UNITED STATES v. LOUISIANA(1969)
In United States v. Louisiana, 363 U.S. 1 , the Court held that by the Submerged Lands Act of 1953 the United States had quit-claimed to Louisiana lands underlying the Gulf of Mexico within three geographical miles of the coastline, the United States being declared entitled to the lands further seaward. The decree and the Act defined "coast line" as "the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters." The United States and Louisiana filed cross-motions for a supplemental decree designating the boundary of the lands under the Gulf owned by Louisiana, the parties differing primarily with respect to that part of the coastline consisting of "the line marking the seaward limit of inland waters." The United States contends that the definitions of "inland waters" contained in the international Convention on the Territorial Sea and the Contiguous Zone (hereafter Convention) should determine the location of that line, while Louisiana urges that the governing boundary is a line it calls the "Inland Water Line" which was fixed by the Commandant of the Coast Guard pursuant to an 1895 federal statute which directed the drawing of "lines dividing the high seas from rivers, harbors, and inland waters." Louisiana urges, alternatively, that the decree proposed by the United States reflects an overly strict construction of the Convention's provisions. Held:
Archibald Cox argued for the United States on cross-motion for supplemental decree as to the State of Louisiana. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Martz, Louis F. Claiborne, Roger P. Marquis, and George S. Swarth.
MR. JUSTICE STEWART delivered the opinion of the Court.
In United States v. Louisiana, 363 U.S. 1 , the Court held that by the Submerged Lands Act of 1953 1 the United States had quitclaimed to Louisiana the lands underlying the Gulf of Mexico within three geographical miles of the coastline. 2 The United States was declared [394 U.S. 11, 15] entitled to the lands further seaward. In the decree, as in the Submerged Lands Act, "coast line" was defined as "the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters." 3 We reserved jurisdiction "to entertain such further proceedings, enter such orders and issue such writs as may . . . be deemed necessary or advisable to give proper force and effect to this decree." 4 Before the Court now are cross-motions by the United States and Louisiana 5 for a supplemental decree designating the boundary of the lands under the Gulf owned by Louisiana. 6 The segments of that boundary line that [394 U.S. 11, 16] lie three miles outward from "that portion of the coast which is in direct contact with the open sea" are for the most part easily determinable. The controversy here is primarily over the location of that part of the coastline that consists of "the line marking the seaward limit of inland waters."
More than three years ago, in United States v. California, 381 U.S. 139 , we held that Congress had left to the Court the task of defining "inland waters," and we adopted for purposes of the Submerged Lands Act the definitions contained in the international Convention on the Territorial Sea and the Contiguous Zone, ratified by the United States in 1961. 7 The United States asserts that the same definitions should determine the location of the "line marking the seaward limit of inland waters" of Louisiana. Louisiana, on the other hand, contends that this line has already been determined pursuant to an 1895 Act of Congress which directed the drawing of "lines dividing the high seas from rivers, harbors and [394 U.S. 11, 17] inland waters," and has proposed a decree based upon this contention. Alternatively, Louisiana argues that, even assuming the applicability of the definitions contained in the Convention on the Territorial Sea and the Contiguous Zone, the decree proposed by the United States reflects too restrictive a construction of the Convention's provisions in derogation of relevant principles of international law.
Comprehensive congressional regulation of maritime navigation began with the Act of April 29, 1864, 8 which promulgated rules applicable to all vessels of domestic registry on any waters. These rules were patterned on emerging international standards, and when most other maritime nations subsequently changed their rules, the United States Congress in 1885 enacted conforming "Revised International Rules and Regulations" to govern American ships "upon the high seas and in all coast waters of the United States, except such as are otherwise provided for." 9 The 1864 Act was therefore repealed except as to navigation "within the harbors, lakes, and inland waters of the United States." 10 In 1889 the International Maritime Conference drafted new International Rules, which were promptly adopted by Congress. 11 Article 30 of those rules provided that "[n]othing in these rules shall interfere with the operation of a special rule, duly made by local authority, relative to the navigation of any harbor, river, or inland waters." 12 [394 U.S. 11, 18]
The United States already had in the 1864 Act such special inland rules for ships of American registry. In order to clarify the areas and ships to which the International and Inland Rules would respectively apply, 13 Congress in 1895 provided that the rules of the 1864 Act were to govern the navigation of all vessels "on the harbors, rivers and inland waters of the United States." 14 The 1895 Act went on to provide:
Louisiana argues initially that the 1895 Act is in pari materia with the Submerged Lands Act. Congress, it is said, must have contemplated that a technical term such as "inland waters" should have the same meaning in different statutes. The phrase appears, however, in quite different contexts in the two pieces of legislation. While the Submerged Lands Act established boundaries between the lands of the States and the Nation, Congress' only concern in the 1895 Act was with the problem of navigation in waters close to this Nation's shores. There is no evidence in the legislative history that it was the purpose of Congress in 1953 to tie the meaning of the phrase "inland waters" to the 1895 statute. For [394 U.S. 11, 20] instance, during the Senate Committee hearings on the Submerged Lands Act, the following exchange took place between Senator Anderson and the Assistant Attorney General of Louisiana:
We further decided in United States v. California that the provisions of the Convention on the Territorial Sea and the Contiguous Zone were "the best and most workable definitions available," 381 U.S., at 165 , and we adopted them for purposes of the Submerged Lands Act. Yet Louisiana asserts that the Court is not precluded by the California decision from adopting the "Inland Water Line" in this case. Essentially the argument is that the Convention was not intended either to be the exclusive determinant of inland or territorial waters or to divest a nation of waters which it had long considered subject to its sole jurisdiction. By the long-standing, continuous, and unopposed exercise of jurisdiction to regulate navigation on waters within the "Inland Water Line," the United States is said to have established them as its inland waters under traditional principles of international law. Alternatively, Louisiana suggests that, even assuming the exclusivity of the Convention on the Territorial Sea and the Contiguous Zone, the "Inland Water Line," by virtue of this assertion of sovereignty, has created "historic bays" within the exception of [394 U.S. 11, 22] Article 7 of the Convention. 22 We have concluded, however, that nothing in either the enactment of the 1895 Act or its administration indicates that the United States has ever treated that line as a territorial boundary.
Under generally accepted principles of international law, the navigable sea is divided into three zones, distinguished by the nature of the control which the contiguous nation can exercise over them. 23 Nearest to the nation's shores are its inland, or internal waters. 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 [394 U.S. 11, 23] Outside the territorial sea are the high seas, which are international waters not subject to the dominion of any single nation. 26
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. But it has also been recognized that other areas of water closely connected to the shore, although they do not meet any precise geographical test, may have achieved the status of inland waters by the manner in which they have been treated by the coastal nation. As we said in United States v. California, it is generally agreed that historic title can be claimed only when the "coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations." 381 U.S., at 172 . 27 [394 U.S. 11, 24]
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. Article 17 of the Convention on the Territorial Sea and the Contiguous Zone embodies this principle in its declaration that "[f]oreign ships exercising the right of innocent passage [in the territorial sea] shall comply with the laws and regulations enacted by the coastal State . . . and, in particular, with such laws and regulations relating to transport and navigation." 29 [394 U.S. 11, 25] Because it is an accepted regulation of the territorial sea itself, enforcement of navigation rules by the coastal nation could not constitute a claim to inland waters [394 U.S. 11, 26] from whose seaward border the territorial sea is measured. 30
But even if a nation could base a claim to historic inland waters on its continuous regulation of navigation, 31 [394 U.S. 11, 27] it is clear that no historic title can accrue when the coastal nation disclaims any territorial reach by such an exercise of jurisdiction. For at least the last 25 years, during which time Congress has twice re-enacted both the International and Inland Rules, 32 the responsible officials have consistently disclaimed any but navigational significance to the "Inland Water Line." When the line was for the first time completed off the entire Louisiana shore, the Commandant of the Coast Guard declared:
There is no indication that in enacting the navigation rules and authorizing the designation of an "Inland Water Line" Congress believed it was also determining the Nation's territorial boundaries. 36 Indeed, it seems unlikely that Congress, if it had intended that result, would have delegated such authority to the Secretary of the Treasury, to be exercised in his discretion "from time to time" and by reference to navigational aids rather than in accordance with prevailing principles of international law. Consistently with their limited statutory purpose, the lines have always been drawn, and [394 U.S. 11, 31] frequently altered, solely with regard to contemporary navigational needs. 37 And in the only instance called to our attention in which the "Inland Water Line" was [394 U.S. 11, 32] mentioned by the United States in its international relations, the State Department in 1929 cautioned that the "lines do not represent territorial boundaries, but are for navigational purposes." 38 We must therefore reject Louisiana's contention that the United States has historically treated the "Inland Water Line" as the territorial boundary of its inland waters. 39
Finally, Louisiana argues that only adoption of the current "Inland Water Line" will fulfill the "requirements of definiteness and stability which should attend any congressional grant of property rights belonging to the United States." United States v. California, 381 U.S. 139, 167 . Any line drawn by application of the rules of the Convention on the Territorial Sea and the Contiguous Zone would be ambulatory and would vary with the frequent changes in the shoreline. This will lead, it is said, to continuing uncertainty and endless litigation concerning the location of the Louisiana coastline [394 U.S. 11, 33] under the Submerged Lands Act, because the shore-line is constantly shifting as the Mississippi River and violent Gulf storms remold the soft, silt-like delta soil. This problem was not encountered on the rock-hard, comparatively straight California coast, and Louisiana contends that there is nothing in the Submerged Lands Act which requires that inland waters be given the same definition for every part of the United States coast. 40 Just as the Court was free in United States v. California to adopt the definition which best solved the problems of that case, the argument concludes, we are free in this case to adopt a different definition more suited to the peculiarities of the highly unstable Louisiana shore.
