Lecture I.

The purpose of the following attempt to determine the province of jurisprudence, stated or suggested. – The manner of the following attempt to determine the province of jurisprudence. – Law: what, in most comprehensive literal sense. – Law of God. – Human Laws. – Two classes: 1st Laws set by political superiors; 2ndly, Laws set by men not political superiors. – Objects improperly, but by close analogy, termed laws. – The two last placed in one class under the name positive morality. – Objects metaphorically termed laws. – Laws or rules, properly so called, are a species of commands. – The meaning of the term command. – The meaning of the term duty. – The terms command and duty are correlative. – The meaning of the term sanction. – To the existence of a command, a duty, and a sanction, a violent motive to compliance is not requisite. – Rewards are not sanctions. – The meaning of the term command, briefly re-stated. – The inseparable connection of the three terms, command, duty, and sanction. – The manner of that connection. – Laws or rules distinguished from commands which are occasional or particular. – The definition of a law or rule, properly so called. – The meaning of the correlative terms superior and inferior. – Laws (improperly so called) which are not commands. – Laws (properly so called) which may seem not imperative.

in my last lecture, I endeavoured to answer an objection which may be urged against the theory of utility. And to the purpose of linking my present with my last lecture, I will now restate, in a somewhat abridged shape, that summary of the objection and the answer with which I concluded my discourse.

The objection may be put briefly, in the following manner.

If utility be the proximate test of positive law and morality, it is impossible that the rules of conduct actually obtaining amongst mankind should accord completely and correctly with the laws established by the Deity. The index to his will is imperfect and uncertain. His laws are signified obscurely to those upon whom they are binding, and are subject to inevitable and involuntary misconstruction.

For, first, positive law and morality, fashioned on the principle of utility, are gotten by observation and induction from the tendencies of human actions. Consequently, till these actions shall be marked and classed with perfect completeness, and their effects observed and ascertained with similar completeness, positive law and morality, fashioned on the principle of utility, must be more or less defective, and more or less erroneous. And, these actions being infinitely various, and their effects being infinitely diversified, the work of classing them completely and of collecting their effects completely, transcends the limited faculties of created and finite beings.

the term law, or the term laws, is applied to the following objects: – to laws proper or properly so called, and to laws improper or improperly so called: to objects which have all the essentials of an imperative law or rule, and to objects which are wanting in some of those essentials, but to which the term is unduly extended either by reason of analogy or in the way of metaphor.

Strictly speaking, all improper laws are analogous to laws proper: and the term law, as applied to any of them, is a metaphorical or figurative expression.

For every metaphor springs from an analogy: and every analogical extension given to a term is a metaphor or figure of speech. The term is extended from the objects which it properly signifies to objects of another nature; to objects not of the class wherein the former are contained, although they are allied to the former by that more distant resemblance which is usually styled analogy. But, taking the expressions with the meanings which custom or usage has established, [there is a difference between an employment of a term analogically and a metaphor.

Analogy is a species of resemblance. The word resemblance is here taken in that large sense, in which all subjects which have any property in common, are said to resemble.

[although it is not the object of this course of lectures to treat of the science of legislation, but to evolve and expound the principles and distinctions involved in the idea of law, it was not a deviation from my subject to introduce the principle of utility. For I shall often have occasion to refer to that principle in my course, as that which not only ought to guide, but has commonly in fact guided the legislator. The principle of utility, well or ill understood, has usually been the principle consulted in making laws; and I therefore should often be unable to explain distinctly and precisely the scope and purport of a law, without having brought the principle of utility directly before you. I have therefore done so, not pretending to expound the principle in its various applications, which would be a subject of sufficient extent for many courses of lectures; but attempting to give you a general notion of the principle, and to obviate the most specious of the objections which are commonly made to it.]

In my second lecture, I examined a current and specious objection to the theory of general utility.

positive laws, the appropriate matter of jurisprudence, are related in the way of resemblance, or by a close or remote analogy, to the following objects. – 1. In the way of resemblance, they are related to the laws of God. 2. In the way of resemblance, they are related to those rules of positive morality which are laws properly so called. 3. By a close or strong analogy, they are related to those rules of positive morality which are merely opinions or sentiments held or felt by men in regard to human conduct. 4. By a remote or slender analogy, they are related to laws merely metaphorical, or laws merely figurative.

To distinguish positive laws from the objects now enumerated, is the purpose of the present attempt to determine the province of jurisprudence.

In pursuance of the purpose to which I have now adverted, I stated, in my first lecture, the essentials of a law or rule (taken with the largest signification which can be given to the term properly).

In my second, third, and fourth lectures, I stated the marks or characters by which the laws of God are distinguished from other laws. And, stating those marks or characters, I explained the nature of the index to his unrevealed laws, or I explained and examined the hypotheses which regard the nature of that index.

In my fifth lecture, I examined or discussed especially the following principal topics (and I touched upon other topics of secondary or subordinate importance).

