance of the evidence or
by evidence that is "clear beyond doubt." For purposes of our
decision, we put to one side the parties' argument about the
burden, and assume that Lord Hale's test is satisfied. [
Footnote 6] On the assumption that
Nantucket Sound could have been considered "county waters" under
the common law of England in the 17th century, we nevertheless
conclude that Massachusetts cannot prevail under the doctrine of
"ancient title" on which it relies.
II
This Court has consistently followed principles of international
law in fixing the coastline of the United States. [
Footnote 7] We
Page 475 U. S. 94
have relied in particular on the Convention on the Territorial
Sea and Contiguous Zone, [1958] 15 U.S.T. 1607, T.I.A.S. No. 5639.
[
Footnote 8] The Convention
provides that the sovereignty of a state extends to "internal
waters." Art. 1. The Convention also contains a set of rules
delimiting those waters. Generally speaking, Article 5(1) defines
"internal waters" as those waters landward of a baseline which
Article 3 in turn defines as "the low-water line along the coast as
marked on large-scale charts officially recognized by the coastal
State." Of importance to this case, the Convention also includes as
a state's "internal waters" those waters enclosed in "bays" as
defined in Article 7. Most of the rules in this Article identify
the criteria for defining "juridical bays," but Article 7(6)
further includes as "bays" "so-called
historic' bays" and
waters landward of baselines marked when "the straight baseline
system provided for in Article 4 is applied."
In this case, Massachusetts relies exclusively on the provision
recognizing "historic bays," for it is agreed both that the United
States has legitimately eschewed the straight baseline method for
determining its boundaries, [
Footnote 9] and that Nantucket Sound does not qualify as a
juridical bay. Because "historic bay" is not defined in the
Convention, we have previously relied on a United Nations study
authored by the U.N. Secretariat and entitled Juridical Regime of
Historic Waters, Including Historical Bays, [1962] 2 Y.B.Int'l
L.Comm'n 1, U. N. Doc. A/CN.4/143 (1962) (hereinafter Juridical
Regime).
See United States v. Louisiana (Alabama and
Page 475 U. S.
95
Mississippi Boundary Case), 470 U. S.
93,
470 U. S.
101-102 (1985). That study prescribes the three factors
of dominion, continuity, and international acquiescence recognized
in our own cases for identifying a "historic bay." [
Footnote 10] The Commonwealth submits that
the three-part test is actually the standard for finding "historic
title," and that a different doctrine -- the doctrine of
"ancient title" -- is also a sufficient basis for identifying a
"historic
bay" under Article 7(6) of the Convention.
According to Massachusetts, "historic title" is the maritime
counterpart of title acquired by adverse possession. It is
prescriptive in character, because it arises as a result of a
state's exercise of dominion over water that would otherwise
constitute either high seas or territorial sea, in which all ships
enjoy the right of innocent passage. Before this Court,
Massachusetts no longer claims "historic title" as it uses the
term. Brief for Defendant Massachusetts 4; Reply Brief for
Defendant Massachusetts 22.
The Commonwealth instead relies entirely on a claim of "ancient
title." This is the first case in which we have been
Page 475 U. S. 96
asked to evaluate such a claim to coastal waters. According to
the Juridical Regime, an "ancient title" is based on a state's
discovery and occupation of territory unclaimed by any other
sovereign when it was first acquired. To claim "ancient title" to
waters that would otherwise constitute high seas or territorial
sea, a state must
"affir[m] that the occupation took place before the freedom of
the high seas became part of international law. In that case, the
State would claim acquisition of the area by an occupation which
took place long ago. Strictly speaking, the State would, however,
not assert a historic title, but rather an ancient title based on
occupation as an original mode of acquisition of territory. The
difference may be subtle, but should, in the interest of clarity,
not be overlooked: to base the title on occupation is to base it on
a
clear original title which is fortified by long
usage."
Juridical Regime, at 12 (� 71) (emphasis added). Assuming,
arguendo, that waters that would otherwise be considered
high seas or territorial sea may be claimed under a theory of
"ancient title," both parties agree that effective "occupation"
must have taken place before the freedom of the high seas became a
part of international law. Tr. of Oral Arg. 16-17, 34, Brief for
Defendant Massachusetts 4. By this analysis, the title must have
been perfected no later than the latter half of the 18th century.
