236
To this end, I believe it is appropriate to distinguish the issue of the status of the
Bay from other aspects of the Arbitral Tribunal’s decision. First of all, a separate
issue is certainly that of the regime for the use of the Bay, which, pursuant to Article
4(1)(b) of the Arbitration Agreement, was to be determined on the basis of a different, wider set of rules and principles. Secondly, a distinction must be drawn between,
on the one hand, the question of the delimitation of the waters in the Bay and, on the
other hand, the question of whether it is possible to draw a closing line across the
mouth of a bay whose coasts belong to two or more States, which is actually a preliminary question. After all, the Tribunal itself dealt with the “status of the Bay”
50
separately from the “delimitation within the Bay”.
51
However, these two questions might still be regarded as closely linked. One of
the most radical arguments against the notion of a multi-State bay seems to be that
there is no rule, neither in international treaty law nor in customary law, for the
delimitation of internal waters, or even that such a notion is impossible and cannot
exist. Judge Oda put the matter clearly in his dissenting opinion appended to the
ICJ’s 1992 judgment in El-Salvador/Honduras, when he stated that “the internal
waters of one State cannot about the internal waters of another State”.
52
One can certainly agree with the eminent Judge that the 1958 or the 1982
Conventions contain no provisions governing the delimitation of internal waters, in
particular between States with opposed or adjacent coasts. Indeed, Article 15
UNCLOS and the identical Article 12 TSC concern only the delimitation of the territorial sea. On this point, however, legal opinion is divided.
That seems to reflect a more general disagreement in the literature on whether it
is possible to regard internal waters as included within “the realm of the international law of the sea”.
53
Some legal writers contend that internal waters are subject
to the exact same regime as applies in the rest of the State’s territory and, therefore,
that their delimitation should be governed by the rules on territorial (rather than
maritime) delimitation.
54
Many others note that, “considering that coastal States
possess even more extensive powers in their internal waters than in their territorial
sea, it appears to be possible to apply, by analogy or a fortiori, the same triple
rule”.
55
It has also been maintained that the reference to an ‘historic title’ within the
meaning of Article 15 UNCLOS may imply the existence of internal waters or territorial sea “according to whether the sovereignty exercised over them in the course
of the development of the historic title was sovereignty as over internal waters or
50 Ibidem, paras 866–885.
51 Ibidem, paras 886–913.
52 ICJ, Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
Intervening), Dissenting opinion of Judge Oda, para. 24 (emphasis added).
53 Kohen and Gómez Pulisich (2017), maintain that UNCLOS envisages a “comprehensive legal
regime” for internal waters.
54 See Papanicolopulu (2005), p. 10, fn. 9.
55 Tanaka (2015), p. 200. See also Caflisch (1991), p. 442, Vukas (2007), pp. 553–557, Trümpler
(2017), pp. 89–90.
A. Insolia
To this end, I believe it is appropriate to distinguish the issue of the status of the
Bay from other aspects of the Arbitral Tribunal’s decision. First of all, a separate
issue is certainly that of the regime for the use of the Bay, which, pursuant to Article
4(1)(b) of the Arbitration Agreement, was to be determined on the basis of a different, wider set of rules and principles. Secondly, a distinction must be drawn between,
on the one hand, the question of the delimitation of the waters in the Bay and, on the
other hand, the question of whether it is possible to draw a closing line across the
mouth of a bay whose coasts belong to two or more States, which is actually a preliminary question. After all, the Tribunal itself dealt with the “status of the Bay”
50
separately from the “delimitation within the Bay”.
51
However, these two questions might still be regarded as closely linked. One of
the most radical arguments against the notion of a multi-State bay seems to be that
there is no rule, neither in international treaty law nor in customary law, for the
delimitation of internal waters, or even that such a notion is impossible and cannot
exist. Judge Oda put the matter clearly in his dissenting opinion appended to the
ICJ’s 1992 judgment in El-Salvador/Honduras, when he stated that “the internal
waters of one State cannot about the internal waters of another State”.
52
One can certainly agree with the eminent Judge that the 1958 or the 1982
Conventions contain no provisions governing the delimitation of internal waters, in
particular between States with opposed or adjacent coasts. Indeed, Article 15
UNCLOS and the identical Article 12 TSC concern only the delimitation of the territorial sea. On this point, however, legal opinion is divided.
That seems to reflect a more general disagreement in the literature on whether it
is possible to regard internal waters as included within “the realm of the international law of the sea”.
53
Some legal writers contend that internal waters are subject
to the exact same regime as applies in the rest of the State’s territory and, therefore,
that their delimitation should be governed by the rules on territorial (rather than
maritime) delimitation.
54
Many others note that, “considering that coastal States
possess even more extensive powers in their internal waters than in their territorial
sea, it appears to be possible to apply, by analogy or a fortiori, the same triple
rule”.
55
It has also been maintained that the reference to an ‘historic title’ within the
meaning of Article 15 UNCLOS may imply the existence of internal waters or territorial sea “according to whether the sovereignty exercised over them in the course
of the development of the historic title was sovereignty as over internal waters or
50 Ibidem, paras 866–885.
51 Ibidem, paras 886–913.
52 ICJ, Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
Intervening), Dissenting opinion of Judge Oda, para. 24 (emphasis added).
53 Kohen and Gómez Pulisich (2017), maintain that UNCLOS envisages a “comprehensive legal
regime” for internal waters.
54 See Papanicolopulu (2005), p. 10, fn. 9.
55 Tanaka (2015), p. 200. See also Caflisch (1991), p. 442, Vukas (2007), pp. 553–557, Trümpler
(2017), pp. 89–90.
A. Insolia