Abstract
Sir Hersch Lauterpacht in his Eighth Edition of Oppenheim’s International Law (volume I) writes:
Gulfs and bays surrounded by the land of one and the same littoral State whose entrance is so wide that it cannot be commanded by coast batteries, and, further, as a rule, all gulfs and bays enclosed by the land of move than one littoral State, however narrow their entrance may be are non-territorial. They are parts of the open sea, the marginal belt inside the gulfs and bays excepted. (Italics mine).1
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References
Lauterpacht, Oppenheim’s International Law, vol. I, 8th Ed., (1955), p. 508.
Ibid.
Leo Gross, “The Geneva Conference on the Law of the Sea and the right of Innocent Passage through the Gulf of Aqaba,” 53 American Journal of International Law (1959), pp. 564–594.
Gilbert Gidel, III Le Droit International Public de la Mer (1934), pp. 593–608.
UN Document A/Conf. 13/15.
J. B. Scott. The Hague Court Reports (1916), p. 130.
British Admiralty Publication, I Baltic Sea Pilot, 7th Ed., 1944.
UN Document A/Conf.13/1, p. 217.
Moreover, as we have indicated by the example in Section D, below, there may be reason to believe that Commander Kennedy has not included all bays of the type in question.
Yearbook of the International Law Commission, 1956, p. 202, par. 89.
UN Document A/Conf.13/1, p. 223-
Ibid., p. 226.
Ibid., p. 227.
Descriptive material concerning the Gulf of Fonseca is taken from the following sources: Report of Salvador v. Nicaraugua, (1916), 11 American Journal of International Law (1917), p. 674; UN Document A/Conf.13/15, p. 203; U.S. Navy Hydrographic Office Publication No. 84; Encyclopeadia Britannica World Atlas (1951).
This was really the third attempt to conclude such a convention, and apparently much of the initiative for it came from Nicaraugua, to whom the initial payment of three million dollars was a major consideration. For the diplomatic background of the treaty see George A. Finch, “The Treaty with Nicaraugua granting Canal and other rights to the United States,” 10 American Journal of International Law (1916), pp. 344–351.
III Redmond, pp. 2740–2. The text of the treaty, and U.S. ratification is also reprinted in U.S. Naval War College, International Law Documents, 1924, at pages 31–34. In consenting to ratification of this treaty, the Senate of the United States inserted the following proviso:
“whereas, Costa Rica, Salvador and Honduras have protested against the ratification of said Convention in the fear or belief that said Convention might in some respect impair existing rights of said States; therefore, it is declared by the Senate that in advising and consenting to the ratification of the said Convention as amended such advice and consent are given with the understanding, to be expressed as a part of the instrument of ratification, that nothing in said Convention is intended to affect any existing right of any of the said named States.” Nicaraugua accepted this understanding and ratifications were exchanged on 22 June 1916. I Hackworth’s Digest (1940). p. 702.
El Salvador, Costa Rica, and Honduras protested at nearly all stages of the negotiations. The second attempted treaty was reported to contain provisions similar to those in the Platt Amendment to the U.S.-Cuban Treaty of 22 May 1903. I Malloy p. 632. The general tenor of protests was to the effect that U.S. presence in Nicaraugua would dominate the entire country. Finch, op. cit. See also Salvador R. Gonzales, “The Neutrality of Honduras and the Question of the Gulf of Fonseca,” 10 American Journal of International Law (1916), pp. 509–542.
Established 20 December 1907 at the Central American Peace Conference at Washington. II Malloy, p. 2399; Hyde, op. cit., p. 1599.
This point seems to be taken up in most subsequent discussions of the case. e.g. I Hack-worth’s Digest at page 704. In light of the current situation in the Gulf of Aqaba, it would appear desirable to emphasize this point.
The judgment quotes from a United States note to El Salvador, dated 18 February 1914: “In your protest the position is taken that the Gulf of Fonseca is a territorial bay whose waters are within the jurisdiction of the bordering States. This position the Department is not disposed to controvert.”
Although not specifically cited in the opinion, the Court probably had reference to August W. Heffter, Das Europäische Völkerrecht der Gegenwart (1888), pp. 148–160, in which the author repeatedly mentions possibility of joint possession.
It was not pointed out that the Austro-Prussian arrangement lasted only from 22 August 1864 until the Bad Gastein Agreement of 14 August 1865. A. J. P. Taylor, The Struggle for the Mastery of Europe 1848–1918 (1954), pp. 154–7. The Chile-Bolivia arrangement endured from 1876 to 1884, but under highly unstable conditions.
