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.
Page 394 U. S. 12
(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.
Page 394 U. S. 13
(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
Page 394 U. S. 14
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
Page 394 U. S. 15
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
Page 394 U. S. 16
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
Page 394 U. S. 17
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] "
Page 394 U. S. 18
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
Page 394 U. S. 19
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
Page 394 U. S. 20
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
Page 394 U. S. 21
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
Page 394 U. S. 22
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]
Page 394 U. S. 23
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]
Page 394 U. S. 24
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]
Page 394 U. S. 25
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
Page 394 U. S. 26
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]
Page 394 U. S. 27
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
Page 394 U. S. 28
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
Page 394 U. S. 29
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]
Page 394 U. S. 30
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
Page 394 U. S. 31
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
Page 394 U. S. 32
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
Page 394 U. S. 33
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
Page 394 U. S. 34
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
Page 394 U. S. 35
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
Page 394 U. S. 36
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
Page 394 U. S. 37
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
Page 394 U. S. 38
"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
Page 394 U. S. 39
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
Page 394 U. S. 40
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]
Page 394 U. S. 41
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
Page 394 U. S. 42
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,
Page 394 U. S. 43
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]
Page 394 U. S. 44
The draft encountered a serious objection, however, which led to
its further amendment by the International Law Commission. If every
low tide elevation "within
Page 394 U. S. 45
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
Page 394 U. S. 46
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
Page 394 U. S. 47
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]
Page 394 U. S. 48
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,
Page 394 U. S. 49
its area will satisfy the semicircle test only if deemed to
include the waters of the Barataria Bay-Caminada
Page 394 U. S. 50
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
Page 394 U. S. 51
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]
Page 394 U. S. 52
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
Page 394 U. S. 53
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
Page 394 U. S. 54
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
Page 394 U. S. 55
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
Page 394 U. S. 56
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] "
Page 394 U. S. 57
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.
Page 394 U. S. 58
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
Page 394 U. S. 59
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.
Page 394 U. S. 60
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
Page 394 U. S. 61
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
Page 394 U. S. 62
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
Page 394 U. S. 63
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. "
Page 394 U. S. 64
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]
Page 394 U. S. 65
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
Page 394 U. S. 66
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
Page 394 U. S. 67
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
Page 394 U. S. 68
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]
Page 394 U. S. 69
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
Page 394 U. S. 70
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
Page 394 U. S. 71
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]
Page 394 U. S. 72
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
Page 394 U. S. 73
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]
Page 394 U. S. 74
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
Page 394 U. S.
75
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
Page 394 U. S. 76
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
Page 394 U. S. 77
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
Page 394 U. S. 78
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.
[
Footnote 1]
67 Stat. 29, 43 U.S.C. §§ 1301-1315.
[
Footnote 2]
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.
[
Footnote 3]
364 U. S. 502,
364 U. S. 503;
43 U.S.C. § 1301(c).
[
Footnote 4]
364 U.S. at
364 U. S.
504.
[
Footnote 5]
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.
[
Footnote 6]
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.
[
Footnote 7]
[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).
[
Footnote 8]
13 Stat. 58, codified as R.S. § 4233.
[
Footnote 9]
Act of March 3, 1885, 23 Stat. 438.
[
Footnote 10]
23 Stat. 442.
[
Footnote 11]
Act of August 19, 1890, 26 Stat. 320.
[
Footnote 12]
26 Stat. 328.
[
Footnote 13]
The Inland Rules are now codified at 33 U.S.C. §§ 152-232, and
the International Rules at 33 U.S.C. §§ 1051-1094.
[
Footnote 14]
Act of February 19, 1895, 28 Stat. 672.
[
Footnote 15]
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).
[
Footnote 16]
12 Fed.Reg. 8458, 8460 (1947).
[
Footnote 17]
18 Fed.Reg. 7893 (1953)
[
Footnote 18]
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].
[
Footnote 19]
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.
[
Footnote 20]
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).
[
Footnote 21]
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.
[
Footnote 22]
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. . .
."
[
Footnote 23]
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).
[
Footnote 24]
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.).
[
Footnote 25]
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."
[
Footnote 26]
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.
[
Footnote 27]
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.
[
Footnote 28]
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.
[
Footnote 29]
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).
[
Footnote 30]
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.
[
Footnote 31]
Cf. Bouchez,
supra, n 23, at 227, 249; Strohl,
supra, n 23, at 293.
[
Footnote 32]
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.
[
Footnote 33]
18 Fed.Reg. 7893 (1953).
[
Footnote 34]
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).
[
Footnote 35]
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. 426, 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."
[
Footnote 36]
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).
[
Footnote 37]
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.
[
Footnote 38]
Letter from W. R. Castle, Jr., to Charge Lundh, July 13, 1929,
in 1 G. Hackworth, Digest of International Law 645 (1940).
[
Footnote 39]
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.
[
Footnote 40]
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.
[
Footnote 41]
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.
[
Footnote 42]
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.
[
Footnote 43]
[1954] 1 Y.B.Int'l L.Comm'n 88.
[
Footnote 44]
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.
[
Footnote 45]
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."
[
Footnote 46]
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).
[
Footnote 47]
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.
[
Footnote 48]
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.
[
Footnote 49]
See n 24,
supra.
[
Footnote 50]
See supra at
394 U. S.
22.
[
Footnote 51]
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.
[
Footnote 52]
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)
[
Footnote 53]
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).
[
Footnote 54]
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).
[
Footnote 55]
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 situated within 4 sea
miles of permanently dry land,
or of the proper closing line of
Norwegian internal waters, the outer limit of territorial
waters may be 4 sea miles from the outer edge (at low tide) of this
low tide elevation."
[1951] I.C.J., at 120. (Emphasis supplied.) And see the position
of the United Kingdom before the International Law Commission,
n 58,
infra.
[
Footnote 56]
[1954] 1 Y.B.Int'l L.Comm'n 95.
[
Footnote 57]
Report of the International Law Commission Covering the Work of
its Eighth Session, [1956] 2 Y.B.Int'l L.Comm'n 270, U.N.Doc.
A/CN.4/104 (1956).
[
Footnote 58]
The United States argues that its construction of Article 11 is
supported by the failure of the International Law Commission to
adopt a proposal of the United Kingdom to insert after the words
"territorial sea" the phrase "as measured from the low water mark
or from a baseline." Report of the International Law Commission
Covering the Work of its Seventh Session, [1955] 2 Y.B.Int'l
L.Comm'n 58, U.N.Doc. A/CN.4/94 (1955). The preference of the
Commission for the phrase "as measured from the mainland" to the
British terminology, however, is consistent with the view that the
phrases were thought to have the same meaning.
[
Footnote 59]
[1956] 1 Y.B.Int'l L.Comm'n 283.
[
Footnote 60]
See United Nations Conference on the Law of the Sea,
supra, n 42, at
187, 243.
[
Footnote 61]
The United States argues that the meaning of its proposal must
have been clear to all, since only three days earlier it had
submitted a proposed amendment to another article, introducing the
word "mainland" for the express purpose of excluding water
crossings from its scope.
See id. at 236. But, at the time
of the United States proposal, the word "mainland" already appeared
in the Conference draft of Article 11 in a context which made clear
that measurement of the territorial sea from bay-closing lines was
not excluded. Moreover, if the United States had, in fact, intended
its amendment to Article 11 to exclude water crossings, it seems
likely that the United States would have spelled out that intention
as it had done with respect to the proposal to amend the other
article three days before.