[
Footnote 11]
Page 475 U. S. 97
III
Although the Special Master discussed
"the history of [Nantucket Sound], especially [its] role in the
development of the colonial economy of Martha's Vineyard and
Nantucket Island,"
Report 27, his discussion leaves us in doubt whether he felt
that "the colonists' exploitation of the marine resources of the
soun[d] was equivalent to a formal assumption of sovereignty over"
it before freedom of the seas became generally recognized.
Id. at 58. [
Footnote
12] Because the Commonwealth relied on the same historical
evidence to establish
Page 475 U. S. 98
both "historic" and "ancient" title, and because "the ultimate
responsibility for deciding what are correct findings of fact
remains with us" in any event, [
Footnote 13] we have examined for ourselves the pertinent
exhibits and transcripts. Our independent review leads us to
conclude that the Commonwealth did not effectively "occupy"
Nantucket Sound so as to obtain "clear original title" and fortify
that title "by long usage" before the seas were recognized to be
free.
Massachusetts relies on the colonists"'intensive and exclusive
exploitation" of the marine resources of Nantucket Sound to
establish occupation. Reply Brief for Defendant Massachusetts 17.
At the outset, we have some difficulty appraising the
Commonwealth's historical evidence because the cases and
publications cited to us uniformly discuss occupation in the
context of "historic," rather than "ancient," title. Assuming that
the parties are correct in their unspoken assumption that
occupation sufficient to establish "historic title" resembles that
necessary to acquire "ancient title" as well, and further assuming
that such title extends to the whole of the waters of the Sound and
is not merely a right to exploit its resources, we believe that
occupation requires, at a minimum, the existence of acts,
attributable to the sovereign, manifesting an assertion of
exclusive authority over the waters claimed. [
Footnote 14] The history of the two most
publicized cases conveys the international understanding of
occupation.
Page 475 U. S. 99
In the
Fisheries Case (United Kingdom v. Norway), 1961
I.C.J. 116, the Permanent International Court of Justice upheld
Norway's use of straight baselines (now approved expressly by
Article 7(6) of the Convention), in part because Norway had proved
a historic claim to the "comparatively shallow" waters between the
mainland and the fringing islands known as the Skjaergaard, or
"rock rampart." The court acknowledged that Norwegian fishermen had
exploited fishing grounds in this region "from time immemorial,"
id. at 127, and that the King of Denmark and Norway had
excluded fishermen from other states "for a long period, from
1616-1618 until 1906."
Id. at 124;
see id. at
142.
Of similar effect is the case of
Annakumaru Pillai v.
Muthupayal, 27 Indian L.R.Madras 551 (1903). The complainant
in that case was a lessee of the Rajah of Ramnad, who accused the
defendant of stealing chanks (mollusks) from the seabed five miles
off the Ramnad coast. The Indian High Court upheld its own
jurisdiction and the liability of the defendant "upon the
immemorial claim of the land sovereign over this body of water." P.
Jessup, The Law of Territorial Waters and Maritime Jurisdiction 16
(1927) (footnote omitted). The Officiating Chief Judge, relying on
historical evidence dating from the 6th century B.C. and explaining
the concessions under which chanks and pearls were historically
gathered by the state's licensees, declared that "it would be
impossible to ignore the fact that, for ages in this country,
chanks and pearl oysters have been owned and enjoyed by the
sovereign as belonging by prerogative right exclusively to him." 27
Indian L.R.Madras, at 557.
"And [because] chanks as well as pearl oysters while still in
the beds have always been taken to be the exclusive property of the
sovereign, . . .
Page 475 U. S. 100
the fishery operations connected therewith have always been
carried on under State control and have formed a source of revenue
to the exchequer."
Id. at 554. The Officiating Chief Judge concluded that
this history demonstrated "exclusive occupation" of "the fisheries
in question."
Id. at 566. [
Footnote 15]
We have encountered additional examples of claims to title based
on exploitation of marine resources -- the pearl fisheries in
Australia, Mexico, and Columbia, the oyster beds in the Bay of
Granville and off the Irish Coast, the coral beds off the coasts of
Algeria, Sardinia, and Sicily, and various grounds in which
herring, among other fishes, are found.
