Abstract
The purpose of this Section is to quote the definition of a bay as formulated by the 1958 Geneva Law of the Sea Conference, to offer an interpretation of it, and to indicate how it may increase the number of juridical bays and increase the areas of internal waters in a number of other bays. It is not the purpose of this section to comment upon the process through which this definition was formulated or to express any views upon the merits of the definition.
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References
United Nations Document A/Conf. 13/L.52; reprinted in 38 Department of State Bulletin 1111 (1958); reprinted in 52 American Journal of International Law (Oct. 1958), at pp. 835–6.
Bays in the littoral of two or more states will be discussed in Chapter Nine.
See Section C., infra, for linguistic variations in terms.
This was obviously the case in a number of instances reported by Keller, Lissitzyn, and Mann in Creation of Rights through Symbolic Acts, 1400 to 1800 (1938).
René de Kerchove, in his exhaustive work, International Maritime Dictionary (1948), writes at page 396, simply: “Landlocked. Surrounded by land, said of harbors and anchorages.”
Bays that fulfill these qualifications include the vast majority of bays in the world as any good atlas will quickly indicate.
The customary system for design and use of navigation charts is that States having hydrographic services conduct their own coastal surveys, design their charts and then supply such charts to the Hydrographic services of interested countries. Information concerning new surveys and the availability of new charts is usually distributed through the International Hydrographie Bureau in Monaco. The U.S. Navy Hydrographie Office will seek permission to reproduce the charts for sale to interested mariners. During the 19th and 20th Centuries, the Royal Navy and the United States Navy have surveyed vast areas of the world for which accurate charts did not previously exist and in which the littoral States concerned were not prepared to undertake the necessary surveys. Hill, et al., op. cit., pp. 16–28; Bowditch, op. cit., Ch. V.
K. T. Adams, Hydrographie Manual. Special Publication No. 143, U.S. Coast and Geodetic Survey (1942), Ch. I. In passing, it should be noted that surveying and charting of coasts of the United States and possessions, including TRUST territories is, the responsibility of the United States Coast and Geodetic Survey, See Section B, below, for more detailed discussion of the low water mark.
The most widely used projection is the cylindrical one, commonly called the Mercator projection, after its inventor. Other types of projections are: transverse Mercator, oblique Mercator, simple conic, Lambert conformai, polyconic, azimuthal, gnomonic, sterographic, and orthographic, and azimuthal equidistant. Hill, et al., op. cit., p. 17. Description of these projections is considered beyond the scope of this text. An excellent layman’s description is contained in Nicholas J. Spykman, America’s Strategy in World Politics (1942).
Hill, et al., op. cit., p. 16.
There is the possibility, of course, that the location of a port close to the entrance to a bay may bring about an opposite decision. If the port area is near the entrance to a bay, the littoral State may, of course, take a directly opposite view. By excluding such port area from being considered as part of the bay’s waters, it might be possible to bring an otherwise larger indentiation within the twenty-four mile limit.
If islands are the result of silting at the mouth of a bay, they are likely to be in some sort of orderly array. If they are the mountainous remnants of a submerged peninsula, this also may be true. On the other hand, if such islands are the result of independent volcanic action or some multiplicity of natural causes such as erosion from tidal currents, their positions may display no logical arrangement.
Here, of course, we are presented with a minute and no doubt relatively unimportant example of one of the problems of codification. There is a limit to the process of advance formulation of general rules to be applied in particular cases involving particular circumstances. Further discussion at this juncture would involve a matrix of theoretical analysis at the expense of the objective of this section. For a brief view of codification as applied to the 1958 Geneva Conventions, see Max Sørenson, “Law of the Sea,” 520 International Conciliation (Nov. 1958), p. 255.
It has been this author’s experience that an appreciable number of busy decision makers, as well as some scholars, exhibit a tendency to fasten their thoughts upon what they conceive of as being the most important, rather than to proceed logically from the general to the particular. Stated another way, it can be said that for reasons and values not here specified a premature occlusion to inquiry takes place.
For a more detailed discussion of the nautical mile, see Section B, below.
Comment on the 24-mile maximum closing line is contained in Chapter 5. It might be pertinent to observe here, more perhaps in the role of a practicing mariner, than as a student of international law that generally speaking, a “land locked” bay having an entrance twenty-four miles across represents something of a contradiction in terms.
See Chapter 4 for discussion of the Moray Firth case of 1906. This case is often known also as Mortensen v. Peters. See Section B, for chart of Moray Firth.