[
Footnote 62]
United Nations Conference on the Law of the Sea,
supra,
n 42, at 186-187. The expert
was Mr. Francois, who had been the Special Rapporteur of the
International Law Commission for the drafting of the
Convention.
[
Footnote 63]
This conclusion coincides with the views of authorities who have
dealt with the subject. Thus, Sir Gerald Fitzmaurice, who was a
member of the International Law Commission and the deputy leader of
the United Kingdom's delegation to the 1958 Geneva Conference,
gives this explanation of Article 11:
"The Convention (Article 11, paragraph 1) permits one exception
which has come to be recognised as reasonable, namely, that, where
a low tide elevation is situated within what is
already
territorial sea (off a mainland coast, or off the coast of an
island permanently above sea level), it can then generate some (as
it were) extraterritorial sea. In such a case, the low tide
elevation theoretically has its own territorial sea; but, as the
elevation is within what is already the territorial sea of the
mainland, or of an island, the practical effect is simply to cause
a bulge in the seaward direction of
that territorial sea.
On the other hand, if there is a further drying rock, situated --
not within the original or basic territorial sea of the mainland or
island -- but within the extension of such territorial sea (bulge)
caused by the presence of the 'inner' drying rock, then this
'outer' drying rock will not lead to any further extensions of the
territorial sea; nor does an 'outer' drying rock, so situated,
generate any territorial sea of its own. This rule is intended to
prevent the practice known as 'leap-frogging,' which, by making use
of a series of drying rocks, banks, etc., extending seawards, might
result in artificial or unjustified extensions of natural
territorial waters."
Fitzmaurice, Some Results of the Geneva Conference on the Law of
the Sea, 8 Int'l & Comp.L.Q. 73, 86-87 (1959).
And see
McDougal Burke,
supra, n. 26, at 396; 1 Shalowitz,
supra, n 7, at
228.
[
Footnote 64]
The United States argues -- in addition to its contention that
it does not meet the semicircle test -- that "Ascension Bay" is not
a true bay, because it is a "mere curvature of the coast", rather
than a "well-marked indentation" containing "landlocked waters." If
this contention is accepted, then it is, of course, irrelevant that
"Ascension Bay" meets the semicircle test.
See infra at
394 U. S. 54.
Whether an indentation qualifies as a bay under the criteria of
Article 7 other than the semicircle test is a factual question
which should be submitted to the Special Master in the first
instance.
If "Ascension Bay" does qualify under Article 7, on the other
hand, it is an oversize bay, for the closing line across its mouth
exceeds 24 miles.
See n 68,
infra. The procedure to be followed in
such event is spelled out in Article 7(5):
"Where the distance between the low water marks of the natural
entrance points of a bay exceeds twenty-four miles, a straight
baseline of twenty-four miles shall be drawn within the bay in such
a manner as to enclose the maximum area of water that is possible
with a line of that length."
The straight 24-mile line selected by Louisiana runs from
Caminada Pass to Empire Canal, just east of Bastian Bay, and we can
see no valid objection to that line. The United States argues that
Article 7(5) permits the drawing inside an oversize bay of only one
24-mile closing line (or perhaps several lines totaling 24 miles).
Yet Louisiana has, in addition to drawing the 24-mile line from
Caminada Pass to Empire Canal, also drawn closing lines across
other indentations within "Ascension Bay," such as West Bay, which
qualify independently as inland waters. The United States' position
is that the tributary bays cannot be taken into account in
computing the area of the larger indentation for purposes of the
semicircle test but then disregarded in measuring the parts of the
bay to be enclosed by the 24-mile line. We find nothing in the
Convention or its history to support this contention. Article 7(5)
mandates that a straight 24-mile baseline shall be drawn within an
oversize bay so as to include the greatest area of water. It does
not follow from the fact that this
additional method of
delimiting inland waters in an oversize bay is available, that
smaller bays within the oversize bay but outside the straight
24-mile baseline lose their status as inland waters.
If it is determined that "Ascension Bay" does not qualify as a
"well-marked indentation" containing "landlocked waters," and that
a straight baseline therefore cannot be drawn within it from
Caminada Pass to Empire Canal, the question will be presented
whether the beach erosion jetties on Grande Isle are part of the
coast within Article 8 of the Convention.
See supra at
394 U. S. 36. We
hold that they are. The United States argues that Article 8 is
limited to structures which are "integral parts of the harbor
system" and that there is no harbor between Grande Isle and the
jetties. While some early discussion of the subject by the
International Law Commission tends to support the United States'
position that these jetties are not encompassed by Article 8,
see [1954] 1 Y.B.Int'l L.Comm'n 88, the Commentary to the
final International Law Commission draft of Article 8 (which was
identical to its present form) expressly covers artificial
structures which are not closely linked to ports:
"(2) Permanent structures erected on the coast and jutting out
to sea (such as jetties and
coast protective works) are
assimilated to harbour works."
[1956] 2 Y.B.Int'l L.Comm'n 270. (Emphasis supplied.) Moreover,
it should be noted that the beach erosion jetties are in a real
sense "harbour works," for they were designed to protect Grande
Isle, which in turn shelters the harbor waters of Caminada Bay and
Bay des Ilettes.
[
Footnote 65]
The problem may also arise in West Bay, where the parties
disagree as to the proper closing line. In particular, the United
States objects to Louisiana's choice of the tip of the jetty at
Southwest Pass as the southern headland. If that point is selected,
the United States argues, the bay cannot satisfy the semicircle
test unless areas such as Bob Taylor's Pond, Zinzing Bay, or
Riverside Bay are included in its area, and those areas are "too
definitely separated from West Bay to be considered a part of it."
The proper location of headlands is, of course, another factual
determination which we leave to the initial scrutiny of the
Master.
[
Footnote 66]
"[T]he water of bays within bays may be included as water
surface of the outer bay in determining the dimensions of any
coastal indentation." Sovereignty of the Sea, United States State
Department Geographic Bulletin No. 3, p. 11 (1965).
See
also 1 Shalowitz,
supra, n 7, at 219:
"In the application of the semicircular rule to an indentation
containing pockets, coves, or tributary waterways, the area of the
whole indentation (including pockets, coves, etc.) is compared with
the area of a semicircle."
[
Footnote 67]
Shalowitz,
supra, n
7, at 220, n. 28, contains the following suggestions:
"One difficulty that arises in including tributary waterways as
part of the area of the indentation whose status is to be
determined is that the status may depend upon how far up the
tributary one goes in computing the area. This may require the
adoption of an additional rule limiting the width of such waterways
to a fixed amount beyond which it would not be considered a part of
the primary waterway. An alternative solution would be to first
apply the semicircle test to the tributary waterways: if they
become inland waters, a closing line is drawn across them and the
primary waterway is then subjected to the test; if they do not
become inland waters, they would then be included as part of the
area of the main indentation for the purpose of determining its
status by the semicircular rule."
See also Shalowitz, Boundary Problems Raised by the
Submerged Lands Act, 54 Col.L.Rev. 1021, 1033, n. 33 (1954).
And see Bouchez,
supra, n 23, at 21, emphasizing the need to distinguish
between bays and inland seas.
[
Footnote 68]
Article 7(4) reads as follows:
"If the distance between the low water marks of the natural
entrance points of a bay does not exceed twenty-four miles, a
closing line may be drawn between these two low water marks, and
the waters enclosed thereby shall be considered as internal
waters."
[
Footnote 69]
See n 79,
infra.