Mary W. Williams, The People and Politics of Latin America (1938), pp. 574–6. It would appear that joint sovereignty has had, in general, an unhappy history, save perhaps for the Anglo-French Condominion of the New Hebrides. In coastal waters, and in certain border zones, there is as a practical matter often a good bit of de facto joint sovereignty despite the presence of an actual boundary.
Hans W. Weigert, et al, Principles of Political Geography (1956), shows a number of examples at pages 87–89. Such local working arrangements will inevitably come into being whenever there is an undisturbed community of interest.
This writer is inclined to agree with Sir Hersch Lauterpacht that the translation of the judgment published in 11 American Journal of International Law does not appear to be satisfactory. Lauterpacht, Private Law Sources and Analogies of International Law (1927), p. 288n.
I Hackworth’s Digest (1940), p. 705.
Chapter FOUR, Section D, above.
Ibid.
This case is cited frequently in the literature on the law of the sea: Moore, International Arbitrations (1898) IV, pp. 4342–3; I Moore’s Digest (1906), pp. 785–7;
Jessup, Law of Territorial Waters and Maritime Jurisdiction (1927), pp. 365–6;
U.S. Naval War College, International Law Situations, 1904, p. 137.
I Malloy 664.
A chartlet of Passamaquoddy Bay is shown in UN Document A/Conf.13/15, at p. 225. For the boundary settlement, see Moore, International Arbitrations, I, pp. 65–83.
Professor Hyde goes so far as to write: “The suggestion may be offered that the Bay of Fundy, by reason of its geographical relationship to the land into which it is projected might be fairly dealt with by the Unitde States and Canada, should they so agree, as a closed bay.” International Law Chiefly as Interpreted and Applied by the United States, 2nd Edition, vol. I, p. 476.
Despite the failure to mention the Bay of Gibraltar in UN Document A/Conf.13/15, Gibraltar and Gibraltar Bay have been the subjects of an enormous littérature through the years, and it is believed that there is no aspect — economic, military, political, legal, geographic or hydrographic — that has not been discussed on numerous occasions and with great scholarly care. Wilbur C. Abbott, An Introduction to the Documents Relating to the International Status of Gibraltar 1704–1934 (1934), lists 572 items. For typical histories, see: G. T. Garratt, Gibraltar and the Mediterranean (1939); H. W. Howes, The Story of Gibraltar (1946); and Allen Andrews, Proud Fortress (1959).
UN Document A/Conf.13/15.
U.S. Navy Hydrographic Office Publication No. 151 (1952), Ch. 2. U.S. Navy Hydro-graphic Office Charts 2430 and 2429. This writer has visited the British port of Gibraltar many times within the past thirteen years. He has had occasion to discuss the Rock and the surrounding area with a number of local officials and residents.
Colonial Office, Report on Gibraltar 1937 (1958), Ch. VI.
Ibid.
Richard A. Preston, “Don’t Sell Gibraltar Short,” 76 U.S. Naval Institute Proceedings (Dec. 1950), pp. 1329–1336;
Wyatt E. Barnes, “Changing Trends in the Mediterranean Balance of Power,” Ibid., vol. 84 (March 1958), pp. 53–62.
Howes, op. cit., Ch. ix; VADM Giuseppe Fioravanzo, IN, “Italian Strategy in the Mediterranean, 1940–43,” 84 U.S. Naval Institute Proceedings (Sept. 1958), pp. 65–83; VADM Friedrich Ruge, GFN, Der Seekrieg, Tr. CDR M. G. Saunders RN (1957); CDR Marc Antonio Bragodin RIN (Ret), The Italian Navy in World War II (1957).
Flag Officer Gibraltar, an officer of the Royal Navy, is also a NATO Commander under Allied Forces Mediterranean.
By reason of these difficulties, American Export Lines shifted its local port of call from Gibraltar to Algericas in 1956. The U.S. Consulate General in Gibraltar, a very old American post, was closed in 1954.
7a War Office, The Army List, Sept. 1962, p. 113
Carnngton, op. cit., p. 8.
Ibid., p. 22.
Foreign Office Papers, 97/377, 30 November 1826.
In this anchorage are located several fuel hulks of the Shell Oil Co., Ltd. The writer believes, from his own experience, that this area is the most desirable anchorage by reason of the peculiarly strong wind effects in evidence further to the south along the Bay side of the Rock.
Foreign Office Papers 185/246, 16 December 1851.
Ibid., 72/948, 10 October 1858.
Ibid., 72/1094, 15 March 1859.
74 British and Foreign State Papers, pp. 1319–52.
C. E. Carrington, Gibraltar, pamphlet of the Royal Institute of International Affairs, pp. 27–31.
100 British and Foreign State Papers, pp. 570–1.
London Daily Mail, 27 January 1956, cited by Carrington, op. cit., at p. 36.