We do not, however, so broadly construe our function under the Submerged Lands Act. Our adoption in [394 U.S. 11, 34] United States v. California of the definitions contained in the Convention on the Territorial Sea and the Contiguous Zone was "for purposes of the Submerged Lands Act," and not simply for the purpose of delineating the California coastline. Congress left to this Court the task of defining a term used in the Act, not of drawing state boundaries by whatever method might seem appropriate in a particular case. It would be an extraordinary principle of construction that would authorize or permit a court to give the same statute wholly different meanings in different cases, and it would require a stronger showing of congressional intent than has been made in this case to justify the assumption of such unconfined power. Finally, we note that if the inconvenience of an ambulatory coastline proves to be substantial, there is nothing in this decision which would obstruct resolution of the problems through appropriate legislation or agreement between the parties. Such legislation or agreement might, for example, freeze the coastline as of an agreed-upon date.
Even if we were free to adopt varying definitions of inland waters for different portions of the United States coast, we are not convinced that the policy in favor of a certain and stable coastline, strong as it is, would necessarily outweigh countervailing policy considerations under the Submerged Lands Act. We recognized in California the desirability of "a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations." 381 U.S., at 165 . The adoption of the "Inland Water Line" for Louisiana would be completely at odds with this desideratum. Moreover, adoption of a new definition of inland waters in this case would create uncertainty and encourage controversy over the coastlines of other States, unsure as to which, if either, of the two definitions [394 U.S. 11, 35] would be applied to them. This uncertainty might be compounded by the absence of any "Inland Water Line" around much of the United States. And we cannot assume that, in enacting the Submerged Lands Act, Congress envisioned that the ownership of potentially vast resources might thereafter be determined "from time to time" by the Coast Guard, acting solely in the interest of navigational convenience.
For these reasons, we conclude that that part of Louisiana's coastline which, under the Submerged Lands Act, consists of "the line marking the seaward limit of inland waters," is to be drawn in accordance with the definitions of the Convention on the Territorial Sea and the Contiguous Zone.
Many issues divide the parties concerning the application of the provisions of the Convention on the Territorial Sea and the Contiguous Zone to the Louisiana coast. Some of these issues, which involve simply interpretation of the Convention, we have been able to decide on the basis of the materials now before us. Others, however, are primarily factual questions involving the construction and application of the Convention's provisions with respect to particularized geographical configurations. Several of these factual disputes cannot be properly resolved without evidentiary hearings, and as to others we think it would be wise at all events in this technical and unfamiliar area to have the benefit, preliminarily, of the judgment of a detached referee. Accordingly, we have decided to refer to a Special Master the task of resolving in the first instance several of the particularized disputes over the precise [394 U.S. 11, 36] boundary between the submerged Gulf lands belonging to the United States and those belonging to Louisiana.
1. Dredged channels. A recurring question in the application of the Convention to the Louisiana coast is whether dredged channels in the Gulf leading to inland harbors comprise inland waters. 41 In support of its contention that dredged channels, as such, are inland waters, Louisiana relies principally on Article 8 of the Convention:
The United States argues more convincingly, however, that Article 8 applies only to raised structures. The discussions of the Article by the 1958 Geneva Conference and the International Law Commission reveal that the term "harbour works" connoted "structures" and "installations" which were "part of the land" and which in [394 U.S. 11, 37] some sense enclosed and sheltered the waters within. 42 It is not enough that the dredged channels may be an "integral part of the harbour system"; even raised structures which fit that description, such as lighthouses, are not considered "harbour works" unless they are "connected with the coast." 43 Thus, Article 8 provides that [394 U.S. 11, 38] "harbour works . . . shall be regarded as forming part of the coast" (emphasis supplied), a description which hardly fits underwater channels. As part of the "coast," the breadth of the territorial sea is measured from the harbor works' low-water lines, attributes not possessed by dredged channels. 44 We must therefore conclude that Article 8 does not establish dredged channels as inland waters.
Louisiana also contends that the legislative history of the Submerged Lands Act reveals a clear congressional purpose to include such channels as inland waters. Early versions of the bill contained a definition of the term "inland waters" for the purposes of the Act, and that [394 U.S. 11, 39] definition included "channels." 45 The definition was later deleted, but Louisiana contends that the sole purpose of the deletion was to avoid a construction of the definition which would exclude other areas from inland waters. 46 In United States v. California, 381 U.S. 139, 150 -160, we reviewed at length the pertinent legislative history and concluded that the only sure inference which could be drawn from the deletion of the definition was that Congress thought the highly technical question should be left to the courts. We remain [394 U.S. 11, 40] of that view. Moreover, it is far from clear that the word "channels" in the deleted definition encompassed dredged channels in the open sea. From the context in which the word appears, it is far more likely that the definition referred only to bodies of water bordered by land. 47
2. The territorial sea of low-tide elevations. Article 11 of the Convention on the Territorial Sea and the Contiguous Zone deals with the subject of low-tide elevations:
The United States argues that the phrase "at a distance not exceeding the breadth of the territorial sea from the mainland" does not refer to the territorial sea as a situs. Rather it uses the width of the territorial sea only as a measurement of distance - a circumlocution made necessary by the failure of the 1958 Geneva Conference [394 U.S. 11, 42] to agree upon a uniform width. 49 And that distance - three miles in this case - is to be measured from the "mainland," a term which does not comprise baselines across bodies of water but is limited to the low-water mark on dry land. Louisiana, on the other hand, interprets the Article as covering all low-tide elevations situated anywhere within the territorial sea. And the drawing of baselines across the mouths of bays is an integral step in the determination of the area of the territorial sea. Moreover, Louisiana argues, the term "mainland" does include inland waters. The theory of the Convention, it is argued, reflects a long-standing principle of international law - that bays and other inland waters are practically assimilated to the dry land and treated for all legal purposes as if they were a part of it. 50
The parties agree that Article 11 on its face is not wholly dispositive of the issue, and that the language does not preclude either construction. 51 Each party, therefore, relies on the origins of the Article and the statements of its drafters. When the provision was first proposed to the International Law Commission in 1952, it read as follows:
The draft encountered a serious objection, however, which led to its further amendment by the International Law Commission. If every low-tide elevation "within [394 U.S. 11, 45] the territorial sea" was to have a territorial sea of its own, then
The United States contends that by changing the language of the International Law Commission draft to its present form in the Convention, the Geneva Conference intended also to change its meaning. Precisely the opposite conclusion, however, flows from an inspection of the history of the Convention. The amendment was advanced by the United States; yet its explanation for the proposal contained not the slightest indication that any change in the basic meaning of the Article was intended. 60 Surely there would have been some discussion of the reference to the territorial sea as a measure of distance rather than as a situs had it been the purpose of the United States or the Conference to alter so significantly the meaning of prior drafts and the existing international consensus. 61 Instead, the expert to the [394 U.S. 11, 47] Secretariat of the Conference explained "that all the proposals on article 11 corresponded entirely to the intentions of the International Law Commission." 62 We therefore conclude that low-tide elevations situated in the territorial sea as measured from bay-closing lines are part of the coastline from which the three-mile grant of the Submerged Lands Act extends. 63 [394 U.S. 11, 48]
3. The semicircle test. Article 7 (2) defines a bay as follows:
Louisiana argues that the area of tributary bays or other indentations must be included within that of the primary indentation. Article 7 (3) provides that "[f]or the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points." (Emphasis supplied.) The italicized phrase, it is said, constitutes a direction to follow the low-water line wherever it goes, including into other indentations, in drawing the perimeter of the primary bay. The general rule is well recognized, Louisiana argues, by the United States [394 U.S. 11, 51] Department of State among others, that the area of bays within bays is included in calculating the semicircle test. 66
The United States does not reject the notion that some indentations which would qualify independently as bays may nonetheless be considered as part of larger indentations for purposes of the semicircle test; but it denies the existence of any rule that all tributary waters are so includible. Article 7 (2), it emphasizes, refers to "that indentation." The inner bays can be included, therefore, only if they can reasonably be considered part of the single, outer indentation. And that cannot be said of inland waters which, like Vermilion Bay and Barataria Bay-Caminada Bay, are wholly separated from the outer body of water and linked only by narrow passages or channels. 67 [394 U.S. 11, 52]
For purposes of this lawsuit, we find it unnecessary to provide a complete answer to the questions posed by the parties. "Outer Vermilion Bay," if it is to qualify under the semicircle test, must include the waters of Vermilion Bay. Yet Vermilion Bay is itself a part of the much larger indentation which includes West and East Cote Blanche Bays and Atchafalaya Bay, and which opens to the sea between Marsh Island and Point au Fer. Recognition of the unitary nature of this larger indentation follows from Louisiana's insistence that the low-water mark must be followed around the entire indentation. If, as Louisiana posits, the western headland of the indentation is at Tigre Point, then a closing line across its mouth to Point au Fer far exceeds the 24-mile limit imposed by Article 7 (4). 68 It follows that "Outer Vermilion Bay" is neither itself a bay nor part of a larger bay under the Convention on the Territorial Sea and the Contiguous Zone.
We have concluded, on the other hand, that the area of "Ascension Bay" does include the Barataria Bay-Caminada Bay complex and therefore meets the semicircle test. Those inner bays are separated from the larger "Ascension Bay" only by the string of islands across their entrances. 69 If those islands are ignored, the entrance to Barataria and Caminada Bays is sufficiently [394 U.S. 11, 53] wide that those bays and "Ascension Bay" can reasonably be deemed a single large indentation even under the United States' approach. 70 Article 7 (3) provides that for the purposes of calculating the semicircle test, "[i]slands within an indentation shall be included as if they were part of the water areas of the indentation." The clear purpose of the Convention is not to permit islands to defeat the semicircle test by consuming areas of the indentation. We think it consistent with that purpose that islands should not be permitted to defeat the semicircle test by sealing off one part of the indentation from the rest. Treating the string of islands "as if they were part of the water areas" of the single large indentation within which they lie, "Ascension Bay" does meet the semicircle test. 71
(b) Another issue involving the semicircle test arises in East Bay in the Mississippi River Delta. 72 Since East Bay does not meet the semicircle test on a closing line between its seawardmost headlands - the tip of the jetty at Southwest Pass and the southern end of South Pass - it does not qualify as a bay under Article 7 of the Convention on the Territorial Sea and the Contiguous Zone. There is a line which can be drawn within East [394 U.S. 11, 54] Bay, however, so as to satisfy the semicircle test. 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. The enclosed indentation must by its own features qualify as a bay.