[
Footnote 70]
The United States does not agree with Shalowitz' alternative
suggestion that, in determining the area of a large indentation,
the areas of all qualifying bays within it should be excluded.
See supra at
394 U. S. 51 and
n. 67.
[
Footnote 71]
We think the same result follows in West Bay, where the areas
which the United States seeks to exclude from the bay are set off
only by strings of islands.
See n 65,
supra. Accordingly, should the closing
line urged by Louisiana be accepted, it will not be defeated by the
semicircle test.
[
Footnote 72]
Louisiana contends that the entire area of East Bay is a
historic bay.
See infra at
394 U. S. 74. If
that position is accepted, of course, none of the geographic tests
of Article 7 will be applicable, for Article 7 provides that "[t]he
foregoing provisions shall not apply to so-called
historic'
bays. . . ."
[
Footnote 73]
See n 64,
supra.
[
Footnote 74]
The 24-mile limitation, for instance, is applied to the
aggregate lengths of the closing lines.
See 1 Shalowitz,
supra, n 7, at 221.
See also the following Commentary of the International Law
Commission:
"If, as a result of the presence of islands, an indentation
whose features as a 'bay' have to be established has more than one
mouth, the total length of the lines drawn across all the different
mouths will be regarded as the width of the bay."
[1956] 2 Y.B.Int'l L.Comm'n 269.
[
Footnote 75]
The extent to which this problem is presented by this case
depends upon the exact location of the line between the entrance
points on the mainland. The United States and Louisiana disagree as
to the location of the headlands on the mainland, the United States
having selected points considerably inland of those chosen by
Louisiana. Since even the straight line between the mainland
headlands urged by the United States is not entirely landward of
what it considers the mouths between the islands, we do not
postpone consideration of Louisiana's contention to a determination
of the natural entrance points on the mainland.
[
Footnote 76]
[1956] 2 Y.B.Int'l L.Comm'n 269.
[
Footnote 77]
The direct, mainland-to-mainland line proposed by Louisiana
across the Lake Pelto-Terrebonne Bay-Timbalier Bay indentation
would meet the 24-mile test, but it appears that the line drawn by
the United States would not. The exact length of the United States
line need not be determined, however, because we hold that, for the
purpose of the question at issue, there is no distinction between
indentations which would qualify as bays without the presence of
islands and those which would not.
See next paragraph.
Nothing in the language or the history of Article 7(3) limits its
application to those indentations which would not be bays except
for the presence of islands. If the islands intersected by a direct
line between the mainland headlands actually create multiple
mouths, the selection of closing lines across those mouths is not
optional.
[
Footnote 78]
Shalowitz agrees that the purpose of Article 7(3) supports a
policy in favor of enclosing the maximum area of inland water.
See 1 Shalowitz,
supra, n 7, at 225, n. 38. However, the context of his remarks
is quite different from the present one. He there suggests that a
policy in favor of enclosing the greatest area would support
drawing lines out to islands wholly seaward of a direct line
between the entrance points on the mainland, but not drawing lines
inward to islands wholly within such a direct closing line.
Elsewhere, Shalowitz appears to agree that, if lines are drawn to
and between the islands, they should be across the natural entrance
points, even if those natural entrance points are landward of a
straight mainland-to-mainland line.
See id. at 221, fig.
40.
See also Pearcy, Measurement of the U.S. Territorial
Sea, 40 Dept.State Bull. 963, 966, fig. 4 (1959).
[
Footnote 79]
Since this issue is not presented by the insular configurations
at the Lake Pelto-Terrebonne Bay-Timbalier Bay complex, we express
no opinion on it. However, we note that the issue may arise in
relation to the Caminada Bay-Barataria Bay indentation. Despite our
holding that "Ascension Bay," of which Caminada and Barataria Bays
are a part, does satisfy the semicircle test,
supra, at
394 U. S. 52-53,
it will be open to the United States to argue before the Master
that "Ascension Bay" does not otherwise qualify as a bay under
Article 7(2) of the Convention on the Territorial Sea and the
Contiguous Zone. A holding that "Ascension Bay" is not a true bay
would preclude the drawing of a straight 24-mile baseline from
Caminada Pass to Empire Canal,
see n 64,
supra, and would call into
question the proper closing lines across the Caminada Bay-Barataria
Bay indentation. In its reply brief, Louisiana for the first time
contested the United States' proposal to draw baselines along the
low water marks on the fringe of islands across that indentation.
Louisiana asserts that a straight closing line can be drawn between
the appropriate entrances on the mainland which is entirely seaward
of all the islands on which the United States has drawn
baselines.
Although the question whether lines should be drawn inward to
islands which are not intersected by a direct mainland-to-mainland
closing line is one of construction of the Convention, rather than
of fact, for several reasons, we have decided to leave its
resolution to the Special Master in the first instance. The issue
may not arise at all if it is determined either that "Ascension
Bay" is a true bay or that a direct line between the proper
mainland headlands does intersect the islands. Moreover, the issue
is a close one, yet one on which we have not had the benefit of
concerted advocacy on both sides. On the one hand, the
considerations which led us to reject Louisiana's contention with
respect to islands intersected by a straight mainland-to-mainland
closing line appear to militate in favor of drawing lines inward to
islands which seemingly create distinct mouths to the indentation.
This view is supported by the fact that Article 7(3) contains no
requirement that the islands be intersected by a
mainland-to-mainland closing line; rather, it speaks only of
multiple mouths "because of the presence of islands." On the other
hand, Article 7(3) does provide that islands wholly "within" the
indentation shall be treated as part of the water areas. Because
the issue is a difficult one of first impression and few
illuminating materials have been brought to our attention, we feel
that our resolution of the question, if necessary, would be greatly
aided by its prior submission to a neutral referee.
[
Footnote 80]
The question arises with respect to low tide elevations as well
as islands. We think that, in this context, there can be no
distinction between them. Article 7(4) provides that the
bay-closing line shall be drawn "between
the low water
marks of the natural entrance points." (Emphasis supplied.)
The line is to be drawn at low tide, and, therefore, if a natural
entrance point can be on an area of land surrounded by water, it
can be on a low tide elevation as well as an island.
The United States observes that under Article 4,
see
n 89,
infra
straight baselines
"shall not be drawn to and from low tide elevations unless
lighthouses or similar installations which are permanently above
sea level have been built on them."
A fortiori, the United States argues, bay-closing lines
cannot be drawn to such low tide elevations. The argument overlooks
the different policy considerations underlying Articles 4 and 7.
Straight baselines can be drawn to islands under Article 4 only if
they enclose areas "sufficiently closely linked to the land domain
to be subject to the regime of internal waters." Low tide
elevations obviously do not so closely tie the enclosed waters to
the land, and if they could be used for straight baselines,
"the distance between the baselines and the coast might be
extended more than is required to fulfil the purpose for which the
straight baseline method is applied."
International Law Commission Commentary on its final draft,
[1956] 2 Y.B.Int'l L.Comm'n 268. A further reason given by the
International Law Commission for the prohibition against drawing
straight baselines to low tide elevations is that "it would not be
possible at high tide to sight the points of departure of the
baselines."
Ibid. The need to identify headlands on the
coast at high tide is not so great as it is in respect of
basepoints in the sea, and for that reason the convention measures
bay-closing lines from the low water mark.
[
Footnote 81]
Compare the position of the United States that the low
water perimeter of indentations should be broken by water-crossing
lines closing off distinct smaller indentations within the larger
bay,
supra at
394 U. S.
51.
