I am not going to attempt a detailed answer to this interesting qn, for 2
reasons. (a) It involves a number of complex questions, and these days I
tend to find the time to answer such questions only in the course of my
professional functions as a barrister. (b) in the real world, I would not
attempt a firm or even firmish answer without the help of a
hydrographer. But it might help start the ball rolling if I make a few
observations.
(a) As the qn rightly notes, the Convention does not contain provisions
for multi-State bays. We are thus thrown back on customary IL. But one
has to be careful here - the CIL on single-State bays may not provide the
answer either - one would need to consider how far there is enough
consistent State practice for multi-State bays to constitute a rule and, if
so, what it says. If there is no customary rule, then the default rule of
following the low-water line could well (subject to (b) below) apply.
(b) The qn seems to focus on country (which I presume is a State) X, and
not on Y. But there are interesting questions about what Y can do. E.g.
could it apply an Article 7 system of straight baselines, on the basis of
being island-fringed? Depending on the geography north of the sketch-map,
it is also not wholly inconceivable that this cd apply to State X too. If
so, could this give it a line running to A without having to bother about
the law of bays?
(c) Leaving aside my observations in (a), a traditional criterion for
enclosing a (single-State) bay in CIL is that the waters should be "inter
fauces terrarum" (within the jaws of the land) or, as the ICJ put it in the
Anglo-Norwegian Fisheries case, that they shd include land-locked
waters. It looks to me as if the whole area from the promontory just below
the top of the sketch map to some point of land at (or even beyond) the
bottom could fall into that category. (Also, those look to me to be its
natural entrance points, though I would want a geographer or hydrographer
to express a view on this.) A semi-circle test (or something approximating
to it - the semi-circle is not necessarily a rule of CIL) wd also be
satisfied, bearing in mind (by analogy with Art. 10) that the islands are
to be treated as water for the purpose of determining where a construction
(not closing) line wd run and whether the area is a bay.
If so, it might then be a question of finding the 24-mile line (or similar
- is exactly 24 miles required by CIL?) which wd enclose the maximum area
of water. Prima facie, that looks to me (though a hydrographer wd be
needed here) to be the line running from the promontory near the top of the
sketch-map to point A. Of course, it might be responded that the water is
not "enclosed", because of the exit/entrance to the south, on Y's
side. But (a) if Y were to enclose its part of the bay by a bay-closing
line or an SBL, this would not be the case; and (b) in any case, query
whether the word "enclose" has to be taken that literally.
Anyway, I hope these thoughts off the top of my head provide grist for
colleague's mills.
Best,
Maurice Mendelson
At 03:00 19/05/05, hamzah ishak wrote:
>Dear Colleagues,
>
>Article 10 LOSC relates only to bays the coasts of
>which belong to a single state. If two states
>bordering the bays, which line can constitue the
>enclosed line of the bays as in the attached sketch
>map/. If the maritime boundary yet to be delimit,
>where is the possible basepoints for ech state?.
>
>Many thanks.
>
>Mantanani
>
>
>
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Maurice Mendelson, Q.C.
Blackstone Chambers Barristers
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Temple, London EC4Y 9BW,
England.
Tel. +44 20 7583 1770; fax +4420 7822 7350; email
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