The United States argues that the area within East Bay enclosed by Louisiana's proposed line does not constitute a bay because there is no "well-marked indentation" with identifiable headlands which encloses "land-locked" waters. Indeed, it is said, there is not the slightest curvature of the coast at either asserted entrance point. We do not now decide whether the designated portion of East Bay meets these criteria, but hold only that they must be met. We cannot accept Louisiana's argument that an indentation which satisfies the semicircle test ipso facto qualifies as a bay under the Convention. Such a construction would fly in the face of Article 7 (2), which plainly treats the semicircle test as a minimum requirement. And we have found nothing in the history of the Convention which would support so awkward a construction.
4. Islands at the mouth of a bay. Article 7 (3) of the Convention on the Territorial Sea and the Contiguous Zone provides:
(a) 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. This position, however, is refuted by the language of Article 7 (3), which provides for the drawing of baselines "across the different mouths" (emphasis supplied), not across the [394 U.S. 11, 56] most seaward tips of the islands. 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.
(b) Louisiana argues in the alternative that even if the closing lines should not necessarily connect the most seaward points on the islands, in no event should they be drawn landward of a direct line between the entrance points on the mainland. 75 The purpose of Article 7 (3) is expressed in the following passage from the Commentary of the International Law Commission:
Louisiana's argument is undermined, however, by the natural effect of islands at the mouth of an indentation described in the International Law Commission Commentary. [394 U.S. 11, 58] 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. No doubt there could be islands which would not, whether because of their size, shape, or relationship to the mainland, be said to create more than one mouth to the bay. But where, as in the Lake Pelto-Terrebonne Bay-Timbalier Bay complex, a string of islands covers a large percentage of the distance between the mainland entrance points, the openings between the islands are distinct mouths outside of which the waters cannot sensibly be called "inland."
Louisiana purports to find support for its position in the provision of Article 7 (3) that "[i]slands within an indentation shall be included as if they were part of the water areas of the indentation." This provision would preclude drawing lines to an island wholly within the indentation, 79 Louisiana argues, and it should therefore [394 U.S. 11, 59] also preclude drawing closing lines to any part of an island landward of a straight line between the mainland headlands. We cannot, however, accept this construction of the Convention. An island which is intersected by a direct mainland-to-mainland closing line is not "within [the] indentation." Nor can an island which forms the mouth of an indentation be "within" it. [394 U.S. 11, 60] Article 7 (3) clearly distinguishes between islands which, by creating multiple mouths, form a part of the perimeter of the bay, and those which, by their presence wholly "within" the bay, are treated as part of its water areas.
In sum, we hold that where islands intersected by a direct closing line between the mainland headlands create multiple mouths to a bay, the bay should be closed by lines between the natural entrance points on the islands, even if those points are landward of the direct line between the mainland entrance points.
5. Islands as headlands of bays. With respect to many of the bays on the Louisiana coast the question is presented whether a headland of an indentation can be located on an island. 80 The United States argues [394 U.S. 11, 61] 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. Finally, the United States argues, such an opening between the island and the mainland would deprive the enclosed waters of the "landlocked" quality required in a true bay.
We do not agree that the face of the Convention clearly concludes the question. No language in Article 7 or elsewhere positively excludes all islands from the meaning of the "natural entrance points" to a bay. Waters within an indentation which are "landlocked" despite the bay's wide entrance surely would not lose that characteristic on account of an additional narrow opening to the sea. That the area of a bay is delimited by the "low-water mark around the shore" does not necessarily mean that the low-water mark must be continuous. 81
Moreover, there is nothing in the history of the Convention or of the international law of bays which establishes [394 U.S. 11, 62] that a piece of land which is technically an island can never be the headland of a bay. 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 [394 U.S. 11, 63] role in the delimitation of bays. But much of the Louisiana coast does not fit the usual mold. It is marshy, insubstantial, riddled with canals and other waterways, and in places consists of numerous small clumps of land which are entirely surrounded by water and therefore technically islands. With respect to some spots along the Louisiana coast even the United States has receded from its rigid position and recognized that these insular configurations are really "part of the mainland." The western shore of the Lake Pelto-Terrebonne Bay-Timbalier Bay indentation is such a formation, and is treated by the United States as part of the coast.
This Court too has in the past adopted this realistic approach to similar land formations. In Louisiana v. Mississippi, 202 U.S. 1, 45 -46, we wrote:
6. Fringes of islands. At several places 87 the question is raised whether areas between the mainland and fringes [394 U.S. 11, 67] or chains of islands along the coast are inland waters. The parties agree that no article of the Convention specifically provides that such areas are inland waters. Louisiana argues that they are inland waters, under any one of several theories: that such island fringes form the perimeter of bays under Article 7, that straight baselines must be drawn along the islands under Article 4, or that the waters should be deemed "inland" under general principles of international law which antedate and supplement the Convention on the Territorial Sea and the Contiguous Zone. The position of the United States is that such island chains can be taken into account as enclosing inland waters only by drawing straight baselines; yet the decision whether to draw such baselines is within the sole discretion of the Federal Government, and the United States has not chosen to do so.
We have concluded that Article 7 does not encompass bays formed in part by islands which cannot realistically be considered part of the mainland. 88 Article 7 defines bays as indentations in the "coast," a term which is used in contrast with "islands" throughout the Convention. Moreover, it is apparent from the face and the history of the Convention that such insular formations were intended to be governed solely by the provision in [394 U.S. 11, 68] Article 4 for straight baselines. 89 The language of Article 4 itself is the clearest indication of that intent:
In United States v. California, 381 U.S. 139, 168 , we held that "the choice under the Convention to use the straight-base-line method for determining inland waters claimed against other nations is one that rests with the Federal Government, and not with the individual States." 96 Since the United States asserts that it has not drawn and does not want to draw straight baselines along the Louisiana coast, that disclaimer would, under the California decision, be conclusive of the matter. Louisiana argues, however, that because the Louisiana coast is so perfectly suited to the straight baseline method, and because it is clear that the United States would employ it in the conduct of its international affairs were it not for this lawsuit, the Court should reconsider its holding in California and itself draw appropriate baselines. While we agree that the straight baseline method was designed for precisely such coasts as the Mississippi River Delta area, we adhere to the position that the selection of this optional method of establishing boundaries [394 U.S. 11, 73] should be left to the branches of Government responsible for the formulation and implementation of foreign policy. It would be inappropriate for this Court to review or overturn the considered decision of the United States, albeit partially motivated by a domestic concern, not to extend its borders to the furthest extent consonant with international law. 97 [394 U.S. 11, 74]
7. Historic inland waters. Louisiana argues that all the waters of the Mississippi River Delta, and East Bay in particular, are "so-called `historic' bays" within the meaning of Article 7 (6), 98 and that they are therefore inland waters notwithstanding their failure to meet the geographical requirements of Article 7 and the United States' refusal to draw straight baselines. 99 Historic [394 U.S. 11, 75] bays are not defined in the Convention, and the term therefore derives its content from general principles of international law. 100 As the absence of a definition indicates, there is no universal accord on the exact meaning of historic waters. 101 There is substantial agreement, however, on the outlines of the doctrine and on the type of showing which a coastal nation must make in order to establish a claim to historic inland waters. 102 But because the concept of historic waters is still relatively imprecise and its application to particular areas raises primarily factual questions, we leave to the Special Master - as we did in United States v. California - the task of determining in the first instance whether any of the waters off the Louisiana coast are historic bays. We do not think the ultimate resolution of this litigation would be hastened by any further discussion of the subject at this time, beyond the remarks below.
In its effort to establish that the waters of the Delta have been subjected to the continuous authority of the coastal nation, Louisiana has relied heavily on its own activities as well as on those of the Federal Government. The United States contends that those state activities cannot in this lawsuit support the position that the Delta waters are historic bays. The argument is not [394 U.S. 11, 76] that such exercises of authority by Louisiana would not be relevant to a claim of historic title vis-a-vis another nation. On the contrary, the United States has "[n]o doubt [that] the national government may, if it chooses, rely on State action to support its own historic claim as against other nations." 103 But, the United States asserts, "a State cannot oblige it to do so or to accept State action as binding in a domestic case such as the present one." In brief, then, the United States' position is that it can prevent judicial recognition of a ripened claim to historic title merely by lodging a disclaimer with the court.
In United States v. California we noted, but found it unnecessary to pass on, the United States' contention that historic title cannot be founded upon exercises of state authority because a claim to historic inland waters can be maintained only if endorsed by the United States. We there sustained the Master's determination that, even assuming the relevance of California's assertions of sovereignty over the coastal waters, they did not establish historic title. The United States' disclaimer was credited only because the case presented such "questionable evidence of continuous and exclusive assertions of [394 U.S. 11, 77] dominion." 381 U.S., at 175 . And we noted that we were "reluctant to hold that such a disclaimer would be decisive in all circumstances, for a case might arise in which the historic evidence was clear beyond doubt." Ibid. Thus, the Court indicated its unwillingness to give the United States the same complete discretion to block a claim of historic inland waters as it possesses to decline to draw straight baselines.
While we do not now decide that Louisiana's evidence of historic waters is "clear beyond doubt," neither are we in a position to say that it is so "questionable" that the United States' disclaimer is conclusive. We do decide, however, that the Special Master should consider state exercises of dominion as relevant to the existence of historic title. The Convention was, of course, designed with an eye to affairs between nations rather than domestic disputes. But, as we suggested in United States v. California, it would be inequitable in adapting the principles of international law to the resolution of a domestic controversy, to permit the National Government to distort those principles, in the name of its power over foreign relations and external affairs, by denying any effect to past events. 104 The only fair way to apply the Convention's recognition of historic bays to this case, then, is to treat the claim of historic waters as if it were being made by the national sovereign and opposed by another nation. To the extent the United [394 U.S. 11, 78] States could rely on state activities in advancing such a claim, they are relevant to the determination of the issue in this case.