[
Footnote 82]
Most of the references by 19th and early 20th century
authorities to the connection between islands and bays foreshadowed
the modern concept -- embodied in Article 7(3) of the Convention --
of islands creating multiple mouths to bays and tying the waters of
the indentation more closely to the mainland.
See, e.g.,
Calvo, excerpted in Crocker,
supra, n 29, at 29; Piedelievre, Precis de Droit
International Public ou Droit des Gens (1894), in Crocker, at 389;
Testa, Le Droit Public International Maritime (1886), in Crocker,
at 448. Some authors, relying principally on an 1839 Franco-English
convention regulating fisheries in the English Channel, stated that
bay-closing lines should be drawn between the "extreme points of
the mainland and sand banks." Latour, excerpted in Crocker,
supra, n 29, at
257.
See also Perels,
id., at 357-358. In view of
the contrast drawn between "mainland" and "sand banks," it may be
that this formulation contemplated the drawing of closing lines to
pieces of land closely related to the mainland but entirely
surrounded by water, as sand banks often are.
[
Footnote 83]
The United States argues that, since the Convention in Article
7(3) specifically recognizes that islands may create multiple
mouths to bays, it cannot be construed to permit islands to create
the bays themselves. Alternatively, the Government argues that, if
a closing line can be drawn from one side of a bay to an island as
the headland on the other side, then it must be continued from the
island to the nearest point on the mainland, and the distance to
the mainland must be added to that across the bay in determining
whether the 24-mile test is satisfied. These arguments, however,
misconstrue the theory by which the headland is permitted to be
located on the island -- that the island is so closely aligned with
the mainland as realistically to be considered an integral part of
it. Thus viewed, there is no "mouth" between the island and the
mainland.
[
Footnote 84]
In the case of
The "Anna," 165 Eng.Rep. 809 (1805), the
British High Court of Admiralty was called upon to determine a
claim that an American ship seized by a privateer off the
Mississippi River Delta had been wrongfully taken in American
territorial waters. In holding for the claimant, the court
wrote:
"The capture was made, it seems, at the mouth of the River
Mississippi, and, as it is contended in the claim, within the
boundaries of the United States. We all know that the rule of law
on this subject is '
terrae dominium finitur, ubi finitur
armorum vis,' and, since the introduction of firearms, that
distance has usually been recognised to be about three miles from
the shore. But it so happens in this case that a question arises as
to what is to be deemed the shore, since there are a number of
little mud islands composed of earth and trees drifted down by the
river, which form a kind of portico to the mainland. It is
contended that these are not to be considered as any part of the
territory of America, that they are a sort of 'no man's land,' not
of consistency enough to support the purposes of life, uninhabited,
and resorted to, only, for shooting and taking birds' nests. It is
argued that the line of territory is to be taken only from the
Balise, which is a fort raised on made land by the former Spanish
possessors. I am of a different opinion; I think that the
protection of territory is to be reckoned from these islands, and
that they are the natural appendages of the coast on which they
border, and from which indeed they are formed. Their elements are
derived immediately from the territory, and on the principle of
alluvium and increment, on which so much is to be found in the
books of law. . . ."
Id. at 814-815.
The United States argues that the decision is not in point,
because it had nothing to do with the delimitation of bays, and
merely held, as Article 10 of the Convention now provides,
see n 94,
infra that the three-mile belt is to be measured from
islands in the same way as from the mainland. But if the court had
been of the view that the three-mile belt extended from islands as
well as the mainland, it would not have had to decide that the mud
islands were "deemed the shore." And the opinion in
The
"Anna" gave rise to several categorical statements by 19th
century authorities that
"[t]he term 'coasts' includes the natural appendages of the
territory which rise out of the water, although these islands are
not of sufficient firmness to be inhabited or fortified. . . ."
H. Wheaton, Elements of International Law 256 (8th ed. 1866).
See also Halleck, International Law (4th ed.1908), in
Crocker,
supra, n
29, at 890. And it is ancient lore that islands created by
sedimentation at river entrances are peculiarly integrated with the
mainland itself:
"The islands situated at the mouth of a river are embraced as
part of the territory, even when they are not occupied. They are
considered as forming the beginning of the government of the
country, because the elements of which they are composed have
become detached from the soil itself. It is from their coast that
the littoral sea commences."
Nys, Le Droit International (1904), in Crocker, at 321.
Our discussion of these authorities should not be taken as
suggesting that, under the now controlling Convention on the
Territorial Sea and the Contiguous Zone, every Mississippi River
Delta mudlump or other insular formation is a part of the coast. We
do believe, however, that the origin of the islands and their
resultant connection with the shore is one consideration relevant
to the determination of whether they are so closely tied to the
mainland as realistically to be considered a part of it.
[
Footnote 85]
"Obviously, some islands must be treated as if they were part of
the mainland. The size of the island, however, cannot, in itself,
serve as a criterion, as it must be considered in relationship to
its shape, orientation and distance from the mainland."
Boggs, Delimitation of Seaward Areas under National
Jurisdiction, 45 Am.J.Int'l L. 240, 258 (1951).
"Islands close to the shore may create some unique problems.
They may be near, separated from the mainland by so little water
that, for all practical purposes, the coast of the island is
identified as that of the mainland."
Pearcy, Geographical Aspects of the Law of the Sea, 49 Annals of
Assn. of American Geographers No. l, p. 1, at 9 (1959). The
Director of the Coast and Geodetic Survey, Department of Commerce,
has stated the following rule for the assimilation of islands to
the mainland:
"The coast line should not depart from the mainland to embrace
offshore islands except where such islands either form a portico to
the mainland and are so situated that the waters between them and
the mainland are sufficiently enclosed to constitute inland waters,
or they form an internal part of a land form."
Memorandum of April 18, 1961, excerpted in 1 Shalowitz,
supra, n 7, at 161, n.
125. (Emphasis supplied.) Shalowitz has recognized that,
"[w]ith regard to determining which islands are part of a land
form and which are not, no precise standard is possible. Each case
must be individually considered within the framework of the
principal rule."
Id. at 162.
And see Strohl,
supra,
n 23, at 76, fig. 18.
[
Footnote 86]
This enumeration is intended to be illustrative, rather than
exhaustive.
[
Footnote 87]
One such place is Caillou Bay, the body of water between the
mainland and the westernmost of the string of islands known as the
Isles Dernieres. Another is the large area consisting of Chandeleur
Sound and Breton Sound between the northeastern shores of the
Mississippi River Delta and the Chandeleur Islands chain. This
latter area is not in dispute, for the United States, while
asserting that the sounds are not necessarily inland waters under
the Convention, has conceded that they belong to Louisiana. That
concession was made at an early stage of this litigation,
see n 97,
infra and the United States has decided not to withdraw it
despite the subsequent ratification of the Convention. Louisiana
further contends that some of the Chandeleur Islands form part of
the perimeter of a bay -- which it calls "Isle au Breton Bay" --
enclosing inland waters between their southern edges and the North
and Main Passes of the Mississippi River Delta. The United States
objects to this use of the island fringe.
[
Footnote 88]
Louisiana does not contend that any of the islands in question
is so closely aligned with the mainland as to be deemed a part of
it, and we agree that none of the islands would fit that
description.
[
Footnote 89]
"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."
"2. The drawing of such baselines must not depart to any
appreciable extent from the general direction of the coast, and the
sea areas lying within the lines must be sufficiently closely
linked to the land domain to be subject to the regime of internal
waters."
