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Extension of the Territorial Sea of the Kingdom of the Netherlands

Published online by Cambridge University Press:  21 May 2009

H.G. de Jong
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Extract

The Netherlands has traditionally supported a three-mile limit for the breadth of the territorial sea. Even when, especially after the Second World War, a large number of states laid claim to territorial sea limits exceeding three miles, the Netherlands continued to adhere to the position that any unilateral extension of the territorial sea to twelve miles or more was inconsistent with international law. This position, which was defended both before and during the First and Second United Nations Conferences on the Law of the Sea (1958 and 1960), was consistent with the dominant Dutch interest at that time, viz., keeping the breadth of the territorial sea to a minimum, with as few exclusive fishing rights as possible beyond this limit.

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Articles
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Netherlands International Law Review , Volume 30 , Issue 2 , August 1983 , pp. 129 - 145
Copyright
Copyright © T.M.C. Asser Press 1983

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References

1. I.e., three nautical miles (3x1852 metres).

2. Text in the Netherlands Treaty Series “Tractatenblad” Trb. 1959, no. 123. Special reference should be made to Ait. 24 of the Convention, under which the breadth of the territorial sea plus the contiguous zone is limited to twelve miles.

3. At this time it is difficult to assess the significance of the new Convention. It should be noted that the Conference was unable to achieve consensus in April 1982: four countries (the United States, Venezuela, Israel and Turkey) voted against the Draft Convention while seventeen countries abstained. On 10 december 1982, when the Conference was completed in Jamaica, 117 states, including the Netherlands, signed the Convention. Twenty-four states (including the United States, the Federal Republic of Germany, Italy, Belgium, the United Kingdom, Venezuela and Peru) refused to sign. The Convention will enter into force 12 months after the date of deposit of the sixtieth instrument of ratification or accession.

4. Koers, A.W., “De onderhandelingen over een nieuw internationaal recht van de zee: schipbreuk of redding” [The negotiations on a New International Law of the Sea: Shipwreck or Rescue], Nederlands Juristenblad, (1979) pp. 220–221Google Scholar. Art. 3 of the Convention is as follows: “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.” The text of the Convention may be found in Doc. A/CONF. 62/122, 21 ILM (1982) p. 1261 et seq.

5. Parliamentary papers 17654 and 17673 (R1219).

6. Kent, H.S.K., “The historical origins of the three-mile limit”, 48 AJIL (1954), p. 537Google Scholar.

7. De dominio maris Dissertatio, Ch. 2.

8. François, J.P.A., Handboek van het volkenrecht [Handbook of International Law], 2nd ed. (Zwolle 1949) vol. 1, p. 128Google Scholar.

9. van Goethem, M., Het statuut van de territoriale zee [The Statute of the Territorial Sea] (1963) pp. 42, 43Google Scholar.

10. Staatsblad, [Netherlands Bulletin of Acts, Orders and Decrees], Stb. 1884, no. 40. English version in U.N. Legislative Series, Law and regulations on the regime of the high seas, vol. 1, 1951, p. 179Google Scholar.

11. Act of 26 October 1889, Stb. 1889, no. 135.

12. Stb. 1908, no. 311. English translation in U.N. Legislative Series, Laws and regulations on the regime of the territorial sea, p. 530. The Act of 1908 has subsequently been replaced by the Fisheries Act 1963, Stb. 1963, no. 312.

13. Proclamatie betreffende de inachtneming en de handhaving door de Nederlandse Regering van volstrekte onzijdigheid ter zake van den oorlogstoestand, die is ontstaan tussen eenige vreemde Mogendheden [Proclamation concerning the Observance and Maintenance by the Netherlands Government of Strict Neutrality in the State of War which has arisen among certain Foreign Powers], Stb. 1939, no. 188.

14. Ind.Slbl. 1935.no. 497.

15. See Koers, A. W., in “The Netherlands and International fisheries law”, in International Law in the Netherlands, vol. 1, 1978, pp. 317–318Google Scholar.

16. Or in Dutch case law. See for example the judgment by the Court of The Hague of 27 November 1981 concerning the motor-vessel “Magda Maria” sailing under a Panamanian flag, which was seized on the high seas nine miles off the Dutch coast on 1 August 1981 with transmitting equipment and facilities.

17. François, , op. cit., p. 129Google Scholar; Goethem, Van, op. cit., p. 27.Google Scholar

18. François, , op. cit., p. 133Google Scholar.

19. Reports on the Conferences in publications of the Ministry of Foreign Affairs, nos. 56 and 64.

20. Report on the Second Conference, Ministry of Foreign Affairs, no. 64, p. 21. When a number of countries (China, Iraq, Libya, Iran and Panama) unilaterally extended their territorial seas to twelve miles in between the two Law of the Sea Conferences, the Netherlands Government emphasized that it regarded such an extension as incompatible with international law. Loc. cit., p. 9.

