Portal de Periódicos da CAPES

Today's Customary International Law of the Sea

2014; Taylor & Francis; Volume: 45; Issue: 3 Linguagem: Inglês

10.1080/00908320.2014.929460

1521-0642

J. Ashley Roach,

Law, logistics, and international trade

AbstractInternational courts and tribunals, governments, and scholars over the past half-century (many in the past two decades) have identified various provisions of the 1958 and 1982 treaties on the law of the sea that are customary international law and thus binding on all states, including those not party to these treaties. This article systematically collects these opinions and identifies provisions that have not yet attracted their attention.Keywords: customary international lawlaw of the sea1958 Geneva Conventions on the Law of the SeaUN Convention on the Law of the Sea Notes1Convention on the Territorial Sea and Contiguous Zone, 29 April 1958, 516 U.N.T.S. 206; Convention on the High Seas, 29 April 1958, 450 U.N.T.S. 82; Convention on Fishing Conservation of the Living Resources of the High Seas, 29 April 1958, 559 U.N.T.S. 286; and Convention on the Continental Shelf, 29 April 1958, 499 U.N.T.S. 312.2U.N. Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397.3As of 18 September 2013, of the 166 parties to the LOS Convention, 138 are coastal or island states and 27 are landlocked. Based on data from the Division of Ocean Affairs and the Law of the Sea (DOALOS) Web site at www.un.org/Depts/los/.4Of the 30 states not party to the LOS Convention, 15 are coastal states and 15 are landlocked. The coastal states not party to the Convention include: Colombia, Iran, Israel, Peru, Turkey, the United States, and Venezuela. The number of parties to the 1958 Geneva Conventions on the Law of the Sea is relatively small: Convention on the Territorial Sea and the Contiguous Zone, supra note 1, 52 parties; Convention on the Continental Shelf, supra note 1, 58 parties; and Convention on the High Seas, supra note 1, 63 parties.5Examples include: Article 16 of the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, 15 May 2013, available at www.state.gov/r/pa/prs/ps/2013/05/209406.htm; Article 16 of the International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004, 13 February 2004, available at www.water.epa.gov/type/oceb/habitat/upload/2004_10_29_invasive_species_BWM-Treaty_36.pdf; and Article 15 of the International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001, 5 October 2001, available at www.safemedproject.org/documents/reference-documents/task1.1-important-documentation-for-maritime-administrations/afs/afs-convention-english-version/at_download/file.6Decisions of institutions created by the LOS Convention, supra note 2, such as the International Tribunal for the Law of the Sea (ITLOS), and Annexes VII and VIII arbitral tribunals are unlikely to address the first question since only parties to the Convention may invoke their jurisdiction. However, Article 293(1) of the LOS Convention requires tribunals to apply "other rules of international law not incompatible with" the LOS Convention where the Convention did not state those rules. See The "ARA Libertad" Case (Argentina v. Ghana) (Provisional Measures), 15 December 2012, and The M/V "Saiga" (No. 2) Case (St. Vincent and the Grenadines v. Guinea) (Judgment) 1 July 1999, both available at the ITLOS Web site, www.itlos.org.7United States, President's Ocean Policy Statement, 10 March 1983, available at the DOALOS Web site, supra note 3. Secretary of State Hillary Clinton specifically characterized as customary international law this point in her testimony in support of the LOS Convention before the Senate Foreign Relations Committee on 23 May 2012, available at www.state.gov/secretary/rm/2012/05/190685.htm.8Joint Statement by the United States and Soviet Union, with Uniform Interpretation of Rules of International Law Governing Innocent Passage, 2 September 1989, Law of the Sea Bulletin 14 (1989): 12–13; 28 I.L.M. 1444–1447 (1989); and American Journal of International Law 84 (1990): 239–242.9International Law Association (ILA), "Final Report of the Committee on Formation of Customary (General) International Law: Statement of Principles Applicable to the Formation of General Customary International