See T. Fulton, The
Sovereignty of the Sea 696-698 (1976 reprint of 1911 ed.). The
continuation of apparently longstanding state regulation over these
fisheries does not contradict, and is indeed perfectly consistent
with, the understanding of occupation reflected in the Norwegian
and Indian cases just discussed.
In contrast, the historical evidence introduced by Massachusetts
does not show effective occupation of Nantucket Sound. To be sure,
the Commonwealth's expert witness on the history of the Sound, Dr.
Louis DeVorsey, a historical geographer, did conclude that
Nantucket Sound was part of an "amphibious resource region" because
of the "intimate relationship" between the inhabitants of the area
and the surrounding waters. [
Footnote 16] By this, Dr. DeVorsey meant essentially
Page 475 U. S. 101
that the residents took their livelihood from the sea. Although
fascinating from a historical geographer's point of interest, the
testimony of Dr. DeVorsey and the exhibits introduced through him
do not satisfy the legal threshold for occupation of a coastal
water body.
To begin with, the opinion that Nantucket Sound formed part of
an "amphibious resource region" does not prove occupation of the
entirety of Nantucket Sound. That conclusion was based largely on
activity which undoubtedly took place either within territorial
waters or on dry land. For example, to evidence the colonists'
close relationship with the sea, Dr. DeVorsey pointed to the use of
sand for glassmaking, stone polishing, and farming. Other
activities, such as the building of mills powered by the tide, the
making of salt from seawater, and the gathering of seaweed for
fertilizer and insulation, also fail to establish occupation of
Nantucket Sound. Even considering this evidence together with the
more water-based pursuits of harvesting oysters and clams and
hunting whales, we do not find sufficient evidence of occupation of
Nantucket Sound as a whole. Massachusetts concedes that oysters
were dug mainly in the harbors, and for decades the colonists'
exploitation of whales was restricted to those that had drifted
onto the beach. Although the residents by the mid-18th century had
developed a technique for driving whales onto beaches by pursuing
them in modified four- to five-man Indian canoes, and they
certainly caught shellfish and clams outside the shallow water near
shore, there is no satisfactory evidence that these activities
occurred over the entirety of Nantucket Sound, and in particular
over the portion of the Sound which the United States contends is
high seas.
The evidence of occupation adduced by Massachusetts is also
deficient because it does not warrant a finding that the
Page 475 U. S. 102
colonists asserted any exclusive right to the waters of
Nantucket Sound. The closest the Commonwealth comes is a 1672
contract by which the town of Nantucket attempted to engage a
whaler by the name of Lopar to "follow the trade of whaling on the
island" for two years in exchange for,
inter alia, an
exclusive license to hunt whales and 10 acres of land. There is no
evidence that the contract was carried out (and in particular no
record of a conveyance of real property), and no suggestion in the
contract that the license was limited, or even especially concerned
with, whaling in Nantucket Sound. Indeed, the contract does not
clearly reflect an exclusive proprietary interest in whales
anywhere: it may simply represent a covenant on the part of the
Nantucket islanders not to compete with the whaling company or
companies chartered under the proposed contract. The only other
evidence of an assertion of exclusive control was a 1692 Colonial
Resolve to build a vessel to protect coastal ships in Vineyard
Sound against the depredations of New Yorkers, with whom a dispute
was brewing at the time. [
Footnote 17] But this evidence concerning Vineyard Sound
merely highlights the lack of any comparable evidence concerning
Nantucket Sound. In the absence of evidence limiting use of
Nantucket Sound to the inhabitants of its shores, there is no
reason to exempt these waters from such rights as innocent passage
traditionally enjoyed in common by all members of the international
polity.
Even if Massachusetts had introduced evidence of intensive and
exclusive exploitation of the entirety of Nantucket Sound, we would
still be troubled by the lack of any linkage between these
activities and the English Crown.
Cf. United States v.