This option is clearly conditional. The State making the claim has the onus of proving its right to do so. See Chapter 7, below.
The author made a survey of all coastal areas in the world using The Times Atlas, The Encyclopeadia Britannica Atlas and appropriate charts of the U.S. Navy Hydrographic
Office. In a survey of such magnitude, it is quite conceivable that errors can occur. It is hoped that only a minimum of errors have been made. The few doubtful cases have been so labeled. In doubtful cases careful calculation using using on the spot surveys would be in order.
In arriving at this list, the author adopted the assumption that there did, in fact, exist a 10-mile rule of bays and that the bays in this list were juridical bays. Thus the ‘factor of three or more’ difference in the area of internal waters results from a comparison of the area bounded by a 10-mile closing line with that bounded by a 24-mile closing line. Brief consideration will probably cause the reader to agree that this is not an unreasonalbe procedure. If a bay is of such a configuration as to permit a 10-mile closing line, there is great likelihood that the State will have considered its waters as internal waters; that such a statement is likely to reflect the reality of any given situation can be easily demonstrated by reference to appropriate large charts in the 1: 1,000,000 scale category or larger.
In compiling this list, it was first assumed that the bay in question had not been considered a juridical bay by its littoral Sfate, except possibly as an historic bay. By reason of the configurations of most of these bays, this is a reasonable assumption because the majority of them are bowlshaped, or approximately so, having coast lines well open to the sea. Secondly, there are included only those bays which are twenty-four miles or less in breadth at the mouth. To select those bodies of water having entrances greater than 24-miles in breadth and then to establish by trial and error a 24-mile closing line yielding the greatest area of internal waters would, for a world survey, involve an extraordinarily lengthy series of calculations; this was considered impractical. All bays included in this list have been compared with the semi-circular area rule and they qualify as juridical bays. Those bays which are claimed now as historic bays but which also qualify for this list are included.
This particular sketch is similar to that often used by A, L. Shalowitz, U.S. Coast and Geodetic Survey, in the articles he has written for various technical journals in recent years. Examples are: Aaron L. Shalowitz, “Boundary Problems Raised by the Submerged Lands Act,” 54 Columbia Law Review (Nov. 1954), pp. 1021–48
A. L. Shalowitz, “Where Are Our Seaward Boundaries,” 83 U.S. Naval Institute Proceedings (June 1957), pp. 616–627.
Capitaine de Frégate (CDR) Henri Bencker, French Navy, “Maritime Geographical Terminology Relating to Various Hydrographic Subdivisions of the Globe,” XIX International Hydrographic Review (Aug. 1942), pp. 60–74.
This is the term which was favored in the drafts of the International Law Commission. It is the author’s belief, that practical application of this term can lead to some imprecision of expression. The U.S. Navy Hydrographic Office defines “mouth” as: “An opening such as that through which the water of a river is discharged, the entrance to a harbor, etc.” Navigation Dictionary, U.S. Hydrographic Office Publication No. 220 (1956), p. 144. It appears to be used interchangeably with “natural entrance points” in rticle 7.
This term is used by the Tribunal in its Award and Recommendation in the North Atlantic Coast Fisheries Arbitration, 7 September 1910. James B. Scott, Hague Court Reports, p. 146ff. Its name is applied to a particular doctrine or school of thought on the law of bays, Chs. 4 and 5, below. For purposes of present usage, the term “headland” is not satisfactory since to the mariner it connotes a precipitous cape or promontory. H. O. Navigation Dictionary, p. 100; René de Kerchove, International Maritime Dictionary (1948), p. 331.
This is the term used rather consistently by the Court in Mortensen v. Peters, 1906, (Moray Firth Case), and in the ensuing debate in the House of Lords. 14 Scots Law Times (1906) Rep. 227; 169 Hansard, Parliamentary Debates (4th Series) Cols. 979, 983ff.
Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), pp. 430–6
Jones, Unpublished Naval War College Manuscript. In current codification studies, it appeared in the United Nations Committee of Experts Report, (A/CN.A/61/Add. 1 of 1953).
Commander Bencker writes that the International Hydrographie Bureau formulated mathematical definitions for small islets (1 to 10 square kilometers), islets (10 to 100 square kilometers), and islands (100 to 5 × 106 square kilometers). While the marine parlance of some languages makes more continuous use of these distinct terms, they do not find common use in International Law.
