Potter Stewart

“ The United States argues that the Convention on the Territorial Sea and the Contiguous Zone flatly prohibits the drawing of bay-closing lines to islands. A true bay, it is said, is an 'indentation' within the mainland, and it cannot be created by the 'projection' of an island or islands from the coast. Moreover, the rule of Article 7 (3) that the area of an indentation lies between the closing line and 'the low-water mark around the shore of the indentation' contemplates a perimeter of dry land unbroken by any opening other than the bay's entrance. ”

“ While there is not complete accord on the definition of historic inland waters, [28] it is universally agreed that the reasonable regulation of navigation is not alone a sufficient exercise of dominion to constitute a claim to historic inland waters. On the contrary, control of navigation has long been recognized as an incident of the coastal nation's jurisdiction over the territorial sea. ”

“ 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. ”

“ Louisiana argues that, just as under Article 7 (5) a 24-mile line can be drawn within a bay whose mouth is more than 24 miles wide, [73] so also can a line which satisfies the semicircle test be drawn within a bay whose mouth is too wide to meet that test.
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. ”

“ There is no suggestion in the Convention that a mouth caused by islands is to be located in a manner any different from a mouth between points on the mainland that is, by 'a line joining the low-water marks of (the bay's) natural entrance points.' The 'natural entrance points' may, and in some instances in the Lake Pelto-Terrebonne Bay-Timbalier Bay complex do, coincide with the outermost edges of the islands. But there is no automatic correlation, and the headlands must be selected according to the same principles that govern the location of entrance points on the mainland. ”

“ 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. ”

“ While there is little objective guidance on this question to be found in international law, the question whether a particular island is to be treated as part of the mainland would depend on such factors as its size, its distance from the mainland, the depth and utility of the intervening waters, the shape of the island, and its relationship to the configuration or curvature of the coast. ”

“ 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] Outside the territorial sea are the high seas, which are international waters not subject to the dominion of any single nation. ”

“ Just as the 'presence of islands at the mouth of an indentation tends to link it more closely to the mainland,' so also do the islands tend to separate the waters within from those without the entrances to the bay. Even waters which would be considered within the bay and therefore 'landlocked' in the absence of the islands are physically excluded from the indentation if they lie seaward of the mouths between the islands. It would be anomalous indeed to say that waters are part of a bay even though they lie outside its natural entrance points. ”

“ It was agreed, therefore, that the problem should be handled as it had been by the International Court of Justice in the Fisheries Case: each nation was left free to draw straight baselines along suitable insular configurations if it so desired. [93] In the light of this resolution of the problem, it is clear that the drafters did not intend to leave island fringes beyond the scope of the Convention altogether. The deliberate decision was that such island formations are not to be treated differently from any other islands [94] unless the coastal nation decides to draw straight baselines. ”

“ Of course, the general understanding has been-and under the Convention certainly remains that bays are indentations in the mainland, [82] and that islands off the shore are not headlands but at the most create multiple mouths to the bay. [83] In most instances and on most coasts it is no doubt true that islands would play only that restricted role in the delimitation of bays. But much of the Louisiana coast does not fit the usual mold. ”

“ 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. ”

“ How unlike a true bay a body of water can be and still qualify as a historic bay we need not decide, for all of the areas of the Mississippi River Delta which Louisiana claims to be historic inland waters are indentations sufficiently resembling bays that they would clearly qualify under Article 7 (6) if historic title can be proved.↑ See supra, at 24.↑ See n. 27, supra.↑ In this the United States appears to be correct. ”

“ Opinion of Attorney General Randolph on the seizure of the ship 'Grange' in Delaware Bay, 1 Op.Asst.Gen. 32 (1793) . See generally McDougal & Burke, supra, n. 26, at 360-361.↑ It is one thing to say that the United States should not be required to take the novel, affirmative step of adding to its territory by drawing straight baselines. It would be quite another to allow the United States to prevent recognition of a historic title which may already have ripened because of past events but which is called into question for the first time in a domestic lawsuit. ”