THE CHIEF JUSTICE and MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
[ Footnote 2 ] The Submerged Lands Act was enacted in response to the Court's decisions in United States v. California, 332 U.S. 19 , [394 U.S. 11, 15] United States v. Texas, 339 U.S. 707 , and United States v. Louisiana, 339 U.S. 699 , that the States did not own the submerged lands off their coasts and that the United States had paramount rights in such lands. After enactment of the Submerged Lands Act, the United States commenced this action against Louisiana, invoking our original jurisdiction under Art. III, 2, of the Constitution, and seeking a declaration that it was entitled to exclusive possession of and power over the lands underlying the Gulf of Mexico more than three geographical miles from the coast.
[ Footnote 3 ] 364 U.S. 502, 503 ; 43 U.S.C. 1301 (c).
[ Footnote 4 ] 364 U.S., at 504 .
[ Footnote 5 ] By order of the Court, the United States' original suit against Louisiana was broadened to include the other Gulf States as defendants. 354 U.S. 515 . In connection with the supplemental decrees now proposed by the United States and Louisiana, Texas and Mississippi have filed motions seeking an order eliminating from consideration any issue with respect to the lateral boundaries between Louisiana and those States. While we have found it unnecessary to enter any such formal order, it is evident that the decree which will be entered at this stage of the case will decide only the rights of Louisiana and the United States and will not affect any lateral boundaries between the States.
[ Footnote 6 ] A supplemental decree was entered in 1965 with the consent of the parties removing several large areas from dispute. The decree also directed an accounting and distribution of funds collected from [394 U.S. 11, 16] those areas under the 1956 Interim Agreement between the parties governing the administration of disputed areas. 382 U.S. 288 .
[ Footnote 7 ] 1964. 15 U.S. T. (pt. 2) 1607, T. I. A. S. No. 5639. The Convention was the culmination of long years of work by the International Law Commission. Established by the United Nations General Assembly in 1947 to codify international law, the Commission began deliberations on the regime of the territorial sea in 1952 on the basis of a report submitted by the special rapporteur. At its eighth session in 1956 the Commission adopted a final report, which contained a proposed international convention and recommended the convocation of an international conference to examine further the law of the sea. The General Assembly adopted that recommendation and in 1958 convened the First U. N. Conference on the Law of the Sea in Geneva. With the International Law Commission report as its model, the Conference promulgated the Convention on the Territorial Sea and the Contiguous Zone and three other conventions dealing with other problems of international maritime law. See 1 A. Shalowitz, Shore and Sea Boundaries 203-211 (1962).
[ Footnote 8 ] 13 Stat. 58, codified as R. S. 4233.
[ Footnote 9 ] Act of March 3, 1885, 23 Stat. 438.
[ Footnote 10 ] 23 Stat. 442.
[ Footnote 11 ] Act of August 19, 1890, 26 Stat. 320.
[ Footnote 12 ] 26 Stat. 328.
[ Footnote 13 ] The Inland Rules are now codified at 33 U.S.C. 152-232 and the International Rules at 33 U.S.C. 1051-1094.
[ Footnote 14 ] Act of February 19, 1895, 28 Stat. 672.
[ Footnote 15 ] The authority given to the Secretary of the Treasury in the 1895 Act was successively transferred: (1) to the Secretary of Commerce and Labor (Act of February 14, 1903, 32 Stat. 829), later redesignated "Secretary of Commerce" (Act of March 4, 1913, 37 Stat. 736); (2) to the Commandant of the Coast Guard (Reorganization Plan No. 3 of 1946, 60 Stat. 1097); (3) to the Secretary of the Treasury (or to the Secretary of the Navy when the Coast Guard is operating in that department (Reorganization Plan No. 26 of 1950, 64 Stat. 1280)), and delegated by the Secretary of the Treasury to the Commandant of the Coast Guard (Treasury Department Order of July 31, 1950, 15 Fed. Reg. 6521). Section 6 (b) (1) of the [394 U.S. 11, 19] Department of Transportation Act, 80 Stat. 938, transferred this authority to the Secretary of Transportation, effective April 1, 1967 (Exec. Order No. 11340, March 30, 1967, 32 Fed. Reg. 5453); it was again delegated to the Commandant of the Coast Guard, effective April 1, 1967 (49 CFR 1.4 (a) (2), 32 Fed. Reg. 5606).
[ Footnote 16 ] 12 Fed. Reg. 8458, 8460 (1947).
[ Footnote 17 ] 18 Fed. Reg. 7893 (1953).
[ Footnote 18 ] Louisiana Act No. 33 of 1954. The "Inland Water Line" is delineated on the map of the Louisiana coast appended to this opinion, following p. 78.
[ Footnote 19 ] In United States v. California, 381 U.S. 139 , neither party suggested to the Court that the "Inland Water Line" had any relevance to the Submerged Lands Act. Indeed, both specifically disclaimed any reliance on it.
[ Footnote 20 ] Hearings on S. J. Res. No. 13 and other bills before the Senate Committee on Interior and Insular Affairs, 83d Cong., 1st Sess., 276 (1953). In hearings on proposed submerged lands legislation in earlier Congresses, representatives of Louisiana had argued to Congress that the Administration bills were "in error" because they overlooked the fact that, by the "Inland Water Line," "the inland waters of coastal States have already been defined and divided." Hearings on S. 155 and other bills before the Senate Committee on Interior and Insular Affairs, 81st Cong., 1st Sess., 194 (1949). See also id., at 179-180; Hearings on H. R. 5991 and H. R. 5992 before Subcommittee No. 1 of the House Committee on the Judiciary, 81st Cong., 1st Sess., 74-75 (1949).
[ Footnote 21 ] Also without substance is Louisiana's claim that the United States cannot alter the boundary adopted by Louisiana in 1954. The question before us is the location of the boundary of land quit-claimed to Louisiana by the United States in 1953, and that question is of course not affected by any subsequent action of the Louisiana [394 U.S. 11, 21] Legislature. As we stated in an earlier dispute between these parties, "[w]e intimate no opinion on the power of a State to extend, define, or establish its external territorial limits or on the consequences of any such extension vis a vis persons other than the United States or those acting on behalf of or pursuant to its authority. The matter of state boundaries has no bearing on the present problem." United States v. Louisiana, 339 U.S. 699, 705 .
[ Footnote 22 ] Article 7 sets forth precise mathematical requirements which bays must satisfy to qualify as inland waters from whose seaward edge the territorial sea extends. See infra, at 48; n. 64, at 49; 52, n. 68; 54-55. Paragraph 6 of the Article provides, however, that "[t]he foregoing provisions shall not apply to so-called `historic' bays . . . ."
[ Footnote 23 ] On the threefold division of the sea, see generally L. Bouchez, The Regime of Bays In International Law 4-5 (1964); 1 Shalowitz, supra, n. 7, at 22-24; M. Strohl, The International Law of Bays 3-4 (1963).
[ Footnote 24 ] The breadth of the territorial sea varies from country to country, depending on the claims of the coastal state. These claims have long been so diverse that the Geneva Conference was unable to agree upon a uniform distance for purposes of the Convention on the Territorial Sea and the Contiguous Zone. A table illustrating the various territorial sea claims of most nations appears at 1 Shalowitz, supra, n. 7, at 389 (App. J.).
[ Footnote 25 ] Article 14 of the Convention on the Territorial Sea and the Contiguous Zone provides that "ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea."
[ Footnote 26 ] Article 2 of the Convention on the High Seas provides: "The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty." 1962. 13 U.S. T. (pt. 2) 2313, T. I. A. S. No. 5200. It has, however, generally been thought that the coastal nation can exercise some limited jurisdiction over ships beyond its territorial waters. See, e. g., M. McDougal & W. Burke, The Public Order of the Oceans, c. 6 (1962); P. Jessup, The Law of Territorial Waters and Maritime Jurisdiction 75-112 (1927); 1 Shalowitz, supra, n. 7, at 27. The Convention on the Territorial Sea and the Contiguous Zone has recognized that such extensions of jurisdiction are sometimes imperative and has provided that in a contiguous zone not to exceed 12 miles from the coast, the littoral nation "may exercise the control necessary to: (a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea; (b) Punish infringement of the above regulations committed within its territory or territorial sea." Article 24.
[ Footnote 27 ] A recent United Nations study recommended by the International Law Commission reached the following conclusions:
[ Footnote 28 ] Historic title can be obtained over territorial as well as inland waters, depending on the kind of jurisdiction exercised over the area. "If the claimant State exercised sovereignty as over internal waters, the area claimed would be internal waters, and if the sovereignty exercised was sovereignty as over the territorial sea, the area would be territorial sea." Juridical Regime of Historic Waters, Including Historic Bays, supra, n. 27, at 23.
[ Footnote 29 ] Modern authorities are unanimous on this principle. Thus, Jessup states that "[i]t seems clear that even transient vessels must obey reasonable rules and regulations laid down by the littoral state in the interests of safety of navigation and maritime police." And [394 U.S. 11, 25] he cites the United States Inland Rules as an example of such regulation of the territorial sea. Jessup, supra, n. 26, at 121, 122, n. 37. Shalowitz also concludes that the right of innocent passage through the territorial sea "may be conditioned upon the observance of special regulations laid down by the coastal nation for the protection of navigation . . . and other local interests." 1 Shalowitz, supra, n. 7, at 23. See also Boggs, Delimitation of the Territorial Sea, 24 Am. J. Int'l L. 541, 542 (1930); 3 G. Gidel, Le Droit International Public de la Mer 633 (1934); Strohl, supra, n. 23, at 273, 275.