The conventions are completely silent as to the legal requirements for the existence of historic waters. However, a number of authoritative studies have been made and it is generally agreed that three requirements must be met before a claim to historic waters is duly established. These are: (1) the exclusive exercise of State authority; (2) long usage or the passage of time; and (3) the acquiescence of foreign States. In addition to these requirements, three related questions must also be considered: (1) the legal effect of protest; (2) the vital interests of the claimant State; and (3) the burden of proof. This chapter will address those six points in succession.

Exclusive exercise of State authority

Since a claim to historic waters is one over a maritime area which the coastal State considers as an integral part of its national territory, the type of jurisdiction exercised over that area should be essentially the same as that being exercised on the rest of the territory. More precisely, the coastal State must exercise an effective control over the maritime area being claimed to the exclusion of all other States. Naturally, the extent of control will vary depending on a number of factors such as the size of the maritime area, its remoteness and the degree of its usability. The actual control might be limited, but yet sufficient, in remote areas. In the words of Professor O'Connell, ‘just as in the case of remote and little used seas, very little in the way of effective exercise of sovereignty need be required’, to show that a State took whatever action was necessary to assert and maintain its authority and control over the area in question.

Geographical requirements for a coastal Archipelago

The geography required for the application of the straight baseline system was laid down by the International Court of Justice in the Fisheries Case of 1951. Having stated that the breadth of the territorial sea should be measured from the low-water mark, the Court examined three methods of implementing the low-water mark rule: the tracé parallèle, the arcs of circles, and the straight baseline system. It was in its discussion of the method of the tracé parallèle that the Court, in effect, described the kind of coast required for the application of the straight baseline system.

Two observations should be made about this passage. First, the straight baseline system is made applicable to two types of coast:' where it is deeply indented or where it is bordered by an Archipelago'. Of course, a coast could have both of those characteristics either in whole or in part. The other observation relates to the second type of coast, that is ‘where it is bordered by an archipelago such as the “skjaergaard”’.

It is generally recognized that the doctrine of contiguity forms the basis of the sector theory. Even those who invoke the boundary treaties of 1825 and 1867 look to that concept to reinforce their case. This section attempts to determine the extent to which States and international tribunals have relied on contiguity. This is followed by an appraisal of this concept as a principle of international law capable of generating title or sovereignty.

Contiguity in State practice

The notion of contiguity appeared in international law when principles for the acquisition of sovereignty over new territories were being developed. Acquisition through the act of discovery, accompanied by a formal taking of possession, having led to abuses, the Roman Law principle for the acquisition of property was introduced. It required the fulfilment of two conditions: the open intent to occupy (animus) and the actual occupation of a well-defined property (corpus). The second condition being difficult or perhaps impossible to fulfil in many instances, the doctrine of contiguity or geographic proximity was developed.

Under this doctrine, the effective occupation of part of a region or territory gave title to the whole of the unoccupied region or territory proximate enough to be considered as a single geographic unit with the occupied portion. The same doctrine, with the occasional nuance, has been presented under different names, in particular the following: proximity, propinquity, hinterland, adjacency, continuity, geographic unity and region of attraction.

The first use by a State of the doctrine of contiguity seems to have been made in 1844 during the Oregon controversy between the United States and Great Britain.

The straight baseline system of delimiting territorial waters was developed by Norway, beginning with its first Royal Decree of 1812. The system was approved by the International Court in 1951, and incorporated in the Convention on the Territorial Sea of 1958 and in the Law of the Sea Convention of 1982. Under this system, where a coast is deeply indented or is bordered by an Archipelago, it is permissible to draw straight baselines, across the indentations and between the outermost points of the islands, from which the territorial sea is measured. This geographic situation is commonly referred to as that of a coastal Archipelago.

At the Third Law of the Sea Conference, the applicability of the straight baseline system was extended to mid-ocean or oceanic Archipelagos. These are situated at such a distance from any mainland as to be considered an independent whole and constitute the national territory of a State called an Archipelagic State. Off-lying and oceanic Archipelagos forming an integral part of the territory of a continental State are not specifically provided for in the 1982 Convention.

In 1974, a group of nine States introduced a Working Paper proposing the right for a coastal State, with an off-lying Archipelago forming an integral part of its territory, to apply the straight baseline system to such an Archipelago, subject to the right of innocent passage. Also in 1974, Ecuador proposed that straight baselines be applicable ‘to Archipelagos that form part of a State, without any change in the natural regime of the waters of such Archipelagos or of their territorial sea’.

In 1983 Professor Donat Pharand spent a six-month study leave with Dalhousie Ocean Studies Programme in Halifax, Nova Scotia. For many of us at D.O.S.P., and also at Dalhousie Law School, this was a period of reunion and reacquaintance with an old friend and fellow alumnus. For students it was an introduction to one of Canada's most dynamic law teachers. For me it is a special pleasure to be asked to supply the foreword to the product of these years of labour.

There must be few readers indeed who are unaware of Professor Pharand's work and reputation in the specialized area of Arctic Ocean law and policy. His earlier book The Law of the Sea of the Arctic (University of Ottawa Press, 1973) is, of course, still one of the standard reference works in the area, but the general law of the sea has undergone major surgery in recent years, and the policy issues associated with the Arctic Ocean have assumed a more critical significance as a result of more pressing resource and industrial demands on this remote and unique environment.