breadth of the territorial sea is, in the absence of agreement of those States, or unless another boundary line is justified by special circumstances, the median line every point of which is equidistant from the base lines from which the width of the territorial sea of each country is measured.

Comment

The delimitation of the territorial sea between two States the coasts of which are opposite each other was one of the principal tasks of the group of experts which met at the Commission's request at The Hague in April 1953. The experts made the following recommendation:

"An international boundary between countries the coasts of which are opposite each other at a distance of less than 2 T miles (T being the breadth of the territorial sea) should as a general rule be the median line, every point of which is equidistant from the base lines of the States concerned. Unless otherwise agreed between the adjacent States, all islands should be taken into consideration in drawing the median line. Likewise, drying rocks and shoals within T miles of only one State should be taken into account, but similar elevations of undetermined sovereignty, that are within T miles of both States, should be disregarded in laying down the median line. There may, however, be special reasons, such as navigation and fishing rights, which may divert the boundary from the median line. The line should be laid down on charts of the largest scale possible, especially if any part of the body of water is narrow and relatively tortuous. The Commission had considered this proposal in connexion with the delimitation of the continental shelf between two States in cases where the same continental shelf is contiguous to the territory of two or more States. The Commission took the view that the boundary of the continental shelf should be drawn according to the same principles as those to be adopted for the delimitation of the territorial sea. The Commission endorsed the proposals of the experts and took them as the basis of draft article 7, paragraph 1, concerning the continental shelf. It felt, however, that the provision should not be too detailed but should retain a certain latitude. Accordingly, it disregarded certain details mentioned by the experts. (On this question, see paragraph 82 of the Commission's report on its fifth session (A/2456)).

The Commission felt it should follow this precedent in respect of the delimitation of the territorial sea and adopted an article which follows very closely the provisions of draft article 7, paragraph 1, relating to the continental shelf (A/2456, paragraph 62).

The Commission's draft articles relating to the continental shelf contain a general arbitration clause (A/2456, paragraph 62, article 8), which provides that disputes which may arise between States concerning the interpretation or application of the articles in question should be submitted to arbitration at the request of any of the Parties. As mentioned in paragraph 86 of document A/2456, the clause also covers boundary disputes connected with draft article 7 relating to the continental shelf.

It is realized that some provision for arbitration is also needed for

the purposes of the application of article 15 above concerning the limits of the territorial sea. Since the Commission has decided to hold over for the time being all provisions relating to the application of the articles relating to the territorial sea, it did not draft an article comparable to draft article 8 concerning the continental shelf.

Article 16

DELIMITATION OF THE TERRITORIAL SEA OF TWO ADJACENT STATES

The boundary of the territorial sea between two adjacent States is drawn, in the absence of agreement between those States or unless another boundary line is justified by special circumstances, by application of the principle of equidistance from the base lines from which the width of the territorial sea of each of the two countries is measured.

Comment

The situation described in this article may be regulated in various ways.

Firstly, it may be possible to consider extending outwards towards the sea the land frontier up to the outer limit of the territorial sea. This line can only be used if the angle between the land frontier and the coast is a right angle; if the angle is an acute angle it is inapplicable.

Another solution would be to draw a line at right angles to the coast at the intersection of the land frontier and the coast line. This method is open to criticism if the coast line curves in the vicinity of the intersection. In this case the line drawn at right angles might meet the coast at another point.

A third solution would be to adopt as a demarcation line the geographical parallel of the point at which the land boundary meets the coast. However that solution is not applicable in all cases.

A fourth solution might be provided by a line drawn at right angles to the general direction of the coastline. The adoption of this line was recommended by, inter alia, the Belgian Government, in reply to the circular letter of the Secretary-General dated 13 November 1952 (A/CN.4/71, pages 4 and 5). The Norwegian Government drew attention to the arbitration award of 23 October 1909, in a dispute between Norway and Sweden, where the statement of reasons contains the following sentence: "The delimitation shall be made by tracing a line perpendicularly to the general direction of the coast" (A/CN.4/71, page 14). The Swedish Government referred to the same decision (A/CN.4/71/Add.1, page 3).

The group of experts was unable to support this last method of drawing the boundary line. It agreed that it was often impracticable to establish any "general direction of the coast" and the result would depend on the "scale of the charts used for the purpose and . . how much coast shall be utilized in attempting to determine any

1 Decision of the Permanent Court of Arbitration in the Matter of the Maritime Boundary Dispute between Norway and Sweden, Oct. 23, 1909, The Hague; American Journal of International Law, vol. IV (1910), pp. 226-236.

general direction whatever". Consequently, since the method of drawing a line at right angles to the general direction of the coastline is too vague for the purposes of the law, the best solution seems to be the median line which the committee of experts suggested. Such a line should be drawn according to the principle of equidistance from the respective coastlines (see the reply of the French Government, A/CN.4/71/Add.2, pages 2 and 3). Where the coast is straight, a line drawn according to this method will coincide with one drawn at right angles to the coast at the intersection of the land frontier and the coastline. If, however, the coast is curved or irregular, the line takes the contour into account while avoiding the difficulties of the problem of the general direction of the coast.