Carrington, op. cit., p. 36.
Section B, above.
Section D, above.
George Lenczowski, Oil and State in the Middle East (1960), p. 345.
Ibid., p. 26. This line has been inoperative since the establishment of the State of Israel.
The economic factors in evidence are largely a result of the political problems. The legal situation in the Gulf of Aqaba and its entrance, the Strait of Tiran, has been written upon in quite thorough and careful detail and this writer can see no useful purpose in a detailed review of the same materials so recently discussed by very able scholars: Charles B. Selak, Jr., “A Consideration of the Legal Status of the Gulf of Aqaba,” 52 American Journal of International Law (1958), pp. 660–698; Alexander Melamid, “Political Geography of the Gulf of Aqaba,” 47 Annals of the Association of American Geographers (1957), pp. 231–240; Alexander Melamid, “Legal Status of the Gulf of Aqaba,” 53 American Journal of International Law (1959), pp. 412–3; Leo Gross, “The Geneva Conference on the Law of the Sea and the Right of Innocent Passage through the Gulf of Aqaba,” 53 American Journal of International Law (1959) pp. 564–594; L. M. Bloomfield, Egypt, Israel and the Gulf of Aqaba in International Law (1957).
Gross, op. cit., p. 571.
Memorandum concerning Historic Bays, UN Doc. A/Conf.13/1, and UN Doc.A/Conf. 13/C.1/L.104, Conference on the Law of the Sea, Official Records, vol. III, First Committee, p. 241 (The Japanese proposal on defining historic bays, submitted at the 1958 Geneva on Conference on the Law of the Sea.)
The geographer is Alexander Melamid, note 5, above. Mr. Melamid does not actually voice an opinion, but his factual description of the Gulf would tend to support Professor Gross’s conclusion. Mr. Melamid’s article in the Annals of the Association of American Geographers is a careful and unbiased appraisal of the politico-geographic features of the gulf.
Ahmad Shukairy, Chairman of the Saudi Arabian Delegation to the United Nations, “On the Question of the Regime of Historuc Waters, Including Historic Bays,” an address before the United Nations Sixth Committee, 30 November 1959.
Charles C. Hyde, International Law Chiefly as Interpreted and Applied by the United States, 2nd Ed., (1947), p. 475.
UN Document A/Conf.13/15 lists forty-eight such bays.
The writer deems it quite unnecessary to elucidate upon this point. One need only peruse the pages of such standard works as Bernard Lewis, The Arabs in History (1958), or George Lenszowski, The Middle East in World Affairs (1956), to arrive at this conclusion.
In 1957 the Saudi Arabian delegate to the United Nations said: “But the matter is not to be decided on judicial grounds. The question involves matters of the highest order pertaining to pilgrimage and other national and political considerations.” General Assembly, Official Records, A/P.V.697, p. 233. In this connection, it may be noted that precise knowledge of the volume of traffic along the several pilgrim routes does not appear readily available. Melamid, “Political Geography of the Gulf of Aqaba”; Houtsma, etal, II The Encyclopaedia of Islam (1927), pp. 196–201; H. A. R. Gibb and J. H. Kramers, Shorter Encyclopaedia of Islam (1953), pp. 121–125.
III Martens Recueil, vol. X, pp. 700–701. This circular note, on Turkish neutrality is an amplification of an earlier note on the same subject, No. 54676/98 of 28 September 1914. The latter note is found at Ibid., pp. 698–700, and is reprinted in English in U.S. Naval War College International Law Documents, 1917, pp. 217–9.
The territorial status of the Sinai peninsula is discussed in detail in Bloomfield, op. cit., chs. 14, 15.
Lenczowski, op. rit., p. 394; 109 British and Foreign State Papers, pp. 436–439.
III Redmond (1923), 2972.
This rather long and detailed treaty has a great many provisions dealing with the pilgrim traffic to the Muslim Holy Places. Careful study of it by the writer failed to disclose any basis for the conclusion reached by Mr. Shukairy.
III Moore’ Digest (1906), pp. 264–6.
Saudi Arabian Note of 31 March 1957, cited by Selack, op. cit., p. 677.
Gross, op. cit., p. 568.
I UN Legislative Series (1951), p. 22; U.S. Naval War College International Law Documents, 1948–49, 196–8.
Statement of Saudi Arabian representative in UN General Assembly, 12th Session, 2 Oct. 1957, Official Records, p. 233.
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© 1963 Martinus Nijhoff, The Hague, Netherlands
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Strohl, M.P. (1963). The Bay within the Littoral of Two or More States. In: The International Law of Bays. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0967-1_9
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