"3. Baselines shall not be drawn to and from low tide
elevations, unless lighthouses or similar installations which are
permanently above sea level have been built on them."
"4. Where the method of straight baselines is applicable under
the provisions of paragraph 1, account may be taken, in determining
particular baselines, of economic interests peculiar to the region
concerned, the reality and the importance of which are clearly
evidenced by a long usage."
"5. The system of straight baselines may not be applied by a
State in such a manner as to cut off from the high seas the
territorial sea of another State."
"6. The coastal State must clearly indicate straight baselines
on charts, to which due publicity must be given."
[
Footnote 90]
Although international accord on the concept of straight
baselines along island chains is a fairly recent development, there
are some earlier statements of the principle.
See, e.g.,
Raestad, La Mer Territoriale (1913), excerpted in Crocker,
supra, n 29, at
407.
See generally McDougal & Burke,
supra,
n 26, at 314-316.
[
Footnote 91]
See the discussion of the International Law Commission
at [1954] 1 Y.B.Int'l L.Comm'n 66; [1955] 1 Y.B.Int'l L.Comm'n 197,
218, 252; [1955] 2 Y.B.Int'l L.Comm'n 37; [1956] 1 Y.B.Int'l
L.Comm'n 185, 194-195, and of the 1958 Geneva Conference in United
Nations Conference on the Law of the Sea,
supra, n 42, at 43-44, 60, 141, 156,
162-163. A thorough review of the practice of nations and
international studies of the problem is found at 4 M. Whiteman,
Digest of International Law 274-303.
[
Footnote 92]
The 1930 Hague Convention, for example, was unable to recommend
a specific provision:
"With regard to a group of islands (archipelago) and islands
situated along the coast, the majority of the Sub-Committee was of
opinion that a distance of ten miles should be adopted as a basis
for measuring the territorial sea outward in the direction of the
high sea. Owing to the lack of technical details, however, the idea
of drafting a definite text on this subject had to be
abandoned."
Acts of the Conference for the Codification of International
Law,
supra, n 29,
at 219.
See also Fitzmaurice,
supra, n 63, at 88-90; McDougal &
Burke,
supra, n 26,
at 377-386.
[
Footnote 93]
The history of the subject is summarized in the Reference Guide
to the Articles Concerning the Law of the Sea Adopted by the
International Law Commission at its Eighth Session, U.N.Doc.
A/C.6/L.378, p. 45, n. 1 (1956), as follows:
"In his first report . . . , the special rapporteur proposed an
article entitled 'Groups of Islands.' This was article 10, which
read as follows: "
" With regard to a group of islands (archipelago) and islands
situated along the coast, the ten-mile line shall be adopted as the
base line for measuring the territorial sea in the direction of the
high sea. The waters included within the group shall constitute
inland waters."
"He explained, however, that he had inserted this text 'not as
expressing the law at present in force, but as a basis of
discussion should the Commission wish to study a text envisaging
the progressive development of international law on this subject.'
He referred to a passage in the Judgment of the International Court
of Justice in the
Fisheries case, where the Court had said
. . . : "
" In this connection, the practice of States does not justify
the formulation of any general rule of law. The attempts that have
been made to subject groups of islands or coastal archipelagoes to
conditions analogous to the limitations concerning bays (distance
between the islands not exceeding twice the breadth of the
territorial waters, or ten or twelve sea miles), have not got
beyond the stage of proposals."
"In his second report . . . , the special rapporteur suggested
as article 10 an abbreviated version of his earlier proposal, which
now simply read as follows: "
" With regard to a group of islands (archipelago) and islands
situated along the coast, the ten mile line shall be adopted as the
baseline."
"After consulting the Committee of Experts, the special
rapporteur put forward a more elaborate proposal . . . , and yet a
further proposal in his third report. . . ."
"The latter proposal read as follows: "
" 1. The term 'group of islands,' in the juridical sense, shall
be deemed to mean three or more islands enclosing a portion of the
sea when joined by straight lines not exceeding five miles in
length, except that one such line may extend to a maximum of ten
miles."
" 2. The straight lines specified in the preceding paragraph
shall be the base lines for measuring the territorial sea; waters
lying within the area bounded by such base lines and the islands
themselves shall be considered as inland waters."
" 3. A group of islands may likewise be formed by a string of
islands taken together with a portion of the mainland coastline.
The rules set forth in paragraphs 1 and 2 of this article shall
apply
pari passu."
"The Commission, however, after postponing the question in 1954,
decided in 1955 that article 5, which dealt with 'straight
baselines,' might be applicable to groups of islands situated off
the coasts, while the general rules would normally apply to other
islands forming a group. This position was confirmed in 1956,
the Commission adding that it was prevented from stating an opinion
on this subject not only by disagreement on the breadth of the
territorial sea, but also by lack of technical information. The
Commission hoped, however, that, if an international conference
were subsequently to study the proposed rules, it would give
attention to this problem, which the Commission recognized to be an
important one."
(Emphasis supplied.) While the 1958 Geneva Conference gave the
problem its attention, it was prevented by the same reasons from
formulating an article dealing with groups and fringes of islands
other than Article 4.
[
Footnote 94]
Islands are normally covered by Article 10:
"1. An island is a naturally formed area of land, surrounded by
water, which is above water at high-tide."
"2. The territorial sea of an island is measured in accordance
with the provisions of these articles."
[
Footnote 95]
This conclusion is shared by Shalowitz.
See 1
Shalowitz,
supra, n
7, at 227 and n. 44. Strohl posits that "a fringe of islands can
make up one side of a bay," Strohl,
supra, n 23, at 72, but recognizes that the only
provision of the Convention which would authorize such a baseline
is Article 4.
Id. at 60. This conclusion is not undermined
by occasional references to an insular formation as creating a
"bay."
See, e.g., [1955] 1 Y.B.Int'l L.Comm'n 211,
Bouchez,
supra, n
23, at 233 (both referring to Long Island Sound);
Manchester v.
Massachusetts, 139 U. S. 240
(referring to Buzzard's Bay). Only one authority appears to assume,
without discussion, that a bay formed by islands would be governed
by the provisions of Article 7. Pearcy,
supra, n 78, at 965. (The area in question
was that between the coast of Florida and the chain of Keys curving
to the south and east. The United States points out that they are
linked by a permanent highway, and therefore may be considered as
part of the mainland.)
[
Footnote 96]
In the same vein, we held that the choice whether to employ the
concept of a "fictitious bay" was that of the Federal Government
alone. 381 U.S. at
381 U. S. 172.
That holding was, of course, consistent with the conclusion that
the drawing of straight baselines is left to the Federal
Government, for a "fictitious bay" is merely the configuration
which results from drawing straight baselines from the mainland to
a string of islands along the coast.
See 381 U.S. at
381 U. S. 170,
n. 38.
[
Footnote 97]
Louisiana further contends that the United States is estopped
from denying the "inland water" status of such areas by its
concession in earlier stages of this litigation that the areas
between the mainland and all the offshore islands were inland
waters. We took note of this concession in
United States v.
Louisiana, 363 U. S. 1,
363 U. S. 67, n.
108:
"The Government concedes that all the islands which are within
three leagues of Louisiana's shore, and therefore belong to it
under the terms of its Act of Admission, happen to be so situated
that the waters between them and the mainland are sufficiently
enclosed to constitute inland waters. Thus, Louisiana is entitled
to the lands beneath those waters quite apart from the affirmative
grant of the Submerged Lands Act, under the rule of
Pollard's Lessee v. Hagan, 3
How. 212. Furthermore, since the islands enclose inland waters, a
line drawn around those islands and the intervening waters would
constitute the 'coast' of Louisiana within the definition of the
Submerged Lands Act. Since that Act confirms to all States rights
in submerged lands three miles from their coasts, the Government
concedes that Louisiana would be entitled not only to the inland
waters enclosed by the islands, but to an additional three miles
beyond those islands as well.