Law (as amended at the London Conference)," Report of the Sixty–Ninth Conference, London, 2000, 712–777.10International Law Commission (ILC), "Formation and evidence of customary international law/Identification of customary international law," available at www.legal.un.org/ilc/summaries/1_13.htm. See links to the Secretariat's study that endeavored to identify elements in the previous work of the commission that could be particularly relevant to the topic, UN Doc. A/CN.4/659 (14 March 2013), and the special rapporteur's introductory report, UN Doc. A/CN.4/663 (17 May 2013).11Yoshifumi Tanaka, The International Law of the Sea (Cambridge: Cambridge University Press, 2012), 12. Turkey and Venezuela are perhaps the most prominent examples of a persistent objector to the LOS Convention, each having voted against the adoption of the Convention in 1982. They regularly vote against the annual UN General Assembly resolution on oceans and the law of the sea. Turkey's 2012 explanation reads: [I]n our opinion the Convention does not provide sufficient safeguards for special geographical situations and, as a consequence, does not take into consideration conflicting interests and sensitivities arising from special circumstances. Furthermore, the Convention does not allow States to register reservations to its articles. Although we agree with the Convention in its general intent and with most of its provisions, we are unable to become a party to it owing to those prominent shortcomings. That being the case, we cannot support a resolution that calls on States to become parties to the United Nations Convention on the Law of the Sea and to harmonize their national legislation with its provisions. UN Doc. A/67/PV.52 (12 December 2012), at 28, available at www.un.org/en/ga/search/view_doc.asp?symbol=A/67/PV.52. Venezuela objects to assertions of the universality of the LOS Convention for similar reasons. Ibid., at 27.12Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), Judgment, [2001] I.C.J. Rep. 91, para. 167.13Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, [2012] I.C.J. Rep. 666, para. 114.14North Sea Continental Shelf Cases (Federal Republic of Germany/The Netherlands; Federal Republic of Germany/Denmark), [1969] I.C.J. Rep. 28–29, paras. 37−38 and 37−45, paras. 60–81.15See Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), [1986] I.C.J. Rep. at 97–98, paras. 184–186, for a discussion of the Court's methodology in determining customary international law rules. R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd ed. (Manchester: Manchester University Press, 1999), 7, explain that "international custom" means "a general and consistent practice adopted by States," particularly the practice of states most directly concerned; and "evidence of a practice generally accepted as law," also known as opinio juris, means "the conviction that the practice is one which is either required or allowed by customary international law, or more generally that the practice concerns a matter which is the subject of legal regulation and is consistent with international law."16Tullio Treves, "Customary International Law," Max Planck Encyclopedia of Public International Law, available at www.mpepil.com, paras. 73 and 75.17Nicaragua v. United States, supra note 15, at 111 para. 212.18Qatar v. Bahrain, supra note 12, at 101, para. 201.19Ibid., at 100, para. 201.20Ibid., at 94, para. 176.21Ibid., at 110, para. 223.22Nicaragua v. Colombia, supra note 13, at 690, para. 177, and ibid., at 93, para. 174; neither opinion cites Article 2, rather just the wording of Article 2(1). In Nicaragua v. United States, supra note 15, at 111, para. 212, the Court held that the wording in Articles 2(1) and 2(2) represents customary international law.23Nicaragua v. Colombia, supra note 13, at 690, para. 177.24Qatar v. Bahrain, supra note 12, at 97, para. 184. For a detailed examination of the provisions on normal baselines, reefs, low-tide elevations, and harbor works, see ILA, "Baselines Under the International Law of the Sea," Report of the Seventy-Fifth Conference, Sofia, 2012, available at www.ila-hq.org/download.cfm/docid/C5F06515–9B22-49B6-B14D0EFEB5A80248.25The rules set out in these three paragraphs derive from the Court's judgment in the Anglo-Norwegian Fisheries Case, [1951] I.C.J. Rep. 128–143, where the Court found that the Norwegian system was not contrary to international law.26Qatar v. Bahrain, supra note 12, at 100, paras. 