UNITED STATES v. LOUISIANA ET AL. (LOUISIANA BOUNDARY CASE).
No. 9, Orig.
Supreme Court of the United States
Argued October 14-15, 1968.—Decided March 3, 1969.
394 U.S. 11
Archibald Cox argued for the United States on cross-motion for supplemental decree as to the State of Louisiana. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Martz, Louis F. Claiborne, Roger P. Marquis, and George S. Swarth.
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 19531 the United States had quitclaimed to Louisiana the lands underlying the Gulf of Mexico within three geographical miles of the coastline.2 The United States was declared
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 1961.7 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
I.
THE “INLAND WATER LINE.”
Comprehensive congressional regulation of maritime navigation began with the Act of April 29, 1864,8 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and in all coast waters of the United States, except such as are otherwise provided for.”9 The 1864 Act was therefore repealed except as to navigation “within the harbors, lakes, and inland waters of the United States.”10 In 1889 the International Maritime Conference drafted new International Rules, which were promptly adopted by Congress.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.”12
“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;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
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
“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.”20
Louisiana‘s position that the Submerged Lands Act must necessarily be read as referring to the 1895 Act is thus not tenable.21 After a lengthy review of the legislative
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 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 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 long-standing, 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
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.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.24 Within it the coastal nation may exercise extensive control but cannot deny the right of innocent passage to foreign nations.25
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 172.27
But even if a nation could base a claim to historic inland waters on its continuous regulation of naviga-
“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.”32
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
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.”33
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.”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.39
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 desig
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.
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, 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 coast
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
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 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 twо defini
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
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.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
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
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.48
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.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,
After several amendments to the rapporteur‘s draft,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.”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 long-standing principles of international law.55
The draft encountered a serious objection, however, which led to its further amendment by the International Law Commission. If every low-tide elevation “within 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.”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.”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.58 The sole pur
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;60 yet its explanation for the proposal contained not the slightest indication that any change in the basic meaning of the Article was intended. 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.61 Instead, the expert to the
“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).64 Again, however,
its area will satisfy the semicircle test only if deemed to include the waters of the Barataria Bay-Caminada Bay complex, which are separated from the outer indentation by a string of islands.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
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.
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.69 If those islands are ignored, the entrance to Barataria and Caminada Bays is sufficiently
(b) Another issue involving the semicircle test arises in East Bay in the Mississippi River Delta.72 Since East Bay does not meet the semicircle test on a closing line between its seawardmost headlands—the tip of the jetty at Southwest Pass and the southern end of South Pass—it does not qualify as a bay under
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
4. Islands at the mouth of a bay.
“For 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. 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.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 seawardmost points on the islands. This position, however, is refuted by the language of
(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.75 The purpose of
“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.”76
Louisiana‘s argument is undermined, however, by the natural effect of islands at the mouth of an indentation described in the International Law Commission Com-
Louisiana purports to find support for its position in the provision of
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.80 The United States argues
We do not agree that the face of the Convention clearly concludes the question. No language in
Moreover, there is nothing in the history of the Convention or of the international law of bays which estab-
This Court too has in the past adopted this realistic approach to similar land formations. In Louisiana v. Mississippi, 202 U. S. 1, 45-46 (1906), 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.”
6. Fringes of islands.
At several places87 the question is raised whether areas between the mainland and fringes
We have concluded that
“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.90
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.91 There was, however, too little technical information or consensus among nations on that and related subjects to allow the formulation of uniform rules.92 It was agreed, therefore, that the problem should be handled as it had been by the International
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.
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),98 and that they are therеfore inland waters notwithstanding their failure to meet the geographical requirements of Article 7 and the United States’ refusal to draw straight baselines.99 Historic
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
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
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.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
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.]
THE CHIEF JUSTICE and MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
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
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.6 In 1953 Congress, in the
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.”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
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 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
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,
the lines dividing the high seas from rivers, harbors and inland waters.”10
This 1895 law was the successor of other laws showing congressional interest in marking the boundaries between inland and outer-sea waters.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
“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.”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 off-shore oil resources.
I dissent from the Court‘s holding.
Notes
“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 Pedro, Santa Barbara, Crescent City, Isthmus Cove at Santa Barbara 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.)
There have been, for example, several recent changes in the lines. See, e. g.,
“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.”
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.”
“A number of comments and views submitted did not address themselves to the purpose for which the line of demarcation is authorized under
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.
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.
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 seawardmost 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.
The definition was explained as 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.”
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, pоrts, 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).
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, 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.
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 оr partly within three geographical miles from the line of mean lower low water on the mainland or on an island . . . .” 382 U. S. 448, 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.
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
The 1930 Conference at The Hague had adopted a similar article:
“Elevations of the sea-bed situated within the territorial sea, though only above water at low tide, are taken into consideration for the determination of the base-line 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 long-standing acceptance of this concept:
“If an elevation of the sea-bed 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 base-line 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
And see the position of the United Kingdom before the International Law Commission, n. 58, infra.
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 theoreticаlly 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.
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 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
“Where the distance between the low-water marks of the natural entrance points of a bay exceeds twenty-four miles, a straight base-line 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 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
“(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.
“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 pаrt 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.
“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.”
“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.
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. Moreоver, 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
The United States observes that under
“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 fire-arms, 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 bordеr, 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
“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. 1, 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 thаt the waters between them and the mainland are sufficiently enclosed to constitute inland waters, or they form an integral part of a land form.” Memorandum of April 18, 1961, excerpted in
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.
“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 régime 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.”
“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.
“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 base line.’
“After consulting the Committee of Experts the special rapporteur put forward a more elаborate 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
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.
“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 base line 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, 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.
The Article obviously does not encompass indentations between arms of land formed by the river but not containing it.“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.”