Alaska, 422 U. S. 184,
422 U. S. 190-191,
422 U. S. 203
(1975). Unless we are to believe that the self-interested endeavors
of every seafaring community suffice to establish "ancient title"
to
Page 475 U. S. 103
the waters containing the fisheries and resources it exploits,
without regard to continuity of usage or international acquiescence
necessary to establish "historic title," solely because
exploitation predated the freedom of the seas, then the
Commonwealth's claim cannot be recognized. Accordingly, we find
that the colonists of Nantucket Sound did not effectively occupy
that body of water; as a consequence, Great Britain did not obtain
title which could devolve upon Massachusetts.
IV
Our determination that Massachusetts had not established clear
title prior to freedom of the seas is corroborated by the
Commonwealth's consistent failure to assert dominion over Nantucket
Sound since that time. [
Footnote
18] Three examples should suffice to demonstrate that, during
the 18th and 19th centuries, Massachusetts continued to treat
Nantucket Sound in a manner inconsistent with its recent
characterization of that body as internal waters.
Page 475 U. S. 104
First, in 1847, the Supreme Judicial Court of Massachusetts
issued an opinion which is generally understood as having adopted
Lord Coke's more demanding version of the line-of-sight test for
determining whether jaws of land enclosed inland waters. [
Footnote 19] Since it is agreed that
Nantucket Sound could not qualify as inland waters under the Coke
test, the Court's decision that that test was part of the common
law of Massachusetts supports the further conclusion that the Sound
was not part of the internal waters of the Commonwealth.
This conclusion was confirmed in 1859, when the Massachusetts
Legislature enacted a statute defining the seaward boundary of the
Commonwealth at one marine league (or three nautical miles) from
the coast.
See Acts of 1859, Ch. 289, Mass.Ex. 53. In
accordance with this measure, the statute treated arms of the sea
as part of the Commonwealth if the distance between their headlands
did not exceed two marine leagues. Thus, the statute replaced the
ambiguous line-of-sight test for applying the
inter fauces
terrae doctrine
Page 475 U. S. 105
with a fixed standard of six nautical miles. Since the distance
between Monomoy Point and Nantucket Island is admittedly more than
six nautical miles, Massachusetts' statutory definition of its own
coastline excluded Nantucket Sound.
Finally, in 1881, the Massachusetts Legislature enacted a
statute directing its Harbor and Land Commission to prepare charts
identifying the boundaries that had been established by the 1859
law. Official charts prepared pursuant to that legislation are
consistent with the Master's conclusion that Vineyard Sound was
considered part of the Commonwealth, but that Nantucket Sound was
not.
It was not until 1971 that Massachusetts first asserted its
claim to jurisdiction over Nantucket Sound. There is simply no
evidence that the English Crown or its colonists had obtained
"clear original title" to the Sound in the 17th century, or that
such title was "fortified by long usage." Without such evidence, we
are surely not prepared to enlarge the exception in Article 7(6) of
the Convention for historic bays to embrace a claim of "ancient
title" like that advanced in this case. [
Footnote 20]
The parties are directed to prepare and submit a decree
conforming to the recommendations of the Special Master.
It is so ordered.
JUSTICE MARSHALL took no part in the consideration or decision
of this case.
[
Footnote 1]
In 1968, the United States invoked our original jurisdiction to
quiet title to the seabed along the coast of the Atlantic Ocean. In
1976, we entered a decree affirming the title of the United States
to the seabed more than three geographic miles seaward of the
coastline, and of the States to the seabed within the
3-geographic-mile zone.
United States v. Maine,
423 U. S. 1 (1975).
See also United States v. Maine, 420 U.
S. 515 (1976). In that decree, we reserved jurisdiction
which either the "United States or any defendant State [could]
invoke . . . by filing a motion in this Court for supplemental
proceedings." 423 U.S. at
423 U. S. 2.
[
Footnote 2]
According to the Solicitor General, all but 1,000 acres of the
submerged lands of Vineyard Sound belong to the Commonwealth of
Massachusetts as underlying territorial waters, even under its view
that those waters are not inland.
[
Footnote 3]
In particular, the Commonwealth points to the charter granted in
1664 by King Charles II to the Duke of York conveying title to New
York, New Jersey, and most of New England,
cf. 41 U.
