Dear Robin & All,

The question raised, re. low-tide elevations, is by no means an easy one.
And it does not have a straightforward answer. There may be various
considerations to weigh. For whatever it is worth, please find below a few,
very brief thoughts on it:

1) To be extremely practical, and to answer your question in the sketch-map,
I would say that, in principle, the 12M line derived from the LTE cannot be
used as the outer limit of State A.

2) It could have been used by State B had it not been for the delimitation
effected between the two states.

Having said this:

3) Remember that transfer of areas between states (imagine that state B had
the intention to transfer the areas generated by the island and the LTE to
State A), although not an easy issue, is possible to conceive. One example
that is coming to my mind (and I did not have the means to check this) is
that of the 1990 USA/USSR Boundary Treaty. "In casu", it referred to the
200M-limit, but extrapolation/analogy seems possible - Robin, you may want
to check my book, around p.344 (I don't have it with me at the moment).

4) In broader terms, perhaps this is one of those situations that fall
within the set of questions concerning "grey areas" - again Robin, you may
want to check my book, Ch.8, para.8.4.d). I have written 4-odd pages on the
issue, with indication of bibliographic references.

5) If it indeed falls within the "grey area" issue, then the question might
arise as to whether State B can still claim a territorial sea on the basis
of the LTE. Much depends on how, legally, the boundary is delimited (i.e. an
all-purpose boundary-line, specific maritime zone boundary, etc.), and on
whether or not when endorses the idea of precedence between entitlements. If
State B has agreed not to exercise any sort of powers beyond the
boundary-line (be it sovereignty, sovereign rights or jurisdiction), then it
probably is not in a position to claim those TS areas. It could not enjoy
its full, 12M TS entitlement form the island, let alone from the LTE.

6) One final point that you may wish to consider concerns the reasoning of
the ICJ in the Qatar/Bahrain case re. LTEs. One of the main points made by
the Court, in the debate surrounding the determination of the relevant
coastline, and in as far as the question of low tide elevations located in
the area of overlapping territorial sea entitlements is concerned, was that
international treaty law is silent on the question whether low-tide
elevations can be considered to be territory. And it added that it was
unaware "of a uniform and widespread state practice which might have given
rise to a customary rule which unequivocally permits or excludes
appropriation of low-tide elevations" (for the whole argument, please cf.
Qatar/Bahrain case - Judgment on the Merits, paras.205-209). Again Robin,
you may wish to look at a comment that I have on p.291. I am not sure that
this is fully relevant for what you have in mind, but it probably is worth
looking into.

Hope this is in any way helpful.
Kind regards,
Nuno





-----Original Message-----
From: International boundaries discussion list
[mailto:[log in to unmask]] On Behalf Of Cleverly Robin
Sent: quarta-feira, 17 de Novembro de 2004 21:19
To: [log in to unmask]
Subject: Low tide elevations

I have a conundrum concerning low-tide elevations on which we have a
difference of opinions.

Mainland coasts and islands are entitled to 12M territorial sea (TS)
limits, as are low-tide elevations within 12M of an island or mainland.

The situation I would like to consider is near an international
boundary.

The question I would like to pose is this:  can a LTE be used if it is
within 12M of somebody else's island?

See the attached graphic (if it gets through the chat line filter).

Consider an island and a LTE less than 12M apart and more than 12M from
the mainland.  They are both entitled to a 12M TS.
What is the situation if they are separated by an international
boundary?  The island is obviously still entitled to a  TS but can the
LTE claim validity based on the island across the boundary?

I would appreciate any comments.

Robin

------------------------------------------------------------------------
----------
Dr Robin Cleverly
Law of the Sea Officer
UK Hydrographic Office
Taunton
Somerset TA1 2DN
UK
Tel: +44 1823 337900 x 3063#

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