J. Griffin, The American Law of Collision (1949) is said by Louisiana to be to the contrary. Referring to the "Inland Water Line," the author states that "[t]he Inland Rules apply to vessels of any nationality, since the United States has full jurisdiction over the waters in question." Id., at 11-12. It is clear, however, that the jurisdiction to which the author refers is not the total sovereignty of a coastal nation over its inland waters, but rather the control of the territorial sea. Thus, he notes earlier that the Inland Rules govern "cases arising on coastal and inland waters of the United States which are subject to admiralty jurisdiction." Id., at 8. (Emphasis supplied.)
This international understanding is not a recent development. At the time Congress enacted the Inland and International Rules, there was also no dispute about a coastal nation's power to regulate navigation in its territorial sea. At the 1895 meeting of the International Law Association, Rules Relating to the Territorial Sea were adopted. A six-mile territorial sea was agreed upon, in which all nations would have the right of innocent passage. Article 7 then provided:
The 1930 Conference at The Hague also had no doubt of the power of the coastal nation to regulate navigation in the territorial sea. Article 6 of its proposed codification stated:
[ Footnote 30 ] The recent United Nations study of the concept of historic waters concluded that "if the claimant State allowed the innocent passage of foreign ships through the waters claimed, it could not acquire an historic title to these waters as internal waters, only as territorial sea." Juridical Regime of Historic Waters, Including Historic Bays, supra, n. 27, at 23. Under that test, since the United States has not claimed the right to exclude foreign vessels from within the "Inland Water Line," that line could at most enclose historic territorial waters.
[ Footnote 31 ] Cf. Bouchez, supra, n. 23, at 227, 249; Strohl, supra, n. 23, at 293.
[ Footnote 32 ] Inland Rules: Act of May 21, 1948, 62 Stat. 249; Act of August 8, 1953, 67 Stat. 497. International Rules: Act of October 11, 1951, 65 Stat. 406; Act of September 24, 1963, 77 Stat. 194.
[ Footnote 33 ] 18 Fed. Reg. 7893 (1953).
[ Footnote 34 ] Admiralty Law Enforcement 25-26 (1943). See also the Coast Guard Law Enforcement Manual 3-7 (1954):
[ Footnote 35 ] Judicial and lay opinion have agreed on the limited significance of the "Inland Water Line." In discussing the line in United States v. Newark Meadows Imp. Co., 173 F. 426, 428, Judge Hough, of the Circuit Court for the Southern District of New York, said in 1909:
Writers who have considered the question are unanimous that the "Inland Water Line" serves only the purpose for which it was authorized. Thus, 1 Shalowitz, supra, n. 7, at 23, cautions that the "physiographic concept of the limits of inland waters should not be confused with the lines established by the United States Coast Guard to separate the areas where the Inland Rules of the Road apply from those to which the International Rules apply. These lines are established for administrative purposes and have been held to have no application other than the specific purpose of determining what rules of navigation are to be followed."
Similarly, Strohl, supra, n. 23, at 4, n. 5, warns that
[ Footnote 36 ] On the contrary, the titles of the Acts and statements in the legislative history illustrate that Congress' only concern was with the regulation of navigation. E. g., S. Ex. Doc. No. 35, 53d Cong., 3d Sess., 2 (1895). The provision for the delineation of an "Inland Water Line" was an afterthought, added "at the request of the maritime interests of New York and Philadelphia." 27 Cong. Rec. 2059 (1895).
Louisiana argues that since Article 30 of the 1889 International Marine Conference excepted from the International Rules only special rules for "inland waters," the Conference and Congress must have believed that the power of the coastal nation extended only to those excepted areas. It is clear, however, that both the Conference and Congress recognized the already prevailing principle of international law (see supra, n. 29) that the coastal nation had the power to regulate navigation in the territorial sea. But they decided that it would be preferable to have standard international rules, insofar as practicable, on all navigable waters, since there were rarely well-marked lines dividing national waters from the high seas. See Protocols of Proceedings of the International Marine Conference in Washington, D.C., in 1889, S. Ex. Doc. No. 53, 51st Cong., 1st Sess., 21-22, 25, 65-66, 127-128, 579, 730 (1890); H. R. Rep. No. 731, 48th Cong., 1st Sess., 2 (1884).
[ Footnote 37 ] There have been, for example, several recent changes in the lines. See, e. g., 31 Fed. Reg. 4401, 10322 (1966); 32 Fed. Reg. 7127 (1967); 33 Fed. Reg. 8273 (1968). The stated purpose of one of the 1966 changes was "to bring the regulations up to date with identification of aids to navigation." 31 Fed. Reg. 4401. When the Commandant of the Coast Guard proposed the 1953 changes in the "Inland Water Line" across the Gulf coast, he noted that "[t]hese lines are based on the needs of safety in navigation." 18 Fed. Reg. 2556 (1953). And when the 1953 line was finally adopted, he stated:
[ Footnote 38 ] Letter from W. R. Castle, Jr., to Charge Lundh, July 13, 1929, in 1 G. Hackworth, Digest of International Law 645 (1940).
[ Footnote 39 ] Louisiana argues that the jurisdictional significance of the "Inland Water Line" is evidenced by its adoption by Congress in several other Acts. Officers Competency Certificates Act, 53 Stat. 1049, 46 U.S.C. 224a (12) (a); Coastwise Load Line Act, 49 Stat. 888, 46 U.S.C. 88; Act for inspection of seagoing vessels, 49 Stat. 1544, 46 U.S.C. 367. In all of these statutes, however, the "Inland Water Line" is adopted as the line seaward of which the provisions are to apply. Consequently they do not represent an exercise of jurisdiction over inland waters.
[ Footnote 40 ] One congressional committee report in 1953 concluded that perhaps the definition of inland waters could not be uniform, particularly as to Louisiana:
[ Footnote 41 ] Eleven such dredged channels have been brought to our attention. Moving from east to west, they appear at (1) the Mississippi River-Gulf Outlet through Breton and Chandeleur Sounds, (2) and (3) South and Southwest Passes of the Mississippi River, (4) the Empire Canal, opening into "Ascension Bay" (see infra, at 48), just east of Bastian Bay, (5) the Barataria Bay Waterway through Barataria Bay and into "Ascension Bay," (6) Belle Pass, the arm of Bayou Lafourche just west of Bay Marchand, (7) the Houma Navigation Canal through Terrebonne Bay, (8) the Atchafalaya River Channel through Atchafalaya Bay, (9) the Freshwater Bayou Canal, (10) Calcasieu Pass, and (11) Sabine Pass.
[ Footnote 42 ] A member of the International Law Commission gave the following explanation:
The same understanding is reflected in the discussions at the 1958 Geneva Conference:
[ Footnote 43 ] 1954. 1 Y. B. Int'l L. Comm'n 88.
[ Footnote 44 ] Article 3 provides as follows:
In this regard, the United States points out that if dredged channels were really "part of the coast" within Article 8, their seawardmost extensions could also serve as headlands from which lines closing indentations could be drawn. As the International Law Commission Commentary explained, "[t]he waters of a port up to a line drawn between the outermost installations form part of the internal waters of the coastal State." 1956. 2 Y. B. Int'l L. Comm'n 270. Yet even Louisiana has recognized the inappropriateness of using the ends of such channels as headlands of bays.
[ Footnote 45 ] The definition was explained as follows in H. R. Rep. No. 215, 83d Cong., 1st Sess., 4 (1953):
[ Footnote 46 ] In opposing the definition, Senator Cordon stated:
[ Footnote 47 ] The bill, H. R. 4198, defined inland waters as including "all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea." (Emphasis supplied.) The last phrase hardly describes a deepening of water already in the open sea.
[ Footnote 48 ] The low-tide elevations in question are situated near the mouth of Atchafalaya Bay. Louisiana also argues that the United States [394 U.S. 11, 41] has overlooked some islands within the Bay, and that low-tide elevations within three miles of those islands should be included under Article 11. The United States disputes the existence of the islands or their characterization as such. The question, being one of fact which cannot be resolved on this record, should be decided, if necessary, by the Special Master.
Another factual question which we leave to the Special Master concerns the existence of an artificially created spoil bank at Pass Tante Phine, just to the north of West Bay. Louisiana contends that it is above water at low tide, whereas the United States argues that while it used to be so exposed, it is no longer. If the United States is correct in this assertion, of course the spoil bank forms no part of the coast. The same would be true if the bank were surrounded by water at low tide, for Article 11 of the Convention provides for measuring the territorial sea only from those low-tide elevations which are "naturally-formed area[s]." However, to the extent that the spoil bank is an extension of the mainland and is uncovered at low tide, it must be taken into account in drawing the baseline under Article 3.
The United States contends that the spoil bank should be ignored because its construction was unauthorized; it was created by the Gulf Refining Co. under a 1956 permit which, it is said, authorized the dredging of a channel but not the creation of a spoil bank. Even assuming that the creation of the bank was not authorized (a question on which we express no opinion whatever), it would not follow that it does not constitute part of the coast. If the United States is concerned about such extensions of the shore, it has the means to prevent or remove them. See United States v. California, 381 U.S. 139, 177 . Nor can we accept the United States' argument that a "mere spoil bank" should not be deemed part of the coast because it is not "purposeful or useful" and is likely to be "short-lived." It suffices to say that the Convention contains no such criteria.
[ Footnote 49 ] See n. 24, supra.
[ Footnote 50 ] See supra, at 22.
[ Footnote 51 ] The United States suggests that the issue was decided in United States v. California, for the decree in that case contained this definition of "coast line":
[ Footnote 52 ] Report on the Regime of the Territorial Sea 22, 1952. 2 Y. B. Int'l L. Comm'n 33, U. N. Doc. A/CN.4/53 (1952).