Kerchove, op. cit., p. 435. See also: 24 American Journal of International Law, Supplement (1930), p. 248; and U.S. Naval War College, International Law Situations, 1937, p. 128.
Bowditch, American Practical Navigator, p. 107.
Spring tides occur near the time of the full moon and new moon when the tidal effects of sun and moon are in phase. When the sun and moon are thus acting together, high tides are higher than average, and low tides are lower. When the moon is at quadrature, at first and last quarter, the tidal effects of the two bodies are opposing each other and the range of the tide is less than average. These are called neap tides.
Hill, Utegaard and Riordan, Dutton’s Navigation and Piloting (1958), pp. 201–203.
Bow ditch, pp. 103–4.
Bowditch, pp. 26–27.
CAPT Christopher B. V. Meyer, Royal Norwegian Navy, The Extent of Jurisdiction in Coastal Waters (1937), pp. 521–2.
Bowditch, p. 27.
Navigation Dictionary (H.o.220), p. 31.
Kerchove, op. cit., p. 323.
Sumner W. Cushing, “The Boundaries of the New England States” X Annals of the Association of American Geographers (Jan. 1928), at p. 28.
Semantics or semiotics, is the study of a general theory of signs which investigates the properties of all forms of linguistic expression. Hans Reichenbach, The Rise of Scientific Philosophy (1958), p. 226.
F. N. Ball, Intellectual Calculus (1951), p. 77.
Charles Boasson, Sociological Aspects of Law and International Adjustment (1950), p. 37.
The ideas of Boasson and Ball appear to be shared by the late Oxford philosopher Ludwig Wittgenstein: “The Uses of Language,” The Age of Analysis, Morton White, Ed., (1955), pp. 225–236.
See also Quincy Wright, The Study of International Relations (1955), pp. 269–306.
Voltaire, A Philosophical Dictionary, English Translation of 1824, Vol. V, pp. 281–299.
That the lexicographer’s definition of a bay may play a part in the settlement of a dispute at law is illustrated in the opinion of the Supreme Court of California in Ocean Industries v. Supreme Court of California (1927) 200 Calif. 235; McNair and Lauterpacht, Annual Digest of International Law Cases 1927–28 (1931), Case No. 89.
Webster’s New International Dictionary, 2nd Ed., (1935), p. 234.
The passage is quoted in pertinent part:
“Gulf. — N. land covered with water, gulf, gulph, bay, inlet, bight, estuary, arm of the sea, fiord, armlet; frith, firth, ostiary, mouth; lagune, lagoon; indraught; cove, creek; natural harbor; roads; strait narrows; Euripus; sound, belt, gut, kyles.”
ADM. W. H. Smyth, Royal Navy, The Sailor’s Word Book, Rev. by VADM E. Belcher, Royal Navy (1867), p. 87.
A Naval Encyclopedia (1881), p. 70.
René de Kerchove, International Maritime Dictionary (1947), p. 45.
Bencker, “Maritime Geographical Terminology,” op. cit., at p. 69.
U.S. Navy Hydrographic Office, Navigation Dictionary, H. O. Publication No. 220 (1956), pp. 23, 96.
A reversal of the trend appears, however, in the definition contained in the second (and latest) dictionary of the International Hydrographic Bureau. This definition reads: “A comparatively slight indentation in the coast line with a wide opening, in distinction to GULF, LOCH, FIRTH, etc.” Hydrographic Dictionary, compiled by the International Hydro-graphic Bureau, 2nd Edition, (1951), p. 7. The reason, then, for pursuing the matter further than a simple resort to the word book of the International Bureau is obvious.
This definition was submitted to the author, in the U.S. Naval Intelligence School Letter of 29 June 1959, hereinafter referred to as U.S. Naval Intelligence School letter.
Vol. I, p. 278. Included therewith is a discussion of the etymology of the word. The passage is quoted hereunder as Appendix A.
Vol. II, p. 55.
Vol. IV, p. 1171.
Vol. I, p. 273.
French also has the following more or less synonymous words: Anse — très petit golfe (inlet). Estuaire — golfe formé par l’embouchure l’un fleuve.
Naval Intelligence School letter.
The author is much indebted to Mr. George S. Mitchell of Washington, D.C. who kindly sent appropriate excerpts from his unpublished thesis, Russian-English Dictionary-Glossary in Geomorphology and Related Sciences. Other sources are the Russian Research Institute of Harvard University and the U.S. Naval Intelligence School.