201 and 102, para. 208. The Court found the corresponding provision in Article 4(3) of the 1958 Territorial Sea Convention, supra note 1, to be customary international law.27The International Court in the Land, Island and Maritime Frontier Case, [1992] I.C.J. Rep. 588, para. 383, said that these provisions on bays, and Article 7 of the 1958 Territorial Sea Convention, supra note 1, "might be found to express general customary law," if the Gulf of Fonseca were a single-state bay.28Qatar v. Bahrain, supra note 12, at 100, para. 201. The Court also found that the corresponding provision in the 1958 Territorial Sea Convention, supra note 1, Article 11(1), was customary international law. The Court further found that low-tide elevations were not subject to appropriation even though the Conventions are silent on that point. Ibid., at 102, paras. 205–209. Tanaka, supra note 11, at 70, concluded there "are no customary law rules concerning the use of tidal datum."29Qatar v. Bahrain, supra note 12, at 93–94, para. 175. The Court also found that the corresponding provision in the 1958 Territorial Sea Convention, supra note 1, Article 12(1) was customary international law. Ibid., at 94, para. 176.30Ibid., at 110, para. 223. James Crawford, Brownlie's Principles of Public International Law, 8th ed. (Oxford: Oxford University Press, 2012), at 265 states: "[f]oreign ships have a right of innocent passage through the territorial sea in customary law." Ian Brownlie, Principles of Pubic International Law, 7th ed. (Oxford: Oxford University Press, 2008), 187, stated that the predecessor of Articles 17 and 18 of the LOS Convention, supra note 2, and Article 14 of the Territorial Sea Convention, supra note 1, "in substance" "corresponds to the customary law, but it is more specific in certain respects."31Nicaragua v. United States, supra note 15, at 111–112, para. 214.32U.S. Department of State telegram to U.S. Embassy Paris, 17 June 1989, excerpted in Digest of U.S. Practice in International Law 1989–1990, 445, available at www.state.gov/documents/organization/139393.pdf; U.S. State Department telegram to U.S. Embassy Caracas, January 2011, excerpted in Digest of U.S. Practice in International Law 2011, 407, available at www.state.gov/documents/organization/194081.pdf; and U.S. Diplomatic Note to Ecuador, 9 December 2011, excerpted in Digest of U.S. Practice in International Law 2011, 409. Tanaka, supra note 11, at 84, concurred.33U.S. Diplomatic Note to Denmark, July 1991, excerpted in Digest of U.S. Practice in International Law 1991–1999, 1597–1598, available at www.state.gov/documents/organization/139394.pdf; U.S. Diplomatic Note to Thailand, 28 August 2000, excerpted in Digest of U.S. Practice in International Law 2000, 704, available at www.state.gov/documents/organization/139599.pdf and www.state.gov/documents/organization/6843.doc.34Churchill and Lowe, supra note 15, at 53–56.35Crawford, supra note 30, at 283, citing Qatar v. Bahrain, supra note 12.36Ibid., at 317.37U.S. Diplomatic Notes to Denmark, July 1991, and Oman, 12 August 1991, excerpted in Digest 1991–1999, supra note 33, at 1597 and 1599. This statement, referring to Articles 17–26 and 52 of the LOS Convention was repeated in a diplomatic note to the Seychelles 28 June 2000, excerpted in Digest 2000, supra note 33, 707, and in a diplomatic note to Syria, 16 June 2004, excerpted in Digest of U.S. Practice in International Law 2004, 703, available at www.state.gov/documents/organization/139391.pdf.38Churchill and Lowe, supra note 15, at 87.39Tanaka, supra note 11, at 89.40U.S. Department of State telegram to U.S. Embassy Helsinki, 2 June 1989, excerpted in Digest 1989–1990, supra note 32, at 444.41Statement of the United States on possible civil nuclear sea shipments through the Arctic, 2 March 2001, excerpted in Digest of U.S. Practice in International Law 2001, 700, available at www.state.gov/documents/organization/139600.pdf.42Corfu Channel Case [1949] I.C.J. Rep. 244.43Churchill and Lowe, supra note 15, at 100. Tanaka, supra note 11, at 