[ Footnote 53 ] Second Report on the Regime of the Territorial Sea 30, 1953. 2 Y. B. Int'l L. Comm'n 57, U. N. Doc. A/CN.4/61 (1953); Addendum to the Second Report on the Regime of the Territorial Sea 5-6, 1953. 2 Y. B. Int'l L. Comm'n 75, U. N. Doc. A/CN.4/61/Add. 1 (1953); Third Report on the Regime of the Territorial Sea 13, 1954. 2 Y. B. Int'l L. Comm'n 5, U. N. Doc. A/CN.4/77 (1954).
[ Footnote 54 ] Report of the International Law Commission Covering the Work of its Sixth Session, 1954. 2 Y. B. Int'l L. Comm'n 156, U. N. Doc. A/CN.4/88 (1954).
[ Footnote 55 ] The Commentary to the 1954 Commission draft stated:
[ Footnote 56 ] 1954. 1 Y. B. Int'l L. Comm'n 95.
[ Footnote 57 ] Report of the International Law Commission Covering the Work of its Eighth Session, 1956. 2 Y. B. Int'l L. Comm'n 270, U. N. Doc. A/CN.4/104 (1956).
[ Footnote 58 ] The United States argues that its construction of Article 11 is supported by the failure of the International Law Commission to adopt a proposal of the United Kingdom to insert after the words "territorial sea" the phrase "as measured from the low-water mark or from a baseline." Report of the International Law Commission Covering the Work of its Seventh Session, 1955. 2 Y. B. Int'l L. Comm'n 58, U. N. Doc. A/CN.4/94 (1955). The preference of the Commission for the phrase "as measured from the mainland" to the British terminology, however, is consistent with the view that the phrases were thought to have the same meaning.
[ Footnote 59 ] 1956. 1 Y. B. Int'l L. Comm'n 283.
[ Footnote 60 ] See United Nations Conference on the Law of the Sea, supra, n. 42, at 187, 243.
[ Footnote 61 ] The United States argues that the meaning of its proposal must have been clear to all, since only three days earlier it had submitted a proposed amendment to another article, introducing the word "mainland" for the express purpose of excluding water crossings from its scope. See id., at 236. But at the time of the United States proposal the word "mainland" already appeared in the Conference draft of Article 11 in a context which made clear that measurement of the territorial sea from bay-closing lines was not excluded. Moreover, if the United States had in fact intended its amendment to Article 11 to exclude water crossings, it seems likely that the United States would have spelled out that intention as it had done with respect to the proposal to amend the other article three days before.
[ Footnote 62 ] United Nations Conference on the Law of the Sea, supra, n. 42, at 186-187. The expert was Mr. Francois, who had been the Special Rapporteur of the International Law Commission for the drafting of the Convention.
[ Footnote 63 ] This conclusion coincides with the views of authorities who have dealt with the subject. Thus, Sir Gerald Fitzmaurice, who was a member of the International Law Commission and the deputy-leader of the United Kingdom's delegation to the 1958 Geneva Conference, gives this explanation of Article 11:
[ Footnote 64 ] The United States argues - in addition to its contention that it does not meet the semicircle test - that "Ascension Bay" is not a true bay because it is a "mere curvature of the coast" rather than a "well-marked indentation" containing "landlocked waters." If this contention is accepted, then it is of course irrelevant that "Ascension Bay" meets the semicircle test. See infra, at 54. Whether an indentation qualifies as a bay under the criteria of Article 7 other than the semicircle test is a factual question which should be submitted to the Special Master in the first instance.
If "Ascension Bay" does qualify under Article 7, on the other hand, it is an oversize bay, for the closing line across its mouth [394 U.S. 11, 49] exceeds 24 miles. See n. 68, infra. The procedure to be followed in such event is spelled out in Article 7 (5):
If it is determined that "Ascension Bay" does not qualify as a "well-marked indentation" containing "landlocked waters," and that a straight baseline therefore cannot be drawn within it from Caminada Pass to Empire Canal, the question will be presented whether the beach erosion jetties on Grande Isle are part of the coast within Article 8 of the Convention. See supra, at 36. We hold that they are. The United States argues that Article 8 is limited to structures which are "integral parts of the harbor system" and that there is no harbor between Grande Isle and the jetties. While some early discussion of the subject by the International Law Commission tends to support the United States' position that [394 U.S. 11, 50] these jetties are not encompassed by Article 8, see 1954. 1 Y. B. Int'l L. Comm'n 88, the Commentary to the final International Law Commission draft of Article 8 (which was identical to its present form) expressly covers artificial structures which are not closely linked to ports:
[ Footnote 65 ] The problem may also arise in West Bay, where the parties disagree as to the proper closing line. In particular, the United States objects to Louisiana's choice of the tip of the jetty at Southwest Pass as the southern headland. If that point is selected, the United States argues, the bay cannot satisfy the semicircle test unless areas such as Bob Taylor's Pond, Zinzin Bay, or Riverside Bay are included in its area; and those areas are "too definitely separated from West Bay to be considered a part of it." The proper location of headlands is, of course, another factual determination which we leave to the initial scrutiny of the Master.
[ Footnote 66 ] "[T]he water of bays within bays may be included as water surface of the outer bay in determining the dimensions of any coastal indentation." Sovereignty of the Sea, United States State Department Geographic Bulletin No. 3, p. 11 (1965). See also 1 Shalowitz, supra, n. 7, at 219: "In the application of the semicircular rule to an indentation containing pockets, coves, or tributary waterways, the area of the whole indentation (including pockets, coves, etc.) is compared with the area of a semicircle."
[ Footnote 67 ] 1 Shalowitz, supra, n. 7, at 220, n. 28, contains the following suggestions:
[ Footnote 68 ] Article 7 (4) reads as follows:
[ Footnote 69 ] See n. 79, infra.
[ Footnote 70 ] The United States does not agree with Shalowitz' alternative suggestion that in determining the area of a large indentation, the areas of all qualifying bays within it should be excluded. See supra, at 51 and n. 67.
[ Footnote 71 ] We think the same result follows in West Bay, where the areas which the United States seeks to exclude from the bay are set off only by strings of islands. See n. 65, supra. Accordingly, should the closing line urged by Louisiana be accepted, it will not be defeated by the semicircle test.
[ Footnote 72 ] Louisiana contends that the entire area of East Bay is a historic bay. See infra, at 74. If that position is accepted, of course, none of the geographic tests of Article 7 will be applicable, for Article 7 provides that "[t]he foregoing provisions shall not apply to so-called `historic' bays . . . ."
[ Footnote 73 ] See n. 64, supra.
[ Footnote 74 ] The 24-mile limitation, for instance, is applied to the aggregate lengths of the closing lines. See 1 Shalowitz, supra, n. 7, at 221. See also the following Commentary of the International Law Commission:
[ Footnote 75 ] The extent to which this problem is presented by this case depends upon the exact location of the line between the entrance points on the mainland. The United States and Louisiana disagree as to the location of the headlands on the mainland, the United States having selected points considerably inland of those chosen by Louisiana. Since even the straight line between the mainland headlands urged by the United States is not entirely landward of what it considers the mouths between the islands, we do not postpone consideration of Louisiana's contention to a determination of the natural entrance points on the mainland.
[ Footnote 76 ] 1956. 2 Y. B. Int'l L. Comm'n 269.
[ Footnote 77 ] The direct, mainland-to-mainland line proposed by Louisiana across the Lake Pelto-Terrebonne Bay-Timbalier Bay indentation would meet the 24-mile test, but it appears that the line drawn by the United States would not. The exact length of the United States line need not be determined, however, because we hold that, for the purpose of the question at issue, there is no distinction between indentations which would qualify as bays without the presence of islands and those which would not. See next paragraph. Nothing in the language or the history of Article 7 (3) limits its application to those indentations which would not be bays except for the presence of islands. If the islands intersected by a direct line between the mainland headlands actually create multiple mouths, the selection of closing lines across those mouths is not optional.
[ Footnote 78 ] Shalowitz agrees that the purpose of Article 7 (3) supports a policy in favor of enclosing the maximum area of inland water. See 1 Shalowitz, supra, n. 7, at 225, n. 38. However, the context of his remarks is quite different from the present one. He there suggests that a policy in favor of enclosing the greatest area would support drawing lines out to islands wholly seaward of a direct line between the entrance points on the mainland, but not drawing lines inward to islands wholly within such a direct closing line. Elsewhere Shalowitz appears to agree that if lines are drawn to and between the islands, they should be across the natural entrance points, even if those natural entrance points are landward of a straight mainland-to-mainland line. See id., at 221, fig. 40. See also Pearcy, Measurement of the U.S. Territorial Sea, 40 Dept. State Bull. 963, 966, fig. 4 (1959).
[ Footnote 79 ] Since this issue is not presented by the insular configurations at the Lake Pelto-Terrebonne Bay-Timbalier Bay complex, we express no opinion on it. However, we note that the issue may arise in relation to the Caminada Bay-Barataria Bay indentation. Despite our holding that "Ascension Bay," of which Caminada and Barataria Bays are a part, does satisfy the semicircle test, supra, at 52-53, it will be open to the United States to argue before the Master that "Ascension Bay" does not otherwise qualify as a bay under Article 7 (2) of the Convention on the Territorial Sea and the Contiguous Zone. A holding that "Ascension Bay" is not a true bay would preclude the drawing of a straight 24-mile baseline from [394 U.S. 11, 59] Caminada Pass to Empire Canal, see n. 64, supra, and would call into question the proper closing lines across the Caminada Bay-Barataria Bay indentation. In its reply brief, Louisiana for the first time contested the United States' proposal to draw baselines along the low-water marks on the fringe of islands across that indentation. Louisiana asserts that a straight closing line can be drawn between the appropriate entrances on the mainland which is entirely seaward of all the islands on which the United States has drawn baselines.