We do not intend, however, in
passing on these motions, to settle the location of the coastline
of Louisiana, or that of any other State."
(Emphasis supplied.)
As we stressed in that case, this Court has placed no imprimatur
on that position. Nor do we think the United States is bound by it.
Louisiana has not relied to its detriment on the concession, which
appears to have been made primarily for purposes of reaching
agreement on the leasing of the submerged lands pending a final
ruling on their ownership. The Interim Agreement of 1956
specifically recognized that neither party would be bound by its
positions:
"The submerged lands in the Gulf of Mexico are divided for the
purposes hereof into four zones as shown on the plat annexed hereto
as Exhibit 'A,' which reflects as a baseline the so-called 'Chapman
Line.' No inference or conclusion of fact or law from the said use
of the so-called 'Chapman-Line' or any other boundary of said zones
is to be drawn to the benefit or prejudice of any party hereto. . .
."
Moreover, we note that the concession did not include as inland
waters the area Louisiana designates as "Isle au Breton Bay."
See n 87,
supra.
It might be argued that the United States' concession reflected
its firm and continuing international policy to enclose inland
waters within island fringes. It is not contended at this time,
however, that the United States has taken that posture in its
international relations to such an extent that it could be said to
have, in effect, utilized the straight baseline approach sanctioned
by Article 4 of the Convention. If that had been the consistent
official international stance of the Government, it arguably could
not abandon that stance solely to gain advantage in a lawsuit to
the detriment of Louisiana.
Cf. United States v.
California, 381 U. S. 139,
381 U. S.
168:
"[A] contraction of a State's recognized territory imposed by
the Federal Government in the name of foreign policy would be
highly questionable."
We do not intend to preclude Louisiana from arguing before the
Special Master that, until this stage of the lawsuit, the United
States had actually drawn its international boundaries in
accordance with the principles and methods embodied in Article 4 of
the Convention on the Territorial Sea and the Contiguous Zone.
[
Footnote 98]
See n 72,
supra.
[
Footnote 99]
Louisiana also suggests that the indentations between the passes
of the Mississippi River Delta are part of the river mouth, and
therefore inland waters under Article 13 of the Convention:
"If a river flows directly into the sea, the baseline shall be a
straight line across the mouth of the river between points on the
low-tide line of its banks."
The Article obviously does not encompass indentations between
arms of land formed by the river but not containing it.
[
Footnote 100]
The United States argues that the Convention recognizes only
historic bays, and not other kinds of inland water bodies. We do
not pass on this contention except to note that, by the terms of
the Convention, historic bays need not conform to the normal
geographic tests, and therefore need not be true bays. How unlike a
true bay a body of water can be and still qualify as a historic bay
we need not decide, for all of the areas of the Mississippi River
Delta which Louisiana claims to be historic inland waters are
indentations sufficiently resembling bays that they would clearly
qualify under Article 7(6) if historic title can be proved.
[
Footnote 101]
See supra at
394 U. S.
24.
[
Footnote 102]
See n 27,
supra.
[
Footnote 103]
In this, the United States appears to be correct. While the
unauthorized activities of private citizens could generally not
support a claim of historic title,
see Juridical Regime of
Historic Water, Including Historic Bays,
supra, n 27, at 14-15; Bouchez,
supra, n 23, at
238; Strohl,
supra, n 23, at 303-304, the action of of local governments, if
not repudiated by or inimical to the interests of the national
sovereign, are assertions of dominion as against other nations. And
claims to historic title have been based in part on such actions.
See the opinion of the Court of Commissioners of Alabama
Claims in
Stetson v. The United States, quoted in 4 J.
Moore, International Arbitrations 4332, 4339 (1898); Opinion of
Attorney General Randolph on the seizure of the ship "Grange" in
Delaware Bay, Op.Atty.Gen. 32 (1793).
See generally
McDougal & Burke,
supra, n 26, at 360-361.
[
Footnote 104]
It is one thing to say that the United States should not be
required to take the novel, affirmative step of adding to its
territory by drawing straight baselines. It would be quite another
to allow the United States to prevent recognition of a historic
title which may already have ripened because of
past
events but which is called into question for the first time in a
domestic lawsuit. The latter, we believe, would approach an
impermissible contraction of territory against which we cautioned
in
United States v. California. See n 9,
supra.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
dissenting.
We must decide in this case the meaning of the term "inland
waters," as used in the Submerged Lands Act of 1953. [
Footnote 2/1] Although the value of all the
submerged lands probably could be stated only in astronomical
figures, this dispute is a minor one involving only a comparatively
small segment of land adjacent to Louisiana. [
Footnote 2/2] The Court chooses as the proper meaning
the complex
Page 394 U. S. 79
series of definitions incorporated in the Convention on the
Territorial Sea and the Contiguous Zone, an international treaty
approved by the President and ratified by the Senate. [
Footnote 2/3] In making this choice, the
Court relies on the recent decision by a divided Court that this
standard should be used in determining the boundaries of
California's "inland waters" along the California coast.
United
States v. California, 381 U. S. 139
(1965) (generally referred to as the second
California
case). I cannot agree to application of the same standard to
Louisiana, where coastal conditions are wholly different [
Footnote 2/4] and where the Convention
standard, which the Court thought would provide some certainty and
stability for California, can only cause chaos and confusion. Nor
can I find any justification for applying the Convention standard
applied in the second
California case to Louisiana, a
State that was not a party to the West Coast litigation but urges
us to adopt a different standard, one especially convenient for
application to Louisiana's own unusual coast, and one never even
considered in the West Coast litigation. [
Footnote 2/5] Under these circumstances, I must
dissent.
Page 394 U. S. 80
I would hold that "inland waters" should be measured in
Louisiana, and in any other State with similar coastal
characteristics, by the standard urged by Louisiana -- the Coast
Guard line established years ago, under the authority of an 1895
Act of Congress, to mark off the boundaries of the States' "inland
waters." Such a holding would put an end to a useless, unnecessary
litigation, over an issue that can well be characterized as
de
minimis so far as the practical effect to the United States is
concerned.
I
In 1947, this Court decided that no one of the States bordering
on the Atlantic or Pacific Ocean or on the Gulf of Mexico owned any
part of the land submerged under the waters lying adjacent to its
shores. [
Footnote 2/6] In 1953,
Congress, in the Submerged Lands Act, "restored" to the States what
it thought our holding had wrongfully taken away from them. What
the Act did was, in effect, to quitclaim to each coastal State
submerged land extending three geographic miles seaward from the
State's coastline, except that, under certain circumstances, States
bordering on the Gulf of Mexico were entitled to a maximum of not
more than three leagues (roughly nine geographic miles) from the
coastline. Under the Act, submerged land of the Continental Shelf
more than three miles or three leagues beyond the coastline is
property of the United States. The Act defined "coast line" in §
2(c) as
"the line of ordinary low water along that portion of the coast
which is in direct contact with the
Page 394 U. S. 81
open sea and the line marking the seaward limit of inland
waters."
This definition of "coast line" is, of course, not clear enough,
in itself, for one to go out and look around the waters and fix the
boundary line between submerged lands belonging to the Federal
Government and those belonging to the States, particularly since
the crucial term "inland waters" is not defined in the Act at all.