The Commission had already expressed support for the opinion of the experts in the matter of the delimitation of the continental shelf between two adjacent States (see A/2456, draft article 7, paragraph 2, relating to the continental shelf).

It followed the same method in the matter of the delimitation of the territorial sea. The observation made at the end of the comment on article 15 also applies to this article.

CHAPTER 111

RIGHTS OF PASSAGE

Article 17

MEANING OF THE RIGHT OF PASSAGE

1. Passage means navigation through the territorial sea for the purpose either of traversing that sea without entering inland waters, or of proceeding to inland waters, or of making for the high sea from inland waters.

2. Passage is not innocent if a vessel makes use of the territorial sea of a coastal State for the purpose of committing any act prejudicial to the security or public policy of that State or to such other of its interests as the territorial sea is intended to protect.

3. Passage includes stopping and anchoring, but in so far only as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress.

Comment

This article follows the lines of the regulation proposed by SubCommittee II of the 1930 Conference, but the Commission considered that "fiscal interests" a term which according to the 1930 comments should be interpreted very broadly as including all matters relating to customs and to export, import and transit prohibitions-could be included in the more general expression "such other of its interests as the territorial sea is intended to protect". This expression comprises, inter alia, questions relating to immigration, customs and health as well as the interests enumerated in article 21.

This chapter applies only in time of peace; rights of passage in time of war are reserved.

No provision in this chapter is meant to affect the rights and obligations of Members of the United Nations under the Charter.

SECTION A: VESSELS OTHER THAN WARSHIPS

Article 18

RIGHTS OF INNOCENT PASSAGE THROUGH THE TERRITORIAL SEA

Subject to the provisions of these regulations, vessels of all States shall enjoy the right of innocent passage through the territorial sea. Comment

This article lays down that the vessels of all States have the right of innocent passage through the territorial sea. It reiterates a principle recognized by international law and confirmed by the 1930 Conference.

The conditions governing the exercise of this right are set forth in the articles which follow. Some members of the Commission argued that, since the coastal State has sovereignty in the territorial sea, it would be more logical to specify the duties of coastal States with respect to innocent passage and not to make those duties appear as exceptions to a right of passage of other States. The Commission. preferred to follow the method recommended by the 1930 Conference in order to stress the importance it attaches to the right of passage.

Article 19

DUTIES OF THE COASTAL STATE

1. The coastal State is bound to use the means at its disposal to ensure respect in the territorial sea for the principle of the freedom of communication and not to allow the said sea to be used for acts contrary to the rights of other States.

2. The coastal State is bound to give due publicity to any dangers to navigation of which it has knowledge.

Comment

This article confirms the principles which were upheld by the International Court of Justice in its judgment of 9 April 1949 in the Corfu Channel case between the United Kingdom and Albania.1

Article 20

RIGHT OF PROTECTION OF THE COASTAL STATE

1. The coastal State may take the necessary steps in the territorial sea to protect itself against any act prejudicial to the security or 1 International Court of Justice Reports, 1949, pp. 4 ff.

public policy of that State or to such other of its interests as the territorial sea is intended to protect, and, in the case of vessels proceeding to inland waters, against any breach of the conditions to which the admission of those vessels to those waters is subject.

2. The coastal State may suspend temporarily and in definite areas of its territorial sea the exercise of the right of innocent passage on the ground that that is necessary for the maintenance of public order and security. In this case the coastal State is bound to give due publicity to the suspension.

Comment

In the same way as article 5 drafted by Sub-Committee II of the 1930 Conference, this article gives the coastal State the right to verify, if necessary, the innocent character of the passage and to take the steps necessary to protect itself against any act prejudicial to its security, public order, customs interests, import, export and transit prohibitions, and so forth. In exceptional cases even a temporary suspension of the right of passage is permissible, if compelling reasons connected with public order or general security so require. Although it is arguable that this power was in any case implied in paragraph 1 of the article, the Commission considered it desirable to mention it expressly in paragraph 2 which specifies that only a temporary suspension in definite areas is permissible. The Commission is of the opinion that the article states the international law in force.

Article 21

DUTIES OF FOREIGN VESSELS DURING THEIR PASSAGE

Foreign vessels exercising the right of passage shall comply with the laws and regulations enacted by the coastal State in conformity with these regulations and other rules of international law and, in particular, as regards:

(a) The safety of traffic and the protection of channels and buoys; (b) The protection of the waters of the coastal State against pollution of any kind caused by vessels;

(c) The protection of the products of the territorial sea;

(d) The rights of fishing, hunting and analogous rights belonging to the coastal State.

Comment

International law has long recognized the right of the coastal State to enact in the general interest of navigation special regulations applicable to vessels exercising the right of passage through the territorial sea. The principal powers which international law has hitherto recognized as belonging to the coastal State for this purpose are defined in this article.