Although the question whether lines should be drawn inward to islands which are not intersected by a direct mainland-to-mainland closing line is one of construction of the Convention rather than of fact, for several reasons we have decided to leave its resolution to the Special Master in the first instance. The issue may not arise at all, if it is determined either that "Ascension Bay" is a true bay or that a direct line between the proper mainland headlands does intersect the islands. Moreover, the issue is a close one, yet one on which we have not had the benefit of concerted advocacy on both sides. On the one hand, the considerations which led us to reject Louisiana's contention with respect to islands intersected by a straight mainland-to-mainland closing line appear to militate in favor of drawing lines inward to islands which seemingly create distinct mouths to the indentation. This view is supported by the fact that Article 7 (3) contains no requirement that the islands be intersected by a mainland-to-mainland closing line; rather it speaks only of multiple mouths "because of the presence of islands." On the other hand, Article 7 (3) does provide that islands wholly "within" the indentation shall be treated as part of the water areas. Because the issue is a difficult one of first impression and few illuminating materials have been brought to our attention, we feel that our resolution of the question, if necessary, would be greatly aided by its prior submission to a neutral referee.
[ Footnote 80 ] The question arises with respect to low-tide elevations as well as islands. We think that in this context there can be no distinction between them. Article 7 (4) provides that the bay-closing line shall be drawn "between the low-water marks of the natural entrance points." (Emphasis supplied.) The line is to be drawn at low-tide, and, therefore, if a natural entrance point can be on an area of land surrounded by water, it can be on a low-tide elevation as well as an island.
The United States observes that under Article 4, see n. 89, infra, straight baselines "shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them." A fortiori, the United States argues, bay-closing lines cannot be drawn to such low-tide elevations. The argument overlooks the different policy considerations underlying Articles 4 and 7. Straight baselines can be drawn to islands under Article 4 only if they enclose areas "sufficiently closely linked to the land domain to be subject to the regime of internal waters." Low-tide elevations obviously do not so closely tie the enclosed waters to the land; and if they could be used for straight baselines, "the distance between the baselines and the coast might be extended more than is required to fulfil the purpose for which the straight baseline method is applied." International Law [394 U.S. 11, 61] Commission Commentary on its final draft, 1956. 2 Y. B. Int'l L. Comm'n 268. A further reason given by the International Law Commission for the prohibition against drawing straight baselines to low-tide elevations is that "it would not be possible at high tide to sight the points of departure of the baselines." Ibid. The need to identify headlands on the coast at high tide is not so great as it is in respect of basepoints in the sea, and for that reason the Convention measures bay-closing lines from the low-water mark.
[ Footnote 81 ] Compare the position of the United States that the low-water perimeter of indentations should be broken by water-crossing lines closing off distinct smaller indentations within the larger bay, supra, at 51.
[ Footnote 82 ] Most of the references by 19th and early 20th century authorities to the connection between islands and bays foreshadowed the modern concept - embodied in Article 7 (3) of the Convention - of islands creating multiple mouths to bays and tying the waters of the indentation more closely to the mainland. See, e. g., Calvo, excerpted in Crocker, supra, n. 29, at 29; Piedelievre, Precis de Droit International Public ou Droit des Gens (1894), in Crocker, at 389; Testa, Le Droit Public International Maritime (1886), in Crocker, at 448. Some authors, relying principally on an 1839 Franco-English convention regulating fisheries in the English Channel, stated that bay-closing lines should be drawn between the "extreme points of the mainland and sand banks." Latour, excerpted in Crocker, supra, n. 29, at 257. See also Perels, id., at 357-358. In view of the contrast drawn between "mainland" and "sand banks," it may be that this formulation contemplated the drawing of closing lines to pieces of land closely related to the mainland but entirely surrounded by water, as sand banks often are.
[ Footnote 83 ] The United States argues that since the Convention in Article 7 (3) specifically recognizes that islands may create multiple mouths to bays, it cannot be construed to permit islands to create the bays themselves. Alternatively, the Government argues that if a closing line can be drawn from one side of a bay to an island as the headland on the other side, then it must be continued from the island to the nearest point on the mainland; and the distance to the mainland must be added to that across the bay in determining whether the 24-mile test is satisfied. These arguments, however, misconstrue the theory by which the headland is permitted to be located on the island - that the island is so closely aligned with the mainland as realistically to be considered an integral part of it. Thus viewed, there is no "mouth" between the island and the mainland.
[ Footnote 84 ] In the case of The "Anna," 165 Eng. Rep. 809 (1805), the British High Court of Admiralty was called upon to determine a claim that an American ship seized by a privateer off the Mississippi River Delta had been wrongfully taken in American territorial waters. In holding for the claimant, the court wrote:
[ Footnote 85 ] "Obviously, some islands must be treated as if they were part of the mainland. The size of the island, however, cannot in itself serve as a criterion, as it must be considered in relationship to its shape, orientation and distance from the mainland." Boggs, Delimitation of Seaward Areas under National Jurisdiction, 45 Am. J. Int'l L. 240, 258 (1951).
[ Footnote 86 ] This enumeration is intended to be illustrative rather than exhaustive.
[ Footnote 87 ] One such place is Caillou Bay, the body of water between the mainland and the westernmost of the string of islands known as the Isles Dernieres. Another is the large area consisting of Chandeleur Sound and Breton Sound between the northeastern shores of the Mississippi River Delta and the Chandeleur Islands chain. This latter area is not in dispute, for the United States, while asserting that the sounds are not necessarily inland waters under the [394 U.S. 11, 67] Convention, has conceded that they belong to Louisiana. That concession was made at an early stage of this litigation, see n. 97, infra, and the United States has decided not to withdraw it despite the subsequent ratification of the Convention. Louisiana further contends that some of the Chandeleur Islands form part of the perimeter of a bay - which it calls "Isle au Breton Bay" - enclosing inland waters between their southern edges and the North and Main Passes of the Mississippi River Delta. The United States objects to this use of the island fringe.
[ Footnote 88 ] Louisiana does not contend that any of the islands in question is so closely aligned with the mainland as to be deemed a part of it, and we agree that none of the islands would fit that description.
[ Footnote 89 ] "1. In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.
[ Footnote 90 ] Although international accord on the concept of straight baselines along island chains is a fairly recent development, there are some earlier statements of the principle. See, e. g., Raestad, La Mer [394 U.S. 11, 69] Territoriale (1913), excerpted in Crocker, supra, n. 29, at 407. See generally McDougal & Burke, supra, n. 26, at 314-316.
[ Footnote 91 ] See the discussion of the International Law Commission at 1954. 1 Y. B. Int'l L. Comm'n 66; 1955. 1 Y. B. Int'l L. Comm'n 197, 218, 252; 1955. 2 Y. B. Int'l L. Comm'n 37; 1956. 1 Y. B. Int'l L. Comm'n 185, 194-195; and of the 1958 Geneva Conference in United Nations Conference on the Law of the Sea, supra, n. 42, at 43-44, 60, 141, 156, 162-163. A thorough review of the practice of nations and international studies of the problem is found at 4 M. Whiteman, Digest of International Law 274-303.
[ Footnote 92 ] The 1930 Hague Convention, for example, was unable to recommend a specific provision:
[ Footnote 93 ] The history of the subject is summarized in the Reference Guide to the Articles Concerning the Law of the Sea Adopted by the International Law Commission at its Eighth Session, U. N. Doc. A/C.6/L.378, p. 45, n. 1 (1956), as follows:
[ Footnote 94 ] Islands are normally covered by Article 10:
[ Footnote 95 ] This conclusion is shared by Shalowitz. See 1 Shalowitz, supra, n. 7, at 227 and n. 44. Strohl posits that "a fringe of islands can make up one side of a bay," Strohl, supra, n. 23, at 72, but recognizes that the only provision of the Convention which would [394 U.S. 11, 72] authorize such a baseline is Article 4. Id., at 60. This conclusion is not undermined by occasional references to an insular formation as creating a "bay." See, e. g., 1955. 1 Y. B. Int'l L. Comm'n 211, Bouchez, supra, n. 23, at 233 (both referring to Long Island Sound); Manchester v. Massachusetts, 139 U.S. 240 (referring to Buzzard's Bay). Only one authority appears to assume, without discussion, that a bay formed by islands would be governed by the provisions of Article 7. Pearcy, supra, n. 78, at 965. (The area in question was that between the coast of Florida and the chain of Keys curving to the south and east. The United States points out that they are linked by a permanent highway and therefore may be considered as part of the mainland.)
[ Footnote 96 ] In the same vein, we held that the choice whether to employ the concept of a "fictitious bay" was that of the Federal Government alone. 381 U.S., at 172 . That holding was, of course, consistent with the conclusion that the drawing of straight baselines is left to the Federal Government, for a "fictitious bay" is merely the configuration which results from drawing straight baselines from the mainland to a string of islands along the coast. See 381 U.S., at 170 , n. 38.
[ Footnote 97 ] Louisiana further contends that the United States is estopped from denying the "inland water" status of such areas by its concession in earlier stages of this litigation that the areas between the mainland and all the offshore islands were inland waters. We took note of this concession in United States v. Louisiana, 363 U.S. 1, 67 , n. 108:
It might be argued that the United States' concession reflected its firm and continuing international policy to enclose inland waters within island fringes. It is not contended at this time, however, that the United States has taken that posture in its international relations to such an extent that it could be said to have, in effect, utilized the straight baseline approach sanctioned by Article 4 of the Convention. If that had been the consistent official international stance of the Government, it arguably could not abandon that stance solely to gain advantage in a lawsuit to the detriment of Louisiana. Cf. United States v. California, 381 U.S. 139, 168 : "[A] contraction of a State's recognized territory imposed by the Federal Government in the name of foreign policy would be highly questionable." We do not intend to preclude Louisiana from arguing before the Special Master that, until this stage of the lawsuit, the United States had actually drawn its international boundaries in accordance with the principles and methods embodied in Article 4 of the Convention on the Territorial Sea and the Contiguous Zone.
[ Footnote 98 ] See n. 72, supra.
[ Footnote 99 ] Louisiana also suggests that the indentations between the passes of the Mississippi River Delta are part of the river mouth and therefore inland waters under Article 13 of the Convention:
[ Footnote 100 ] The United States argues that the Convention recognizes only historic bays and not other kinds of inland water bodies. We do not pass on this contention except to note that, by the terms of the Convention, historic bays need not conform to the normal geographic tests and therefore need not be true bays. 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.