96, concurred.44Ibid., at 87.45Tanaka, supra note 11, at 80.46Nicaragua v. United States, supra note 15, at 111, para. 213.47Tanaka, supra note 11, at 81 (citations omitted) and 117. See further, at 81–83 and 117, for discussions of the impact of the coastal state's interests on this right.48See Digest of U.S. Practice in International Law 2007, 650–651, available at www.state.gov/documents/organization/147120/pdf; and "Collection of Sources on Entry into Port Under Force Majeure," available at 2001–2009.state.gov/s/l/2007/112701.htm.49U.S. Diplomatic Notes to Sudan, Venezuela, Haiti, June 1989, and Namibia, December 1990, excerpted in Digest 1989–1990, supra note 32, at 465–467 and 470.50LOS Convention, supra note 2, Article 32, provides in part "nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes."51ARA Libertad Case, supra note 6, at para. 95.52Ibid., separate opinion of Judges Wolfrum and Cot, paras. 43 and 47–50.53Communication from the French Foreign Ministry to the U.S. State Department, 28 November 2003, excepted in Digest of U.S. Practice in International Law 2004, supra note 37, at 717.54Churchill and Lowe, supra note 15, at 99. Crawford, supra note 30, at 319 concurred.55Ibid., at 99.56Corfu Channel Case, supra note 42, at 28 (emphasis in original).57U.S. Diplomatic Note to Canada, 13 June 2007, Digest 2007, supra note 48, at 638–640.58Address by RADM William L. Schachte, Jr., JAGC, USN, DOD Representative for Ocean Policy Affairs, June 1992, Digest 1991–1999, supra note 33, at 1591.59Churchill and Lowe, supra note 15, at 113. They argued that Article 16(4) of the Territorial Sea Convention, supra note 1, prohibiting the suspension of innocent passage in "straits used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State," is customary international law, cautioning that the "customary law right of passage through straits leading to the territorial sea of a third state remains controversial." Ibid., at 104.60Tanaka, supra note 11, at 107.61Letter from Assistant Legal Adviser for Oceans and International Environmental and Scientific Affairs, 4 April 1989, excerpted in Digest 1989–1990, supra note 32, at 473.62Donald R. Rothwell and Tim Stephens, The International Law of the Sea (Oxford: Hart, 2010), 189.63Ibid.64Churchill and Lowe, supra note 15, at 130.65Tanaka, supra note 11, at 109.66Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), [1984] I.C.J. Rep. 294, para. 94.67Case Concerning the Continental Shelf (Libya v Malta), [1985] I.C.J. Rep. 33, para. 34: "the institution of the exclusive economic zone, with its rule on entitlement by reason of distance, is shown by the practice of States to have become part of customary law."68Ibid.69Nicaragua v. United States, supra note 15, at 111, para. 214.70Qatar v. Bahrain, supra note 12, at 91, para. 167, and Nicaragua v. Colombia, supra note 13, at 674, para. 139. The Court reaffirmed this conclusion in Maritime Dispute (Peru v. Chile), [2014] I.C.J. Rep. para. 179.71Information provided to the Republic of Korea in 2001 regarding USNS Bowditch, excerpted in Digest 2001, supra note 32, at 698.72Crawford, supra note 30, at 277.73Ibid., at 297, referring to the Nicaragua v. United States Case, supra note 15.74Churchill and Lowe, supra note 15, at 161–162.75Ibid., at 290. See also at p. 291 for a discussion expressing doubts of a possible customary law rule requiring foreign fishing vessels be given access to any surplus in the EEZ.76Ibid., at 409–410.77Crawford, supra note 30, at 275–276.78U.S. Letter of Submittal on the Convention for the Conservation of Anadromous Stocks in the Northern Pacific, 14 May 1992, S. Treaty Doc. 102–30, excerpted in Digest International Law 1991–1999, supra note 33, at 1703–1704.79Tanaka, supra note 11, at 385.80North Sea Continental Shelf Cases, supra note 14, at 25, para. 26.81Ibid., at 29, para. 39, and 38–39, para. 63. See: Bernard Oxman, "The Preparation of Article 1 of the Convention on the Continental Shelf," Journal of Maritime Law and Commerce 3 (1972): 245.82Ibid., at 22, para. 19; 29, para. 39; 32–33, para. 47; and 38–39, para. 63.83Ibid., at 38–39, para. 63.84Ibid., at 39–40, para. 65.85Ibid.86Ibid., at 27, para. 34; 38–39, paras. 62–64; and 45, para. 81.87Jan Mayen Case, [1993] I.C.J. Rep. 58, paras. 