S. Waddell, 16 Pet. 367,
41 U. S.
413-414 (1842);
Mahler v. Norwich & N.Y. Transp.
Co., 35 N.Y. 352, 355 (1866), and to the charter granted in
1691 by the English monarchs William and Mary to the colonists of
Massachusetts consolidating into "one reall Province by the Name of
Our Province of the Massachusetts Bay in New England" the
territories and colonies that were then commonly known as
Massachusetts Bay, New Plymouth, "the Province of Main," and the
territory called Accadia or Nova Scotia,
see Mass. Ex. 45,
p. 8. Alternatively, Massachusetts asserts that it acquired
sovereignty over the area by virtue of the Treaty of Paris signed
in 1783.
Cf. Manchester v. Massachusetts, 139 U.
S. 240,
139 U. S.
256-257 (1891);
Mahler v. Norwich & N.Y. Transp.
Co., 35 N.Y. at 356.
[
Footnote 4]
E. Coke, Institutes 140 (6th ed. 1681) ("It is no part of the
Sea, where one may see what is done of the one part of the water,
and of the other, as to see from one Land to the other, that the
Coroner shall exercise his office in this case, and of this the
Country may have knowledge; whereby it appeareth that things done
there are triable by the Country (that is, by Jury) and
consequently not in the Admiral Court").
[
Footnote 5]
M. Hale, De Jure Maris et Brachiorum ejusdem, cap. iv (1667),
reprinted in R. Hall, Essay on the Rights of the Crown and the
Privileges of the Subject in the Sea Shores of the Realm, App. vii
(2d ed. 1875) ("That arm or branch of the sea, which lies within
the
fauces terrae, where a man may reasonably discerne
between shore and shore, is or at least may be within the body of a
county, and therefore within the jurisdiction of the sheriff or
coroner").
[
Footnote 6]
The Special Master rested his conclusion that Massachusetts had
to prove its claim "clear beyond doubt" on two cases of this Court
and three reports of Special Masters in original jurisdiction
cases.
See Louisiana Boundary Case, 394 U. S.
11,
394 U. S. 77
(1969);
United States v. California, 381 U.
S. 139,
381 U. S. 175
(1965); Report of the Special Master, O.T. 1983, No. 35 Orig., p.
11; Report of the Special Master, O.T. 1974, No. 9 Orig., pp.
18-19; Report of the Special Master, O.T. 1973, No. 52 Orig., p.
42.
Cf. United States v. Louisiana (Alabama and Mississippi
Boundary Case), 470 U. S. 93,
470 U. S. 111
(1985).
Although the Master's conclusion regarding the burden of proof
was the focus of the Commonwealth's opening brief, we find it
unnecessary to address the issue, given our disposition of the
case. Whatever the measure of proof, Massachusetts concedes that it
bears the risk of nonpersuasion.
See Brief for Defendant
Massachusetts 7.
[
Footnote 7]
See United States v. California, 381 U.S. at
381 U. S.
161-167.
See also Alabama and Mississippi Boundary
Case, 470 U.S. at
470 U. S. 98;
United States v. Maine (Rhode Island and New York Boundary
Case), 469 U. S. 504,
469 U. S. 513
(1985);
United States v. Alaska, 422 U.
S. 184,
422 U. S.
188-189 (1975);
Louisiana Boundary Case, 394
U.S. at
394 U. S.
35.
[
Footnote 8]
See Louisiana Boundary Case, id. at
394 U. S. 21
(Convention contains "
the best and most workable definitions
available'" (quoting United States v. California, 381 U.S.
at 381 U. S.
165)).
[
Footnote 9]
We have previously held that the decision to use the straight
baseline system provided for in Article 4 of the Convention rests
with the Federal Government.
See Alabama and Mississippi
Boundary Case, 470 U.S. at
470 U. S. 99;
Louisiana Boundary Case, 394 U.S. at
394 U. S. 72-73;
United States v. California, 381 U.S. at
381 U. S.
167-168.
[
Footnote 10]
"The term 'historic bay' is not defined in the Convention, and
there is no complete accord as to its meaning. The Court has stated
that a historic bay is a bay 'over which a coastal nation has
traditionally asserted and maintained dominion with the
acquiescence of foreign nations.'
