242
of their combined needs”.
86
It must be emphasized, however, that the premise of
Strohl’s reasoning is that a general rule preventing the riparian States from jointly
claiming the bay and agreeing upon a division of its waters as inland waters, does
not exist. If, despite the (limited) protests of some States and what still may appear
to be the prevailing view in the literature, if we accept that two or more States are
free to agree on the closing of a bay, it seems that such agreement must include the
selection of a closing line for the bay—which implies agreement on the bay’s
entrance points and on the legal regime in the waters within and outside it—and,
where appropriate, provide for a delimitation of those waters.
87
The States’ freedom, which derives from the absence of a rule containing an express prohibition,
88
must be tempered by the principles, mentioned earlier, of freedom of navigation to
and from the bay and free access from the high seas for the coastal States concerned.
Where the latter claim a bay as internal waters, their agreement on these fundamental aspects is, in principle, a requirement for the admissibility of the claim.
In addition to the above, multinational bays have also been claimed by coastal
States as “historic bays”, a concept that is not defined in the relevant international
conventions, which, as is well known, refer to it only in order to exclude the corresponding legal regime from their scope (as is the case, for instance, with Articles
10(6) and 15 UNCLOS).
89
Hence, the regime of historic waters, a category to which
historic bays belong, is an area of the law of the sea that falls solely into the realm
of customary law. This regime was the subject of a 1962 study by the UN Secretariat
and has been applied on several occasions by national
90
and international courts,
including in the Gulf of Fonseca case. In the light of a 1962 study by the UN
Secretariat of the relevant case law of the Central American Court of Justice (CACJ)
and of the subsequent decisions of the ICJ, including those on claims over multinational bays based on historic titles, it seems that the admissibility of a claim depends
not only on an absence of protest by third States, but also and more importantly on
the existence of an agreement between the coastal States.
91
Indeed, in 1992 the
Court took care to emphasize: “This unanimous finding that the Gulf of Fonseca is
an historic bay with the character of a closed sea presents now no great problem. All
three coastal States continue to claim this to be the position”. And it added: “The
86 Strohl (1963), p. 376.
87 See Gioia (1993), p. 135.
88 But see Lathrop (2015), p. 83.
89 A definition of “historic waters” may be found in the famous dictum of the ICJ in the Fisheries
Case (Fisheries Case, p. 130). The Court addressed the issue again in Tunisia/Libya, where it
observed that “the matter continues to be governed by general international law which does not
provide for a single ‘regime’ for ‘historic waters’ or ‘historic bays’, but only for a particular
regime for each of the concrete, recognized cases of ‘historic waters’ or ‘historic bays’” (ICJ,
Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, 24 February 1982, para. 100, italics mine). For a discussion of these notions and the corresponding legal regimes, see Bouchez
(1964), pp. 199–302, Gioia (1990, 1993), and Symmons (2008).
90 The US Supreme Court in particular. In this regard, see Symmons (2008).
91 Juridical Régime of Historic Waters, including Historic Bays, Study Prepared by the Secretariat,
cit. (supra, fn. 56), at p. 21, paras 147–148.
A. Insolia
of their combined needs”.
86
It must be emphasized, however, that the premise of
Strohl’s reasoning is that a general rule preventing the riparian States from jointly
claiming the bay and agreeing upon a division of its waters as inland waters, does
not exist. If, despite the (limited) protests of some States and what still may appear
to be the prevailing view in the literature, if we accept that two or more States are
free to agree on the closing of a bay, it seems that such agreement must include the
selection of a closing line for the bay—which implies agreement on the bay’s
entrance points and on the legal regime in the waters within and outside it—and,
where appropriate, provide for a delimitation of those waters.
87
The States’ freedom, which derives from the absence of a rule containing an express prohibition,
88
must be tempered by the principles, mentioned earlier, of freedom of navigation to
and from the bay and free access from the high seas for the coastal States concerned.
Where the latter claim a bay as internal waters, their agreement on these fundamental aspects is, in principle, a requirement for the admissibility of the claim.
In addition to the above, multinational bays have also been claimed by coastal
States as “historic bays”, a concept that is not defined in the relevant international
conventions, which, as is well known, refer to it only in order to exclude the corresponding legal regime from their scope (as is the case, for instance, with Articles
10(6) and 15 UNCLOS).
89
Hence, the regime of historic waters, a category to which
historic bays belong, is an area of the law of the sea that falls solely into the realm
of customary law. This regime was the subject of a 1962 study by the UN Secretariat
and has been applied on several occasions by national
90
and international courts,
including in the Gulf of Fonseca case. In the light of a 1962 study by the UN
Secretariat of the relevant case law of the Central American Court of Justice (CACJ)
and of the subsequent decisions of the ICJ, including those on claims over multinational bays based on historic titles, it seems that the admissibility of a claim depends
not only on an absence of protest by third States, but also and more importantly on
the existence of an agreement between the coastal States.
91
Indeed, in 1992 the
Court took care to emphasize: “This unanimous finding that the Gulf of Fonseca is
an historic bay with the character of a closed sea presents now no great problem. All
three coastal States continue to claim this to be the position”. And it added: “The
86 Strohl (1963), p. 376.
87 See Gioia (1993), p. 135.
88 But see Lathrop (2015), p. 83.
89 A definition of “historic waters” may be found in the famous dictum of the ICJ in the Fisheries
Case (Fisheries Case, p. 130). The Court addressed the issue again in Tunisia/Libya, where it
observed that “the matter continues to be governed by general international law which does not
provide for a single ‘regime’ for ‘historic waters’ or ‘historic bays’, but only for a particular
regime for each of the concrete, recognized cases of ‘historic waters’ or ‘historic bays’” (ICJ,
Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, 24 February 1982, para. 100, italics mine). For a discussion of these notions and the corresponding legal regimes, see Bouchez
(1964), pp. 199–302, Gioia (1990, 1993), and Symmons (2008).
90 The US Supreme Court in particular. In this regard, see Symmons (2008).
91 Juridical Régime of Historic Waters, including Historic Bays, Study Prepared by the Secretariat,
cit. (supra, fn. 56), at p. 21, paras 147–148.
A. Insolia