46 and 51.88Anglo-French Continental Shelf Case (1979), 18 I.L.M. 397.89Jan Mayen Case, supra note 87, at 59, para. 47.90Tanaka, supra note 11, at 195.91Qatar v. Bahrain, supra note 12, at 111, para. 228, citing the Jan Mayen Case, supra note 87.92Libya v. Malta, supra note 67, at 55, para. 77, and Nicaragua v. Colombia, supra note 13, at 666, para. 118.93Ibid., at 55, para. 77; Qatar v. Bahrain, supra note 12, at 91, para. 167; and Nicaragua v. Colombia, supra note 13, at 674, para. 139. The Court reaffirmed this conclusion in Peru v. Chile, supra note 70, at para. 179.94Letter of Submittal, Treaty Between the United States and Mexico on the Delimitation of the Continental Shelf in the Western Gulf of Mexico Beyond 200 Nautical Miles, Washington, DC, 9 June 2000 (Article 76), S. Treaty Doc. 106–39, excerpted in Digest 2000, supra note 33, at 599, and Guidance prepared by the U.S. State Department on claims related to Antarctica, 2004 (Article 77), excerpted in Digest 2004, supra note 37, at 732.95Crawford, supra note 30, at 274.96Tanaka, supra note 11, at 133 and 134.97Ibid., at 222.98Churchill and Lowe, supra note 11, at 150. Brownlie, supra note 30, at 213, concurred.99Tanaka, supra note 11, at 140–141.100Churchill and Lowe, supra note 15, at 192.101High Seas Convention, supra note 1.102North Sea Continental Shelf Cases, supra note 14, at 40, para. 65.103Ibid. Tanaka, supra note 11, at 23 concurred regarding Article 2.2.104Churchill and Lowe, supra note 15, at 204, stated that Articles 87 and 89 are customary international law. In a submission to the IMO's Marine Environment Protection Committee, the United States, Liberia, the Marshall Islands, Singapore, the International Association of Independent Tanker Owners, the International Chamber of Shipping, and the Oil Companies International Marine Forum stated: "The historical principles of high seas freedom of navigation are founded in customary international law and memorialized in Articles 58 and 87 of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS)." IMO doc. MEPC 58/10/7, 15 August 2008, 2, para. 10, available at www.state.gov/documents/organization/138867.pdf.105Rothwell and Stephens, supra note 62, at 155, opined that Article 89 "is consistent with customary international law on this matter."106Churchill and Lowe, supra note 15, at 258, expressed doubt that the genuine link requirement in Article 5(1) of the High Seas Convention, supra note 1, represents customary international law.107Tanaka, supra note 11, at 152 and 155, stated that the principle of the exclusive jurisdiction of the flag state (Article 92(1) first sentence) is well established in customary international law.108See the discussion of the travaux préparatoires of Article 10 of the High Seas Convention, supra note 1, in Bernard Oxman, "The Duty to Respect Generally Accepted International Standards," New York University Journal of International Law and Politics 26 (1991): 109, at 122–129.109Rothwell and Stephens, supra note 62, at 161, stated that Articles 95, 96, and 236 "reflect existing customary international law with respect to sovereign immunity of states which itself is founded upon extensive jurisprudence by domestic courts and relevant municipal legislation" (footnote omitted).110Brownlie, supra note 30, at 229, stated that the definition of piracy in Article 15 of the High Seas Convention, supra note 1, is thought to represent the existing customary law. Tanaka, supra note 11, at 16,0 stated: "[u]nder customary law and Article 105 of the LOSC, every State may seize a pirate ship or aircraft and arrest suspected pirate." He made the same point at 372. For the views of the United States on the customary international law of piracy reflected in the LOS Convention, see the declaration of State Department legal adviser Harold Koh, 3 September 2010, available at www.state.gov/documents/organization/179327.pdf.111Churchill and Lowe, supra note 15, at 212, stated that Article 22 of the High Seas Convention, supra note 1, and Article 110 of the LOS Convention, supra note 2, "are generally regarded as codifying customary international law." Brownlie, supra note 30, at 232, stated that the right of approach in time of peace is recognized by customary