United States v.
California, 381 U.S. at
381 U. S.
172.
See also United States v. Alaska, 422 U.S.
at
422 U. S. 189;
Louisiana
Boundary Case, 394 U.S. at
394 U. S.
23. The Court also has noted that there appears to be
general agreement that at least three factors are to be taken into
consideration in determining whether a body of water is a historic
bay: (1) the exercise of authority over the area by the claiming
nation; (2) the continuity of this exercise of authority; and (3)
the acquiescence of foreign nations.
See United States v.
Alaska, 422 U.S. at
422 U. S. 189;
Louisiana
Boundary Case, 394 U.S. at
394 U. S.
23-24, n. 27. An authoritative United Nations study
concludes that these three factors require that"
"the coastal State must have effectively exercised sovereignty
over the area continuously during a time sufficient to create a
usage, and have done so under the general toleration of the
community of States."
"Juridical Regime of Historic Waters, Including Historic Bays
56, U.N.Doc. A/CN.4/143 (1962)."
Alabama and Mississippi Boundary Case, 470 U.S. at
470 U. S.
101-102 (footnotes omitted).
[
Footnote 11]
One cannot, as a historical matter, point to a precise date on
which the international community would have rejected an assertion
of sovereignty over Nantucket Sound as contrary to international
law. It is clear, however, that such a claim would have become
progressively less tenable throughout the 18th century:
"The seventeenth century marked the heyday of the
mare
clausum (closed sea) with claims by England, Denmark, Spain,
Portugal, Genoa, Tuscany, the Papacy, Turkey, and Venice."
"In the eighteenth century, the position changed completely.
Dutch policies had favoured freedom of navigation and fishing in
the previous century, and the great publicist Grotius had written
against the Portuguese monopoly of navigation and commerce in the
East Indies. After the accession of William of Orange to the
English throne in 1689 English disputes with Holland over fisheries
ceased. However, sovereignty of the sea was still asserted against
France, and in general the formal requirement of the salute to the
flag was maintained. By the late eighteenth century, the claim to
sovereignty was obsolete, and the requirement of the flag ceremony
was ended in 1805. After 1691, extensive Danish claims were reduced
by stages to narrow fixed limits. By the late eighteenth century,
the cannon-shot rule predominated, and claims to large areas of sea
faded away."
L. Brownlie, Principles of Public International Law 233-234 (2d
ed.1973) (footnotes omitted).
"[I]t is an undeniable fact that, since the days of Grotius, the
principle of the freedom of the high seas found an ever-wider
currency, and that, after a gradual evolution, it gained the upper
hand towards the beginning of the nineteenth century, when it
crystallized into a universally accepted principle of international
law."
Y. Blum, Historic Titles in International Law § 61, pp. 242-243
(1965).
We find it unnecessary to select a "critical date" upon which
the community of states would have rejected a British claim to
Nantucket Sound. Because the colonists' activities changed
gradually in character and intensity over time, we need say only
that effective "occupation" must have ripened into "clear original
title," "fortified by long usage," no later than the latter half of
the 1700's.
[
Footnote 12]
The Special Master discussed this history only as regards
"historic" title,
see Report 27, even though he recognized
that "[e]ffective occupation, from a time prior to the victory of
the doctrine of freedom of the seas" is necessary "to establish a
valid claim to a body of water under ancient title,"
id.
at 25-26.
[
Footnote 13]
Colorado v. New Mexico, 467 U.
S. 310,
467 U. S. 317
(1984).
See Alabama and Mississippi Boundary Case, 470
U.S. at
470 U. S. 101,
and cases cited therein.
[
Footnote 14]
The Juridical Regime quotes two definitions of "occupation":
"[Occupation] is defined by Oppenheim as follows:"
" Occupation is the act of appropriation by a State by which it
intentionally acquires sovereignty over such territory as is at the
time not under the sovereignty of another State."
"A similar definition is given by Fauchille:"
" Generally speaking, occupation is the taking by a State, with
the intention of acting as the owner, of something which does not
belong to any other State but which is susceptible of
sovereignty."
