Lloyd's Maritime and Commercial Law Quarterly
CENTRE COMMENT* FROM U.W.I.S.T.: THE EXTRA-LEGAL EXTENT OF THE TERRITORIAL LORE
John Gibson
M.A. (Oxon.).
Changes in the sovereignty of a State may reasonably be thought to concern both its own subjects and those of other nations. Yet, a recent alteration of British territorial waters has passed virtually unnoticed, and exemplifies the conflict between theory and practice in the law of maritime boundaries.
The Territorial Waters (Amendment) Order in Council 1979, which was enacted at Buckingham Palace on May 23, 1979, and came into operation on June 18, redefines the baselines from which the breadth of the territorial sea adjoining the west coast of Scotland is measured. Under art. 4 of the Geneva Convention on the Territorial Sea and the Contiguous Zone 1958,1 coastal States are entitled to adopt a system of straight baselines in localities where their coastline is either deeply indented or fringed by islands. Accordingly, when the United Kingdom implemented the Convention in 1964, a series of 25 lines, extending for 300 miles from Cape Wrath to the Mull of Kintyre, and encompassing the Outer Hebrides, was introduced by Order in Council.2 Subsequent surveys of the region revealed inaccuracies of up to 400 metres in the original co-ordinates of latitude and longitude, which have, therefore, been replaced by 27 points of reference identified in the new legislation.
The deficiencies of the 1979 Order are attributable to the fact that it was passed by the Privy Council independently of Parliament, in the exercise of an assumed Royal prerogative to declare the limits of British territory. The constitutional propriety of such executive action has in the past been questioned,3 and those doubts may now be reinforced, since the latest measure involves both an enlargement and an abandonment of areas previously incorporated in 1964. Irrespective of the existence of a prerogative right to acquire territory in peacetime, there can be little justification for a correlative power of surrender. Moreover, revision of the baselines is significant not only in the context of sovereignty, but also affects fishery limits, criminal jurisdiction and the
* Centre for Marine Law and Policy. University of Wales Institute of Science and Technology.
1 Treaty Series No. 3 (1965), Cmnd. 2511. The Geneva Convention does not define the breadth of the territorial sea, since there was disagreement about this matter. Until a successful outcome of UNCLOS III is achieved, the distance must depend on customary international law, under which the U.K. currently claims sovereignty within a three-mile limit.
2 Territorial Waters Order in Council 1964, art. 3, Sched.
3 W. R. Edeson, “The prerogative of the Crown to delimit Britain’s maritime boundary” (1973) 89 L.Q.R. 364. The validity of the prerogative power was assumed in R. v. Kent Justices, ex p. Lye [1967] 2 Q.B. 153.
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