There appears to be one thing certain about the problem, however,
and that is that the dispute between Louisiana and the United
States is no part of international affairs subject to international
law, but is exclusively a domestic controversy between the State
and Nation. The United States, nevertheless, contends that, in
determining this purely domestic dispute, the Act's words must be
given their content in international law, and the controlling
principles must be found in the international Convention. The
United States places its chief reliance for this contention on the
second
California case. In that case, some questions arose
about whether certain segments of the California coastline,
particularly with reference to bays, inlets, sounds, indentations,
and islands, were within California's inland waters. There, the
Court did not pass on the applicability of the 1895 Act of
Congress, [
Footnote 2/7] and
seeking a satisfactory way to
Page 394 U. S. 82
determine some of the perplexing problems about treatment of
bays, etc., as inland waters, a divided Court concluded to resort
to the treaty mentioned. The majority believed reliance on the
treaty was dictated by the need
Page 394 U. S. 83
to adopt "the best and most workable definitions available," 381
U.S. at
381 U. S. 165,
thus, as it was believed, adding stability to the operation of the
Act and carrying out a purpose of the Act's proponents to give
security of title to the State and its oil lessees.
But if that turns out to be the result of using the treaty
definitions in the second
California case, it will
certainly not be the result here, for there are crucial differences
between the two coasts. California waters are, in the main, deep,
and often are navigable very close to shore. There are few
indentations along that State's coast, and most of these are smooth
or relatively regular in shape. The shoreline is, of course,
subject to changes by natural forces, but the land along the shore
is, for the most part, hard and rocky, and therefore such changes
in the shoreline have been extremely gradual. The Louisiana coast
is entirely different in many ways. The waters off the shore are
shallow, and often not readily navigable. The shoreline is marked
by numerous complex indentations, and indeed the United States, in
a brief filed earlier in this litigation, itself recognized that
"[t]he Louisiana
coast line is an extraordinarily
complicated one." [
Footnote 2/8]
(Emphasis added.) Even more important than this complexity of the
present coastline is its highly volatile nature. The mighty
Mississippi brings sediment and mud which may build up little
islands and mud elevations one day and destroy them the next. Parts
of the Mississippi Delta are receding at a rapid rate, while, in
other parts, deposits are rapidly being built up. Recent projects
along the Atchafalaya River may cause that river to begin building
another massive delta that could grow seaward at a rate of almost
one mile per year. Because the coast is composed
Page 394 U. S. 84
of soft, silt-like material, because the water is, for the most
part, relatively shallow, and because the elevation of the land
along the shore is extraordinarily low, the shoreline often changes
drastically merely as a result of temporary variations in winds and
waves. Offshore islands sometimes appear or disappear spontaneously
as a result of the same forces, and, of course, major hurricanes to
which Louisiana -- unlike California -- is occasionally exposed,
cause even more substantial changes.
In Louisiana, consequently, the Court cannot correctly say about
its holding what it said with some plausibility in the second
California case:
"Before today's decision, no one could say with assurance where
lay the line of inland waters as contemplated by the Act; hence
there could have been no tenable reliance on any particular line.
After today, that situation will have changed. Expectations will be
established and reliance placed on the line we define. . . .
'Freezing' the meaning of 'inland waters' in terms of the
Convention . . . serves to fulfill the requirements of definiteness
and stability which should attend any congressional grant of
property rights belonging to the United States."
381 U.S. at
381 U. S.
166-167.
Today's holding does not grant Louisiana the "definiteness and
stability" promised to California. A company having an oil lease
now under ocean waters of Louisiana gets no more than an ambulatory
title: here today and gone tomorrow. And with its title, I suppose,
will go all of its expensive investment in developing the lease.
Stable business cannot be fostered that way. The ambulatory title
which the Court finds in the Submerged Lands Act, I think,
frustrates the just expectations Congress desired that oil
companies have in the stability of their leases for exploitation of
oil under the sea.
Page 394 U. S. 85
Nothing was said in the second
California opinion
indicating that the treaty provisions the Court borrowed in that
case were to be mechanically used to fit every land dispute. The
treaty was chosen there because the Court thought it provided the
"best and most workable definitions available" in the dispute
between California and the United States; the doctrine cannot fit
all cases. If it worked for stability in California, it has a
directly opposite effect in Louisiana. Moreover, the doctrine is
tending to bring about interminable litigation. Passed 15 years
ago, the Act has generated litigation that is not yet abating; we
have another dispute similar to this one before us now, and neither
the United States nor the State indicates that there is not far
more time-consuming litigation still to come. In fact, discussion
of this case by the Court requires 63 pages in what appears to me
to be as succinct and clear an opinion as could have been written.
And even yet the end of the dispute has not arrived. How many years
the Master who must now be appointed will have to work, how many
persons must be hired to help him, no one can predict. Settling and
identifying boundaries on land is a surveyor's job; he must go to
the land with his instruments and mark it off. Identifying an ocean
boundary, we are told by the briefs and arguments of both parties
here, is a much more complex job; it takes much time by surveyors,
cartographers, photographers, and oceanographers, a knowledge of
angles, tides, rolling waters, higher mathematics, etc. [
Footnote 2/9] Shorelines are constantly
changing, and thus, under the Court's formula, even this
painstaking work cannot provide a means of marking the boundary for
all time. I cannot accept the argument that Congress ever intended
to impose on this Court such an unjudicial job. I turn therefore to
Louisiana's
Page 394 U. S. 86
contentions that Congress long ago adopted a plan and selected a
government agency to determine where the inland water line is, that
this agency has considered and determined that line, marking it as
required by law, and that this line, which is not movable, but
fixed, provides the stability and certainty necessary to make the
purchase and exploitation of oil leases on submerged lands a
commercial success. To the extent that my analysis is inconsistent
with other possible interpretations of the second
California case, it must be recognized that the usual
reasons for strong deference to prior precedent are almost wholly
absent here.
Stare decisis is a valuable principle
because, by making the governing legal rules predictable, it
enables private parties to determine their rights without
litigation and enables lower courts to dispose of the great bulk of
disputes that do result in litigation. In the present unique
situation, however, only a small handful of parties is affected by
the governing legal rule; settlement entirely out of court is
highly unlikely under the Court's Convention rule, and, in
practice, though not of necessity,
cf. 28 U.S.C.
1251(b)(2), all these disputes are being brought within the
original jurisdiction of this Court. Under these circumstances,
this Court should certainly not adhere blindly to its previous
holdings, particularly where, as here, the State involved was not a
party to the prior litigation and the claim raised here by
Louisiana under the 1895 Act was never considered in the prior
litigation.
II
In 1895, Congress passed this law:
"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,
Page 394 U. S. 87
the lines dividing the high seas from rivers, harbors and inland
waters. [
Footnote 2/10]"
This 1895 law was the successor of other laws showing
congressional interest in marking the boundaries between inland and
outer-sea waters. [
Footnote 2/11]
Such marks are necessary in order for ships to know when they must
obey local signals in the inland waters of a State, as
distinguished from their duty to observe international rules and
warnings. Title 33 of the U.S.Code contains our inland water rules,
for infraction of which courts can inflict penalties consisting of
fines and sometimes ship seizures. The Government argues that it is
not the purpose of this statute to give the Secretary power to mark
this boundary except to control navigation. To buttress this
contention, reference is made to a few sporadic statements by
Secretaries who had occasion to mark boundaries, and by some
legislators who helped pass the statute. But surely the Government
is not contending that Congress, in solemnly considering over a
period of years and then passing this law, was doing so as a kind
of joke. International and local rules of navigation are serious
business, and the warnings put out under order of Congress to
inform ships where inland waters begin must be acted on and obeyed.