Juridical Regime, at 12 (� 70). On the possible difference
between occupation as a mode of original acquisition of territory
as contrasted to occupation eventuating in prescriptive
acquisition,
see M. Strohl, The International Law of Bays
328, n. 27 (1963).
[
Footnote 15]
Because of a division of opinion between the Officiating Chief
Judge and the second judge on the two-judge panel, the case was
subsequently heard by a three-judge panel. The later panel
unanimously agreed with the judgment of the Officiating Chief Judge
and with his historical analysis.
See Annakumaru Pillai v.
Muthupayal, 27 Indian L.R.Madras at 572.
[
Footnote 16]
Dr. DeVorsey inferred this intimate relationship in part from
17th- and 18th-century maps naming prominent features and
attempting to chart the depths of Nantucket Sound. As Dr. DeVorsey
acknowledged, however, none of these maps identified Nantucket
Sound as a separate body of water, even though they did identify
other bodies of water, such as Cape Cod Bay, Buzzard's Bay, and, in
two instances, Vineyard Sound. These early maps do not support
Massachusetts' contention that the area's inhabitants established a
special relationship with the protected waters of Nantucket Sound,
as opposed to the surrounding waters and ocean in general.
[
Footnote 17]
The dispute was resolved peacefully, there is no evidence that
the vessel was built, and the only other patrol vessel about which
Dr. DeVorsey testified was engaged in convoying merchantmen, not in
protecting Nantucket Sound.
[
Footnote 18]
See Temple of Preah Vihear, 1962 I.C.J. 6, 61 (separate
opinion of Sir Gerald Fitzmaurice) ("It is a general principle of
law . . . that a party's attitude, state of mind or intentions at a
later date can be regarded as good evidence -- in relation to the
same or a closely connected matter -- of his attitude, state of
mind or intentions at an earlier date also; . . . the existence of
a state of fact, or of a situation, at a later date, may furnish
good presumptive evidence of its existence at an earlier date also,
even where the later situation or state of affairs has in other
respects to be excluded from consideration" (citations
omitted)).
While the position of Massachusetts is discussed in text, it
bears mention that the United States did not assert sovereignty
over Nantucket Sound either. In 1789, the First Congress
established a customs enforcement system which included a number of
separate districts in Massachusetts. The statutory definition of
the district of Nantucket included "the island of Nantucket,"
without any reference to adjacent waters, whereas the district of
Edgartown, which included Martha's Vineyard and the Elizabeth
Islands, expressly incorporated "all the waters and shores" within
Duke's County. Act of July 31, 1789, 1 Stat. 31. This distinction
was repeated in subsequent legislation in 1790, Act of Aug. 4,
1790, 1 Stat. 146, and in 1799, Act of Mar. 2, 1799, 1 Stat.
629.
[
Footnote 19]
In
Commonwealth v. Peters, 53 Mass. 387, 392 (1847),
the Massachusetts high court held:
"All creeks, havens, coves, and inlets lying within projecting
headlands and islands, and all bays and arms of the sea lying
within and between lands not so wide but that persons and objects
on the one side can be discerned by the naked eye by persons on the
opposite side, are taken to be within the body of the county."
Chief Judge Shaw's adoption of the Coke test in
Peters
is consistent with Judge Story's earlier exposition in
United
States v. Grush, 26 F. Cas. 48, 52 (No. 15,268) (CC Mass.
1829):
"I do not understand by this expression that it is necessary
that the shores should be so near that all that is done on one
shore could be discerned, and testified to with certainty, by
persons standing on the opposite shore; but that objects on the
opposite shore might be reasonably discerned, that is, might be
distinctly seen with the naked eye, and clearly distinguished from
each other."
The parties do not disagree with the Master's conclusion that
the American view of the proper test, which followed Coke, differed
from the British view, which followed Hale.
[
Footnote 20]
The validity of and any limits to the "ancient title" theory are
accordingly reserved for an appropriate case. In view of our
decision that the history of Nantucket Sound does not support the
acquisition of "ancient title" by Massachusetts, we similarly
decline to address the question whether the Commonwealth abandoned
or renounced that title, and the antecedent issue of under what
standard that judgment should be made.