Territorial Waters

• Author: International Law Group

Invoking the U.S. Supreme Court's original jurisdiction, the State of Alaska sued the United States in 2000 over title to certain submerged lands located in southeastern Alaska. One of the submerged lands consists of pockets and enclaves underlying waters between the southeastern Alaska islands known as the Alexander Archipelago.

All points within the pockets and enclaves are more than three sea miles from the mainland and from any individual island of the Archipelago. Alaska alleged that the waters of the Alexander Archipelago are "historical inland waters," and therefore U.S. territory.

The Court holds that the waters at issue were not historically inland waters. Where a U.S. State wishes to claim submerged lands based on an area's status as historic inland waters, it has to show that the U.S. : (1) exercises authority over the area; (2) has done so continuously; and (3) has done so with the acquiescence of foreign nations. The U.S. must somehow have asserted the right to exclude innocent passage of vessels, even if it has never actually exercised the right. See 1958 Convention on the Territorial Sea and Contiguous Zone, Art. 14, subds. 1,4.[15 U.S.T. 1606; T.I.A.S. 5639; 516 U.N.T.S. 205].

As it often does in original suits, the Court appointed a Special Master to develop the facts. After making a thorough examination, the Master recommended that the Court grant summary judgment to the U.S. The Master found that Alaska had at best presented "questionable evidence" that the U.S. has exercised the kind of authority over the waters needed to prove an historic waters claim. Challenging the Master's recommendation, Alaska identified four historical events as supporting its position that the Alexander Archipelago's waters qualify as historic inland waters. The State first pointed to incidents during the period of Russian sovereignty.

"In 1824, the United States and Russia entered into a treaty that, inter alia, granted United States vessels the right, over the next 10 years, to 'frequent, without any hindrance whatever, the interior seas, gulphs, harbours, and creeks [of the Alexander Archipelago], for the purpose of fishing and trading with the natives of the country.'" [2146] (see Convention Between the United States of America and Russia, Art. 4, 8 Stat. 304 (1825). In Alaska's view, the Treaty shows that the Russian claim had extended to the entire Archipelago.

The Court, however, is unpersuaded. "The principal problem with Alaska's...