Here, not only has the line delineating Louisiana's waters been
marked, but also the State passed Act 33 of 1954 accepting these
governmental markings as showing positively and certainly just
where its inland water line is located. And there is no danger that
this line will be ambulatory, since the line is now marked, and
will not move as shore conditions
Page 394 U. S. 88
change. Nor will future modifications in the line by the Coast
Guard disrupt title to these inland waters or to the land and oil
beneath them, since this Court has repeated several times that a
State's territory cannot be taken away from it by Congress without
its consent. [
Footnote 2/12] Such
was the understanding of Senator Cordon, floor manager for the
Submerged Lands Act, who said:
"The boundaries of the States cannot be changed by Congress
without the consent of the States. We cannot do anything
legislatively in that field, and we have not sought to do so in
this measure. [
Footnote
2/13]"
Acceptance of the Coast Guard's inland water mark for Louisiana
fits precisely within the reasons given for utilizing the
international Convention in the second
California case. It
will put a stop to eternal litigation and help relieve this Court
of the heavy burden repeatedly brought upon us to make decisions
none of us have the time or competence to make. It will release the
time of the Court to do other and more important things. It will
help to end further delay in our giving effect to the desire of
Congress to grant the States full ownership and control over
submerged lands three miles or three leagues from their coastlines.
And it will provide the certainty and stability which are
absolutely essential for useful development of our offshore oil
resources.
I dissent from the Court's holding.
[
Footnote 2/1]
67 Stat. 29, 43 U.S.C. §§ 1301-1315.
[
Footnote 2/2]
For this reason, it is difficult to understand why the Federal
Government is subjecting the State of Louisiana and this Court to a
long series of technical and wasteful lawsuits. When all of them
are over, the United States will have little more undersea land
than it already had. The only practical difference that I can see
at the moment if the Federal Government wins is that it, instead of
the State, will have power to lease the land to some oil company.
On the other hand, should Louisiana win, it can lease the land,
perhaps at a bigger price, and then, as I pointed out in a prior
separate opinion,
United States v. Louisiana, 363 U. S.
1,
363 U. S. 85,
98-100, devote its oil income to public education.
[
Footnote 2/3]
44 Dept. State Bull. 609; [1964] 15 U.S.T. (pt. 2) 1607,
T.I.A.S. No. 5639.
[
Footnote 2/4]
"History is subject to geology. Every day, the sea encroaches
somewhere upon the land, or the land upon the sea; cities disappear
under the water, and sunken cathedrals ring their melancholy bells.
Mountains rise and fall in the rhythm of emergence and erosion;
rivers swell and flood, or dry up, or change their course; valleys
become deserts, and isthmuses become straits. To the geologic eye,
all the surface of the earth is a fluid form, and man moves upon it
as insecurely as Peter walking on the waves to Christ."
W. & A. Durant, The Lessons of History 115 (1968).
[
Footnote 2/5]
The propriety of using the Coast Guard line as the seaward line
of inland waters was not litigated in the second
California case. The issue was not raised by the
pleadings, nor was it argued. The point was raised once on oral
argument when MR. JUSTICE BRENNAN asked if the United States relied
on the Coast Guard line. Mr. Cox, the Solicitor General, replied
that the United States placed no reliance on it, the purpose of
that line being "to indicate where the inland rules applicable to
vessels control and where the international ocean rules control."
He added that Louisiana will contend, when her case reaches here,
that the Coast Guard line does control, but that it was not
involved in the California segment of the litigation.
[
Footnote 2/6]
United States v. California, 332 U. S.
19 (1947).
[
Footnote 2/7]
This is vividly demonstrated by the colloquy between MR. JUSTICE
BRENNAN and Solicitor General Cox, referred to in
394 U.S.
11fn2/5|>n. 5 above:
"JUSTICE BRENNAN: Now, I have forgotten -- maybe the briefs
cover this provision of Title 33 under which the Commandant of the
Coast Guard is required to fix the lines dividing the high seas
from inland waters."
"Do you rely on that at all?"
"MR. Cox: Oh, no. And neither does California."
"JUSTICE BRENNAN: Well, would you tell me why part (a)(2) of
that title dealing with this very section, for example, there is a
provision that 'The outer limits of inland waters in Santa Barbara
Harbor shall be,' and then there is a description, a line drawn
from Santa Barbara, the light-blue one, past the Santa Barbara
Harbor breakwater which, if I locate it on this map, is some little
segment away in the upper corner, beneath the word 'Santa Barbara'
on your map. But you don't rely at all on the definition of inland
waters on Congressional definition in another statute."
"MR. Cox: No. No. We think that those statutes relate simply to
-- had one purpose and only one purpose, and that is to indicate
where the inland rules applicable to vessels control and where the
international ocean rules control."
"JUSTICE BRENNAN: Just traffic rules of the road."
"MR. Cox: They are just traffic rules of the road, we would
say."
"
Now, in the Louisiana case, if and when it ever gets here,
Louisiana will contend it relies on that, because, in that
instance, it happens that the Coast Guard line is placed way out in
the Gulf, but here it is apparently placed way in."
"JUSTICE BRENNAN: As I get it, it is only a tiny bit of a corner
up there at that point."
"MR. Cox: That is right. And, of course, this is terribly deep
water and ocean-going vessels use it."
"Now, I should say that there are some small points in these
bays that we would agree were harbors. For example, we would agree
that up -- if you can remember Monterey Bay -- that is not on this
map -- it sort of hooks around, comes around in like this
(demonstrating), and the shore comes out this way. We would agree
that these little points up here are harbors. If you have been to
Monterey, we would agree that the area in which you see fishing
vessels anchored, up there at the dock, that is a harbor. That has
not been argued about here. We concede. And there may be a few
little points up next to Santa Barbara that come the same way as
harbors."
"JUSTICE BRENNAN: Well, I notice that the Commandant has defined
inland waters from Monterey Harbor, San Luis Obispo, San Bedro,
Santa Barbara, Crescent City, Isthmus Cove at Santa Catalina and
Avalon Bay, but you don't rely on any of these."
"MR. Cox: No. We don't rely on any of them."
"JUSTICE BRENNAN: You don t rely on that."
"MR. Cox: We don't rely on it, no."
(Emphasis added.)
[
Footnote 2/8]
Memorandum for the United States in Reply to Louisiana's Brief
in Opposition to Motion for Leave to File Complaint, March 7, 1956,
pp. 9-10.
[
Footnote 2/9]
See my dissent filed today in the
Texas Boundary
Case. Ante at
394 U. S. 8,
n.2.
[
Footnote 2/10]
28 Stat. 672. This Act has been changed by substituting for the
Secretary of the Treasury the Secretary of Commerce, and later by
placing the responsibility with the Commandant of the Coast Guard.
Now 33 U.S.C. § 151.
[
Footnote 2/11]
E.g., 23 Stat. 438 (1885); 26 Stat. 30 (1890).
[
Footnote 2/12]
See, e.g., Fort Leavenworth R. Co. v. Lowe,
114 U. S. 525,
114 U. S. 541
(1885);
Geofroy v. Riggs, 133 U.
S. 258,
133 U. S. 267
(1890).
[
Footnote 2/13]
99 Cong.Rec. 2634.