law. Tanaka, supra note 11, at 161, wrote "[o]ne can say that the right of visit to a ship that is engaged in the slave trade represents customary law." Tanaka, at 162, provided that "[a] ship without nationality is without protection under customary law" and at 163 further notes that "[i]t is universally recognized that warships of every State may seize, and bring to a port of their own for punishment, any foreign vessel sailing under the same flag as the inspecting warship without any authorization."112Churchill and Lowe, supra note 15, at 214–215, acknowledged that the right of hot pursuit is recognized under customary international law.113Statement of U.S. representative to the UN Security Council, 9 February 1990, UN Doc. S/PV.2907 (9 February 1990) 26–37, excerpted in Digest 1989–1990, supra note 32, at 454–455.114U.S. Department of State telegram to U.S. Embassy Muscat, 6 December 1989, excerpted in Digest 1989–1990, supra note 32, at 468–469.115The M/V "Saiga" (No. 2) Case, supra note 6, at para. 155.116Crawford, supra note 30, at 301.117Ibid., at 303.118Ibid., at 307.119Rothwell and Stephens, supra note 62, at 77. See also at 271, and Tanaka, supra note 11, at 92.120Memorandum of Understanding for Cooperation Between the Ministry of Public Security of Costa Rica and the United States Coast Guard Concerning Aeronautical and Maritime Search and Rescue, San Jose, 3 July 2008: "In accordance with customary international law, solely for the purpose of rendering emergency rescue-assistance to persons, vessels or aircraft in danger or distress, when location is reasonably well known, SAR facilities of a Participant, may immediately enter into or over the territory of the other Participant, with notification of such entry made as soon as practicable," available at www.state.gov/documents/organization/138833.pdf.121Crawford, supra note 30, at 321.122North Sea Continental Shelf Cases, supra note 14, at 39–40, para. 65.123Ibid., at 40, para. 65.124Douglas R. Burnett, Tara Davenport, and Robert C. Beckman, "Overview of the International Legal Regime Governing Submarine Cables," in Submarine Cables: The Handbook of Law and Policy, eds. D. R. Burnett, R. C. Beckman, and T.M. Davenport (Leiden: Martinus Nijhoff, 2014), 65.125Nicaragua v. Colombia, supra note 13, at 674, para. 139. See the earlier contrary views in Churchill and Lowe, supra note 15, at 164; Brownlie, supra note 30, at 183; and Tanaka, supra note 11, at 67–68. The International Court in Qatar v. Bahrain, supra note 12, at 97, para. 185, said Article 121(2) "reflects customary international law."126Tanaka, supra note 11, at 387, and see 382–383.127Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, [2010] ICJ Rep. 14, 78, para. 193 (20 April), quoting Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep. 241–242, para. 29.128The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, ITLOS sep. op. Judge Wolfrum, p. 3 (3 December 2001).129Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, ITLOS Order, para. 92 (8 October 2003), quoting The MOX Plant Case, Order of 3 December 2001, para. 82. The duty to cooperate is stated in Article 197 of the LOS Convention.130Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, [2010] ICJ Rep. 14, 83, para. 204 (20 April).131Judge Laing in Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, ITLOS, sep. op. para. 16 and note 6 (27 August 1999); Judge Wolfrum in the MOX Plant Case supra n. 2.132U.S. Letters of Submittal on the Basel Convention, S. Treaty Doc. 102–5, and the Convention on Biological Diversity, S. Treaty Doc. 103–20, excerpted in Digest 1991–1999, supra note 33, at 1689 and 1765–1766.133Churchill and Lowe, supra note 15, at 369.134Ibid., at 355.135Ibid., at 351.136Ibid., at 352–353.137Tanaka, supra note 11, at 260–261.138Ibid., at 264 and 266.139Ibid., at 264.140Ibid., at 266.141ILA, "Final Report of the ILA Committee on Coastal State Jurisdiction Relating to Marine Pollution," Conclusion No. 2, Report of the Sixty-Ninth Conference, supra note 9, at 475 and 478–481.142U.S. State Department telegram, 28 February 1989, excerpted in Digest 1989–1990, supra note 32, at 478.143Churchill and Lowe, supra note 15, at 409.144See Nicaragua v. United States, supra note 15, at 97–98, paras. 184–186.