21. Trb. 1964, no. 84; 3 ILM (1964) p. 469.

22. Yearbook of the Ministry of Foreign Affairs 1967–1968, p. 185.

23. See for example Riphagen, W., “Nieuwe ontwikkelingen in het internationale zeerecht” [New Developments in the International Law of the Sea] Internationale Spectator (1980) p. 629Google Scholar.

24. Cf., the synoptical table concerning the breadth and juridical status of the territorial sea and adjacent zones drawn up on the occasion of the Second Conference on the Law of the Sea, A/CONF. 19/4, included in the Ministry of Foreign Affairs publication no. 64, p. 28.

25. Soons, A.H.A., “Het nieuwe Zeerecht en de Noordzee” [The New Law of the Sea and the North Sea], Marineblad (1981) p. 455Google Scholar.

26. Art. 3, as referred to in n. 4.

27. Art. 1 of the Convention on the Territorial Sea and the Contiguous Zone; Art. 2 of the new Convention.

28. Art. 14 of the Convention on the Territorial Sea and the Contiguous Zone.

29. Arts. 19–21 of the Convention.

30. Convention. Art. 34 et seq.

31. See for example the issue ”Nederland en de Noordzee” [The Netherlands and the North Sea] of Marineblad of November (1981) which is devoted to the subject. The issue contains twelve articles dealing with the new law of the sea, the economic importance of the North Sea, shipping, fisheries, oil and gas exploitation, aviation, environmental pollution, maritime strategic aspects and the management and administration of the North Sea. On the risks posed to the North Sea environment by current and future oil and gas exploitation activities see also’ Werfc groep Noordzee, Noordzee Energie [North Sea Energy] (1981). A lot of information is contained in the report on “Harmonization of North Sea Policy”, which the Government submitted to the States General in May 1982 (Parliamentary papers, no. 17408).

32. In 1980 the Dutch fishing industry was worth over Dfl. 576 million; in terms of direct and indirect employment (the latter including for example commerce and industry) the fishing industry accounted for 15,500 jobs (Langstraat, D.J., ”De Nederlandse visserif op de Noordzee en aangrenzende wateren “ [The Netherlands Fishing Industry in the North Sea and Adjoining Waters] Marineblad (1981) p. 483Google Scholar.

33. Stb. 1977, no. 345. This Kingdom Act covers Dutch territory in both Europe and the Netherlands Antilles.

34. Stb. 1977, no. 665.

35. Art. 2 of the Convention on the Continental Shelf; Art. 77 of the new Convention.

36. Act of 21 April 1810, Bulletin des Lois, no. 285.

37. Act of 3 May 1967, Stb. 1967, no. 258.

38. Act of 23 September 1965, Stb. 1965, no. 478.

39. Decree of 7 February 1967, Stb. 1967, no. 74.

40. Communication by the Commission to the Council fo 12 May 1978, COM (78) 184 def., concerning the pollution of the sea by the transportation of hydrocarbons (”Amoco Cadiz”).

41. Garcia-Amador, F.V., “The Latin American Contribution to the Development of the Law of the Sea”, 68 AJIL (1974) p. 33Google Scholar.; Hjertonsson, K., The New IAW of the Sea, Influence of the Latin American States on Recent Developments of the Law of the Sea, (1973) espially pp. 20–41Google Scholar. of the Latin American States on Recent Developments of the Law of the Sea, (1973) especially pp. 20–41.

42. U.N. Legislative Series, National Legislation and Treaties Relating to the IMW of the Sea, p. 599.

43. Cf., the contributions on the subject by T.M. Monzón, Een onafhankelijk Antillen: een groot zeegebied [An Independent Antilles: One Large Sea Area] and Soons, A.H.A., Commentaar [Commentary] in Meijers, H., ed., Volkenrechtelijke aspecten van Antilliaanse onafhankelijkheid [international Legal Implications of Antillean Independence] (Alphen a/d Rijn 1980)Google Scholar.

44. See n. 33.

45. Publicatieblad [Official Bulletin of the Netherlands Antilles] 1976, no. 251.

46. In the Ordinance, “petroleum” is taken to mean both crude oil and natural gas. The regime laid down under the Curaçao Mining Act still applies to the exploitation of resources other than petroleum in the Saba Bank area.

47. See for example Amerasinghe, D.F., “The Problem of Archipelagos in the International Law of the Sea”, 23 ICLQ (1974) pp. 539–546Google Scholar; Dubner, B.H., The Law of Territorial Waters of Mid-Ocean Archipelagos and Archipelagic States, (1976)Google Scholar; Monzón, T.M., ”Archipelago: een oudidee, maar een nieuw concept”, Tijdschrift voor AntUliaans Recht, 01 1982, p. 1Google Scholar.

