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Published online by Cambridge University Press: 17 January 2008
At first sight, the Territorial Sea (Amendment) Order 19981 is an unremarkable instrument. Its explanatory note states that it amends the Schedule to the Territorial Waters Order in Council 19642 ‘by adding a new baseline between the Mull of Kintyre and Laggan, as well as by making minor changes to [three points scheduled in the 1964 Order] which result from the publication of a new, larger scale chart of the area’. In fact, the note is a model of economy of information disguising the difficulties which led to the Order's addition of a further straight baseline, enclosing the Firth if Clyde, to the system of straight baselines starting in the north at Cape Wrath and which, before the above amendment was made, had ended in the south at the Mull of Kintyre. This is the story behind the addition of the new segment. The sketch map indicates the general cartography of the relevant area.
1 Statutory Instruments 1998, No 2564. This instrument was promulgated under power conferred by the Territorial Sea Act 1987.
2 Statutory Instruments 1965, p. 6452A. This instrument was promulgated under prerogative power.
3 The expression ‘Firth of Clyde’ is ambiguous. In this paper it is used as a convenient label to describe the entire water area of the indentation with its headlands at the Mull of Kintyre and Galloway. It is sometimes used in a geographically more limited sense, however, to describe only the waters east and north-east of the island of Arran. Thus the authoritative West Coast of Scotland Pilot, 11th edn (1974), 35, stated that ‘the Firth of Clyde is entered between Turnberry Point and Pladda’. The 12th edition (1995) at 43 ff, is not explicit but implies that the waters south of Arran are in the approaches to the Firth. On Admiralty Chart 2724, the Firth of Clyde is depicted as a feature separate from Kilbrannan Sound, Inchmarnock Water, Bute Sound and Lower Loch Fyne, all these being also within the above indentation. On Admiralty Chart 2199 the area of waters north of Ailsa Craig is described as ‘Entrance to Firth of Clyde’.
4 See TW Fulton, The Sovereignty of the Sea (1911), 233–9.
5 For a brief mention of Scottish authorities relating to waters intra fauces terrae, see Mortensen v Peters (1906) 8 F 93, 102.
6 The events preceding this enactment, particularly the opinion of the Law Officers of the Crown in Scotland dated 30 July 1888, are described in Bouchez, LJ, The Regime of Bays in International Law (Leyden: AW Sythoff, 1964), 34–7Google Scholar. See also McNair, Lord, International Law Opinions, vol I (Cambridge: Cambridge University Press, 1956), 356–9Google Scholar and Public Record Office, London (PRO) reference FO 881/6075*.
7 The original papers concerning this opinion are on PRO reference FO 83/1603. See also McNair, loc cit, 359.
8 McNair, loc cit, 360–1.
9 PRO reference FO 372/2285 [Foreign Office paper T 14730/39/380 of 1926].
10 Ibid [Admiralty Hydrographic Department paper M 2951/26].
11 PRO reference CAB 24/227 [CP 37(32)].
12 Scottish Record Office reference AF 62/1699/6.
13 PRO reference CAB 129/63 [C (53) 287].
14 ICJ Reports (1951), 116.
15 House of Commons Debates, 5th series, vol 522, cols 36–7 (Minister of State, Foreign Office).
16 United Nations Treaty Series, vol 516, 205. The relevant provisions of the 1958 Convention are also in the United Nations Convention on the Law of the Sea, 1982 (‘the 1982 Convention’) to which the United Kingdom is a party. Art 4 of the 1958 Convention is Art 7 of the 1982 Convention and Art 7 of the 1958 Convention is Art 10 of the 1982 Convention, with the clarificatory addition of the word ‘nautical’ as inserted in square brackets in the text above.
17 The term probably owes its origin to the Committee of Experts who advised the International Law Commission on technical matters concerning the law of the sea (see Yearbook of the International Law Commission (1953), vol. II, 78).
18 PRO reference CAB 134/2189 [LS (61) 1st Meeting].
19 PRO reference CAB 134/2185 [LS (61) 1].
20 Ibid. [LS (61) 5].
21 PRO reference CAB 134/2190 [LS (62) 1st Meeting]. See also LS (62) 2 of 20 Sept 1962 on CAB 134//2185.
22 PRO reference CAB 134/2190 [LS (62) 3rd Meeting].
23 Ibid [LS (62) 5]. While preparing this memorandum, the Lord Chancellor noticed the line on the Admiralty map running across the mouth of the Firth of Clyde and asked whether this was a baseline or a closing line. The reply, provided by the Cabinet Office, was that it was a closing line, thus implying that it was based on Article 7 (bays) and not Art 4 (the straight baseline system) (PRO reference LCO 2/7799 [file 3735/1/2]).
24 PRO reference CAB 134/2190 [LS (62) 3rd Meeting]. The reference should have been to the Territorial Sea Convention.
25 PRO reference CAB 134/1926 [FL (63) 4].
26 Archives of the United Kingdom Hydrographic Office, Taunton, reference HW 258/63.
27 Ibid. The original letter sent to Simpson has not been located in the open Foreign Office archives.
28 A full set of these circulated Admiralty papers is on the file of the Department of Agriculture and Fisheries for Scotland (Scottish Record Office reference AF 62/4743 [file FED/1/2]). As early as 14 Feb 1964 a memorandum had been presented to the Cabinet Committee on the Law of the Sea by the First Lord of the Admiralty and the Minister of State for Foreign Affairs which attached maps showing proposed new baselines including a straight line closing the Firth of Clyde. These did not indicate coordinates (CAB 134/2519 (Part 1) [SL (64) 2]).