[ Footnote 101 ] See supra, at 24.
[ Footnote 102 ] See n. 27, supra.
[ Footnote 103 ] In this the United States appears to be correct. While the unauthorized activities of private citizens could generally not support a claim of historic title, see Juridical Regime of Historic Waters, Including Historic Bays, supra, n. 27, at 14-15; Bouchez, supra, n. 23, at 238; Strohl, supra, n. 23, at 303-304, the actions of local governments, if not repudiated by or inimical to the interests of the national sovereign, are assertions of dominion as against other nations. And claims to historic title have been based in part on such actions. See the opinion of the Court of Commissioners of Alabama Claims in Stetson v. The United States, quoted in 4 J. Moore, International Arbitrations 4332, 4339 (1898); Opinion of Attorney General Randolph on the seizure of the ship "Grange" in Delaware Bay, 1 Op. Atty. Gen. 32 (1793). See generally McDougal & Burke, supra, n. 26, at 360-361.
[ Footnote 104 ] 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. The latter, we believe, would approach an impermissible contraction of territory against which we cautioned in United States v. California. See n. 97, supra.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, dissenting.
We must decide in this case the meaning of the term "inland waters," as used in the Submerged Lands Act of 1953. 1 Although the value of all the submerged lands probably could be stated only in astronomical figures, this dispute is a minor one involving only a comparatively small segment of land adjacent to Louisiana. 2 The Court chooses as the proper meaning the complex [394 U.S. 11, 79] series of definitions incorporated in the Convention on the Territorial Sea and the Contiguous Zone, an international treaty approved by the President and ratified by the Senate. 3 In making this choice, the Court relies on the recent decision by a divided Court that this standard should be used in determining the boundaries of California's "inland waters" along the California coast. United States v. California, 381 U.S. 139 (1965) (generally referred to as the second California case). I cannot agree to application of the same standard to Louisiana, where coastal conditions are wholly different 4 and where the Convention standard, which the Court thought would provide some certainty and stability for California, can only cause chaos and confusion. Nor can I find any justification for applying the Convention standard applied in the second California case to Louisiana, a State that was not a party to the West Coast litigation but urges us to adopt a different standard, one especially convenient for application to Louisiana's own unusual coast, and one never even considered in the West Coast litigation. 5 Under these circumstances I must dissent. [394 U.S. 11, 80] I would hold that "inland waters" should be measured in Louisiana, and in any other State with similar coastal characteristics, by the standard urged by Louisiana - the Coast Guard line established years ago, under the authority of an 1895 Act of Congress, to mark off the boundaries of the States' "inland waters." Such a holding would put an end to a useless, unnecessary litigation, over an issue that can well be characterized as de minimis so far as the practical effect to the United States is concerned.
But if that turns out to be the result of using the treaty definitions in the second California case, it will certainly not be the result here, for there are crucial differences between the two coasts. California waters are in the main deep and often are navigable very close to shore. There are few indentations along that State's coast, and most of these are smooth or relatively regular in shape. The shoreline is, of course, subject to changes by natural forces, but the land along the shore is for the most part hard and rocky, and therefore such changes in the shoreline have been extremely gradual. The Louisiana coast is entirely different in many ways. The waters off the shore are shallow and often not readily navigable. The shoreline is marked by numerous complex indentations, and indeed the United States, in a brief filed earlier in this litigation, itself recognized that "[t]he Louisiana coast line is an extraordinarily complicated one." 8 (Emphasis added.) Even more important than this complexity of the present coastline is its highly volatile nature. The mighty Mississippi brings sediment and mud which may build up little islands and mud elevations one day and destroy them the next. Parts of the Mississippi Delta are receding at a rapid rate, while in other parts deposits are rapidly being built up. Recent projects along the Atchafalaya River may cause that river to begin building another massive delta that could grow seaward at a rate of almost one mile per year. Because the coast is composed [394 U.S. 11, 84] of soft, silt-like material, because the water is for the most part relatively shallow, and because the elevation of the land along the shore is extraordinarily low, the shoreline often changes drastically merely as a result of temporary variations in winds and waves. Offshore islands sometimes appear or disappear spontaneously as a result of the same forces, and of course major hurricanes to which Louisiana - unlike California - is occasionally exposed, cause even more substantial changes.
In Louisiana, consequently, the Court cannot correctly say about its holding what it said with some plausibility in the second California case:
Nothing was said in the second California opinion indicating that the treaty provisions the Court borrowed in that case were to be mechanically used to fit every land dispute. The treaty was chosen there because the Court thought it provided the "best and most workable definitions available" in the dispute between California and the United States; the doctrine cannot fit all cases. If it worked for stability in California, it has a directly opposite effect in Louisiana. Moreover, the doctrine is tending to bring about interminable litigation. Passed 15 years ago, the Act has generated litigation that is not yet abating; we have another dispute similar to this one before us now, and neither the United States nor the State indicates that there is not far more time-consuming litigation still to come. In fact, discussion of this case by the Court requires 63 pages in what appears to me to be as succinct and clear an opinion as could have been written. And even yet the end of the dispute has not arrived. How many years the Master who must now be appointed will have to work, how many persons must be hired to help him, no one can predict. Settling and identifying boundaries on land is a surveyor's job; he must go to the land with his instruments and mark it off. Identifying an ocean boundary, we are told by the briefs and arguments of both parties here, is a much more complex job; it takes much time by surveyors, cartographers, photographers, and oceanographers, a knowledge of angles, tides, rolling waters, higher mathematics, etc. 9 Shorelines are constantly changing, and thus under the Court's formula even this painstaking work cannot provide a means of marking the boundary for all time. I cannot accept the argument that Congress ever intended to impose on this Court such an unjudicial job. I turn therefore to Louisiana's [394 U.S. 11, 86] contentions that Congress long ago adopted a plan and selected a government agency to determine where the inland water line is, that this agency has considered and determined that line, marking it as required by law, and that this line, which is not movable but fixed, provides the stability and certainty necessary to make the purchase and exploitation of oil leases on submerged lands a commercial success. To the extent that my analysis is inconsistent with other possible interpretations of the second California case, it must be recognized that the usual reasons for strong deference to prior precedent are almost wholly absent here. Stare decisis is a valuable principle because by making the governing legal rules predictable, it enables private parties to determine their rights without litigation and enables lower courts to dispose of the great bulk of disputes that do result in litigation. In the present unique situation, however, only a small handful of parties is affected by the governing legal rule; settlement entirely out of court is highly unlikely under the Court's Convention rule; and in practice though not of necessity, cf. 28 U.S.C. 1251 (b) (2), all these disputes are being brought within the original jurisdiction of this Court. Under these circumstances this Court should certainly not adhere blindly to its previous holdings, particularly where, as here, the State involved was not a party to the prior litigation and the claim raised here by Louisiana under the 1895 Act was never considered in the prior litigation.
I dissent from the Court's holding.
[ Footnote 1 ] 67 Stat. 29, 43 U.S.C. 1301-1315.
[ Footnote 2 ] For this reason it is difficult to understand why the Federal Government is subjecting the State of Louisiana and this Court to a long series of technical and wasteful lawsuits. When all of them are over the United States will have little more undersea land than it already had. The only practical difference that I can see at the moment if the Federal Government wins is that it, instead of the State, will have power to lease the land to some oil company. On the other hand should Louisiana win, it can lease the land perhaps at a bigger price and then, as I pointed out in a prior separate opinion, United States v. Louisiana, 363 U.S. 1, 85 , 98-100, devote its oil income to public education.
[ Footnote 3 ] 44 Dept. State Bull. 609; 1964. 15 U.S. T. (pt. 2) 1607, T. I. A. S. No. 5639.
[ Footnote 4 ] "History is subject to geology. Every day the sea encroaches somewhere upon the land, or the land upon the sea; cities disappear under the water, and sunken cathedrals ring their melancholy bells. Mountains rise and fall in the rhythm of emergence and erosion; rivers swell and flood, or dry up, or change their course; valleys become deserts, and isthmuses become straits. To the geologic eye all the surface of the earth is a fluid form, and man moves upon it as insecurely as Peter walking on the waves to Christ."
W. & A. Durant, The Lessons of History 14-15 (1968).
[ Footnote 5 ] The propriety of using the Coast Guard line as the seaward line of inland waters was not litigated in the second California case. The issue was not raised by the pleadings; nor was it argued. The point was raised once on oral argument when MR. JUSTICE BRENNAN asked if the United States relied on the Coast Guard line. Mr. Cox, [394 U.S. 11, 80] the Solicitor General, replied that the United States placed no reliance on it, the purpose of that line being "to indicate where the inland rules applicable to vessels control and where the international ocean rules control." He added that Louisiana will contend, when her case reaches here, that the Coast Guard line does control but that it was not involved in the California segment of the litigation.
[ Footnote 6 ] United States v. California, 332 U.S. 19 (1947).
[ Footnote 7 ] This is vividly demonstrated by the colloquy between MR. JUSTICE BRENNAN and Solicitor General Cox, referred to in n. 5 above:
[ Footnote 8 ] Memorandum for the United States in Reply to Louisiana's Brief in Opposition to Motion for Leave to File Complaint, March 7, 1956, pp. 9-10.
[ Footnote 9 ] See my dissent filed today in the Texas Boundary Case. Ante, at 8, n. 2.
[ Footnote 10 ] 28 Stat. 672. This Act has been changed by substituting for the Secretary of the Treasury the Secretary of Commerce, and later by placing the responsibility with the Commandant of the Coast Guard. Now 33 U.S.C. 151.
[ Footnote 11 ] E. g., 23 Stat. 438 (1885); 26 Stat. 320 (1890).
[ Footnote 12 ] See, e. g., Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 541 (1885); Geofroy v. Riggs, 133 U.S. 258, 267 (1890).