When Good Courts Go Wrong: A Critique of the Supreme Court's Domestic Maritime Boundary Jurisprudence
In addressing the concerns presented in the introduction, Part II of this article will argue that the Supreme Court and its Special Masters have misapplied the rules embodied in the 1958 Convention and UNCLOS in regard to the establishment of juridical bays, in every domestic maritime boundary case since 1965. Part III will criticize the approach taken by the Special Master and thereafter by the Court in the Alaska case, and will suggest the correct methodology to be applied in cases with complex coastlines, such as the Alexander Archipelago. Part IV will briefly suggest that U.S. policy on the use of the Straight Baseline methodology, i.e., forbidding its use along its own coasts while approving it for third states, is out of date and is in urgent need of reconsideration. The article will conclude in Part V with two important points: One, that the U.S. Supreme Court's approach to the establishment of juridical bays along U.S. coasts has become seriously flawed and overly complicated and must be taken back, perhaps in the next federal/state conflict, to its roots in the 1958 Convention. Two, that the U.S. State Department and other relevant executive agencies must reconsider U.S. policy on the establishment of straight baselines along its coasts. This is important because, if conservatively applied, a new policy may obviate the need to spend several years and hundreds of thousands of dollars on each maritime boundary delimitation case as it comes before the U.S. Supreme Court. Conservative use of straight baselines by the United States and its coastal states will better serve our national security and commercial interests while not unduly interfering with freedom of the seas.
Gayl S. Westerman, When Good Courts Go Wrong: A Critique of the Supreme Court's Domestic Maritime Boundary Jurisprudence, 8 Loy. Mar. L.J. 1 (2010), http://digitalcommons.pace.edu/lawfaculty/755/.