29 The coordinates for Belfast Lough linked the mainland at Magee ‘Island’ with the mainland at Foreland Point by way of straight lines through New Island and Copeland Island.
30 Probably the point named Rubha na Lice on the 1:50,000 Landranger Map 68 (grid reference 589071).
31 United Nations Treaty Series, vol 581, 57 and 76.
32 CAB 129/117 [CP (64) 93].
33 CAB 128/38, part 2 [CM (64) 26, minute 5].
34 In his judgment in Post Office v Estuary Radio Ltd [1967] 2 Lloyd's Reports 34, 39, O'Connor J noted that Lieutenant-Commander Beazley had ‘provided technical advice in connection with the preparation of the Territorial Waters Order-in-Council, 1964’.
35 PRO reference FO 371/176333 [file GW 2/165].
36 Art 16 of the 1982 Convention provides that coastal States shall publicise the baselines of the territorial sea, including bays and straight baseline systems, on charts or in lists of geographical coordinates.
37 SI, 1989 No 2307.
38 The account below is taken from the Sheriff's undated written reasons for decision.
39 Information provided to the author by Mr CM Carleton.
40 The two-leg line has been used to divide landward and seaward areas in the Firth for the purposes of the Petroleum (Production) (Seaward Areas) Regulations 1988, Schedule 1, Table 1 (SI, 1988 No 1213). The points on Sanda Island are Black Point on the northern coast and Sanda Island Lighthouse on the southern coast.
41 R v Kent Justices, ex parte Lye [1967] 2 QB 153 (Divisional Court); Post Office v Estuary Radio Ltd. [1967] 2 Lloyd's Reps 34 (Queen's Bench Division) and [1968] 2 QB 740 (Court of Appeal).
42 [1968] 2 QB 740, 758.
43 Commander Kennedy was a member of the Committee of Experts referred to in n 17 above.
44 [1967] 2 Lloyd's Rep 34, 40.
45 [1968] 2 QB 740, 758.
46 [1967] 2 Lloyd's Rep 34, 43.
47 Ibid 39.
48 [1968] 2 QB 740, 755.
49 Ibid, 755–6.
50 Ibid, 759.
51 Ibid, 757.
52 [1967] 2 QB 116.
53 It would be necessary, of course, to make a new ‘semi-circle’ calculation, this time based on the sum of the lengths of both lines excluding the length of Sanda Island. The area enclosed by the application of that test would no doubt have qualified as a ‘juridical bay’. It is curious to note that in The Wanderer II whereas the singular was not considered to include the plural in respect of the words ‘a straight line’ in Art 4(c), the plural was considered to include the singular in respect of the word ‘islands’ in Art 4(b). There are other islands in the vicinity of Sanda Island, eg Sheep Island, but Sanda Island alone was used as a stepping-stone for the two-leg line.
54 Beazley, PB, ‘Maritime limits and baselines: a guide to their delineation’, Hydrographic Society Special Publication No 2, 3rd edn (1987), at 20.Google Scholar
55 It is remarkable that some authors who have analysed the bay articles in the 1958 or 1982 Conventions have concluded—wrongly it is submitted—that where there are islands forming multiple mouths it is the aggregate of the lengths of the lines between the mouths and not the length of the single straight line between the natural entrance points on the ‘mainland’ which is the yardstick against which the 24-mile maximum criterion is to be assessed, notwithstanding the absence from paragraph 4 of the bay articles of any words compelling such a conclusion (see, eg Shalowitz, AL, Shore and Sea Boundaries, vol I (Washington: US Department of Commerce, 1962), 225Google Scholar; RD Hodgson and LM Alexander, Towards an Objective Analysis of Special Circumstances, Law of the Sea Institute Occasional Paper No 13 (1972), 12–20; O'Connell, DP, The International Law of the Sea, ed Shearer, I, vol I (Oxford: Clarendon Press, 1982), 402–6Google Scholar; Churchill, RR and Lowe, AV, The Law of the Sea, 3rd edn (Manchester: Manchester University Press, 1999), 42Google Scholar. Surprisingly, Westerman, GS, The Juridical Bay (Oxford: Oxford University Press, 1987), 159–76Google Scholar, does not address the point). Implied in this view is that these lines likewise form the alignment of the baseline. Significantly in the light of his involvement in the 1964 events, Beazley, too, adopts the above view although he bases his conclusion on practical advantages rather than on his interpretation of the 1982 Convention text (Beazley, loc cit, 25–6). In some circumstances where islands result in a multi-mouth bay the issue can be avoided, eg a particular island close to a mainland coast may be regarded as a ‘headland’ and thus deemed to be a natural entrance point on the mainland, or a ‘fringe’ of islands may permit the application of the straight baseline system.
The Commonwealth Secretariat's The UN Convention on the Law of the Sea, 1982: Guide for National Policy Making, Legislation and Administration, Book 2 (1989), 20, takes what is submitted to be the correct view.
56 Beazley, loc cit, 24–6, argues that where there is an island within the bay it is permissible for the aggregate of the lengths of the two lines joining it to the mainland to constitute the 24-mile line. Thus the line can have more than one leg. However, his argument appears to be based more on the practical advantage of such a conclusion than on a close interpretation of the provisions of the 1982 Convention which form the background to his paper.
57 West Coast of Scotland Pilot, 12th edn (1995), 48.
58 This provides that the 1982 Convention shall prevail, as between States Parties, over the 1958 Geneva Conventions.