48. Report of the Netherlands Delegation to the Second Session of the Third United Nations Conference on the Law of the Sea, Part I, Annex 3, pp. 2–3.

49. For the situation in relation to the windward and leeward islands see the contributions by Monzón and Soons referred to in n. 43 on pp. 231, 232, 240, 273 and 274.

50. Convention, Arts. 46–54.

51. As noted in the Explanatory Memorandum to the Kingdom Act for the Approval of the Border Agreement between the Kingdom of the Netherlands and the Republic of Venezuela, Proceedings of the Second Chamber no. 15117 (R 1101) no. 3, p. 3.

52. This is illustrated by an article by T.M. Monzón on the Netherlands Antilles and the international law of the sea entitled “Independence is a State of Mind”, Tijdschrift voor Antilliaans Recht, (1981) p. 282.

53. The text of the statement on the subject by the Prime Minister of 26 October 1979 has been included as an annex to the article by Soons referred to in n. 43 (p. 298).

54. Annex to the Proceedings of the Second Chamber 1979–1980, no. 583, p. 1141.

55. Explanatory Memorancum to the two Bills, 17654, no. 3, p. 6, and 17673 (R1219), no. 3 p. 4.

56. Nor are the provisions concerning the operative date of the two Bills the same. The Act on the limits of the Netherlands territorial sea will come into force on the first day of the third month following the date of publication of the Staatsblad in which it is promulgated (Section 8, subsection 1 of the Bill). The Kingdom Act concerning the extension of the territorial sea of the Kingdom in the Netherlands Antilles will come into force as from the date on which the relevant Kingdom Ordinance comes into effect (Section 2, subsection 1 of the Bill).

57. See for example Fauchille, P., Traité de droit international public, 1922–1926, Part I, vol. 2, pp. 193–194Google Scholar.

58. Art. 3 of the 1958 Convention; Art. 5 of the new Convention.

59. The baselines are drawn as arcs of great circles, an internationally accepted method in the case of comparatively short connecting lines.

60. See Bouchez, L.J. “The Netherlands and the Law of International Rivers”, in 1 International Law in the Netherlands (1978) para. 6Google Scholar.

61. Trb. 1960, no. 69.

62. On this point the relevant provision in the Convention on the Territorial Sea and the Contiguous Zone (Art. 12, para. 1) runs as follows:

”Where the coasts of two States are opposite or adjacent to each other, neither of the States is entitled, failing agreement between them to the contrary, to extend its territoria’ sea beyond the median line every point of which is equidistant from the nearest point on the baselines from which the breadth of the territorial seas of each of the two States is measured. The provisions of this paragraph shall not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance with this provisions”. This provisions has been incorporated virtually as it stands in the new Convention (Art. 15).

63. See the article by L.J. Bouchez referred to in n. 60, para. 4.

64. Consistent with the earlier Dutch standpoint as outlined in the Explanatory Memorandum to the Bill regulating title to the territorial seabed, Annex, Proceedings of the Second Chamber 1979–1980. no. 15819, no. 3, p. 4.

65. The Explanatory Memorandum notes that the maintenance of the status quo means that the general revision of mining legislation for land areas and the continental shelf, which is in the process of preparation, will not be anticipated. The relationship between mining and environmental legislation will be made more explicit in that framework.

66. On the basis of Section 14 subsection 3 of the Charter for the Kingdom of the Netherlands (Act of 28 October 1954, Stb. 1954, no. 503, P.B. 1954, no. 121, as amended by Kingdom Act of 22 November 1975, Stb. 1975, no. 617, P.B. 1975, no. 223), the legislation with respect to the Netherlands is in the form of a national act. On the basis of the same section, the form adopted for the Netherlands Antilles is that of a Kingdom act.

67. See in this respect the article by Monzón referred to in n. 43, p. 230 (n. 12).

68. Trb. 1978, no. 61, Trb. 1979, no. 11. In the case of the Kingdom of the Netherlands, the Agreement came into force on 15 December 1978.

69. Art. 1 of the Agreement.

70. To cover this eventuality guarantees of unrestricted passage and overflight to and from Venezuela are contained in Art. 4 of the Agreement.

71. Colombos, C.J., The International Law of the Sea, 4 th edn. (London 1959) p. 94Google Scholar.

72. Art. 222 Convention.

73. See, for example, the article by Soons referred to in n. 25.

74. A draft Convention for the protection and development of the marine environment of the Wider Caribbean Region is in preparation. The draft Convention is expected to be completed in 1983.

75. Cf., the article by Monzón referred to in n. 43 (p. 257).