USSR. Vsesoivznyi naucho-issledovatel’ skii’ geologieheskii institut. Geologicheskii slovaf, Tom (Vol.) 1–2, Moskva, 1955, pp. 402; 445, hereinafter referred to as Geologicheskii slovar’.
A. S. Barkov, Slovaf Spravochnik po Fizicheskoi geografii, (1954), p. 307, hereinafter referred to as Barkov.
U.S. Naval Intelligence School, citing Bolshaya Sovetskaya Entseklopeduja.
Russian Research Institute of Harvard University, citing the Dictionary of Modern Russian Literary Usage.
Mitchell thesis citing Geologicheskii Slovaf, p. 289 and Barkov, pp. 90–91.
Barkov, pp. 90–1, cited by Mitchell.
Geologicheskií Slovaf, Vol. I, p. 371, cited by Mitchell.
Letter to the author of 2 December 1958.
U.S. Naval Intelligence School letter.
Vol. II, p. 22. The English translation is:
Inlet or creek from the seacoast, not very large and extending somewhat into the interior. The English equivalent, bay, is at times and less properly used to indicate arms of the sea which are of notable extension and somewhat open (such as Baffin Bay or Hudson Bay). In common usage, bay is synonymous with creek; for example, the Bay of Pozzuoli.
From U.S. Naval Intelligence School letter citing G. Bartoli, Il Nuovissimo Melzi and Dizionario Tecnico. See also Vocabulário e Dizionario dei Regutini e Fanfani, which contains definitions substantially similar.
In letter of 26 June 1959 to the author.
The author is indebted to Captain Takaichi Itayo, Japanese Maritime Self Defense Force, for his letter of 1 December 1958, in which the Japanese usage was discussed at length.
The U.S. Naval Intelligence School cites the following authorities: Comprehensive English-Chinese Dictionary, Tz’u Hai, Gwoyeu Tsyrdean, and English-Chinese Dictionary of Nautical Terms.
Discussion of 4 August 1959, The Institute of East Asian Studies, Harvard University.
The legal department of United Nations Headquarters did not have a Chinese language copy of the 1958 Geneva Conventions and was unable to furnish the author with a translation of the word, bay, as used in those conventions.
This translation and information was furnished by Mr. Arvo Pietarinen of Helsinki, Finland, student at the Fletcher School of Law and Diplomacy, 1958–59.
P 81, above.
P 81, above.
Tomo VII, pp. 192–3. A translation of this passage is: Sinuosity of the coastline forming an entrance or cavity into which the sea penetrates. It is larger than a creek or inlet and ordinarily smaller than that termed a gulf, although some of these (gulfs) and even some seas are called bays such as Baffin and Australia and Hudson Bay. Although less sheltered than harbors, especially from swells and outside winds, bays are often suitable for anchoring shipping.
Nearly all material used in this section is derived from three sources: (a) Bowditch, American Practical Navigator, 1958 Edition, U.S. Navy Hydrographic Office Publication No. 9. (b) Hydrographic and Geodetic Surveying Manual, U.S. Navy Hydrographie Office Publication No. 215. (c) Hydrographic Manual, U.S. Coast and Geodetic Survey Special Publication No. 143. In addition, the author is indebted to RADM Karo, Director, U.S. Coast and Geodetic Survey and Rear Admiral Robert W. Knox, U.S. Coast and Geodetic Survey (Ret.), President of the Directing Committee, International Hydrographic Bureau, for supplementing information. RADM Karo’s letter to the author is dated 8 December 1958. That of RADM Knox is dated 1 December 1958.
See Sections A and B, above, for discussions of tidal levels.
1958 Edition.
Often, as a practicing mariner, the author has had reason to doubt the accurary of the only charts available for a particular area. Such is usually the case in some of the less traveled areas of the world, or in areas which have more recently come into prominence.
The twenty-four miles are nautical miles of 6,072 feet. If, for any reason, the scale of the chart is in English statute miles, then one should use 27.6 statute miles to equal 24 nautical miles, or multiply the number of statute miles by. 87 to get nautical miles. Table No. 20 at page 1276 of Bowditch, 1958 edition can also be used. It should be observed, too, that a nautical mile is 1,852 kilometers. To convert kilometers to nautical miles, multiply thenumber of convert kilometers by .54. 24 nautical miles equals 44.4 kilometers.
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Strohl, M.P. (1963). Terminology. In: The International Law of Bays. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0967-1_2
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