¹ See Official Records of the General Assembly, Fifth Session, Supp. No. 12, A/1316, Pt. VI, Ch. III.

² See Official Records of the General Assembly, Eighth Session, Supp. No. 9, A/2456, Ch. Ill [48 A.J.I.L. Supp. 26 (1954)].

³ See Official Records of the General Assembly, Eighth Session, Supp. No. 9, A/2456, par. 165.

⁴ Mr. Edmonds entered a reservation to the articles on fishing (Arts. 24 to 33) for the reasons stated by him in the course of the discussions. Sir Gerald Fitzmaurice recorded dissent from the last sentence of par. 1 of Art. 22 (hot pursuit from a contiguous zone) for the reasons given in the summary record of the 330th meeting. Mr. Hsu, for the reasons explained in the summary record of the 330th meeting, entered a reservation to the second paragraph of the commentary to Art. 14 (piracy). Mr. Krylov abstained in the vote on Art. 9 (signals and rules for the prevention of collisions), and could not agree to the text of, and commentary to, Art. 14 (piracy), and voted against Art. 31 (arbitration in fishery disputes), for the reasons stated in the summary record of the 330th meeting. Mr. Seelle, for reasons explained in the course of the discussions, expressed reservations on some points regarding the position taken by the Commission with respect to the continental shelf and the freedom of the high seas. Mr. Zourek explained that, although he had voted for the draft on the régime of the high seas as a whole, he was still opposed to Art. 5 (right to a flag), Art. 9 (signals and rules for the prevention of collisions), Art. 31 (arbitration in fishery disputes) and Art. 33 (binding force of the decisions of the arbitral commission), for reasons which he had stated during the discussions. He maintained his reservations concerning the definition of piracy contained in Art. 14 and did not accept the comments on that article.

⁵ See Official Records of the General Assembly, Eighth Session, Supp. No. 9, A/2456, Ch. III [48 A.J.I.L. Supp. 26 (1954)].

⁶ See Official Records of the General Assembly, Eighth Session, Supp. No. 9, A/2456, par. 71.

⁷ Ibid., pars. 105 et seq.

⁸ See Official Records of the General Assembly, Sixth. Session, Supp. No. 9, A/1858, Annex, Pt. II.

⁹ See Official Records of the General Assembly, Eighth Session, Supp. No. 9, A/2456, pars. 92 et seq. [48 A.J.I.L. Supp. 38 (1954)].

¹⁰ See Official Records of the General Assembly, Sixth Session, Supp. No. 9 A/1858, Annex: Draft Articles on the Continental Shelf and Related Subjects, Pt. II, par. 5 of comment to Art. 2.

¹¹ These articles are identical with Arts. 25 to 33 of the provisional articles concerning the regime of the high seas contained in Ch. II of the present report. For comments on the articles see Ch. II.

¹² See Ch. IV of the Report of the Commission covering the work of its sixth session, Official Records of the General Assembly, Ninth Session, Supp. No. 9, A/2693 [49 A.J.I.L. Supp. 23 (1955)].

¹³ Mr. Edmonds entered a reservation to Art. 3 (breadth of the territorial sea), Art. 5 (straight base lines), Art. 7 (bays), and Art. 25 (passage of warships) for the reasons stated in the course of the discussions. Sir Gerald Fitzmaurice recorded dissent from the first sentence of par. 1 of Art. 25 (passage of warships) and abstention on Art. 5 (straight base lines), and Art. 7 (bays), in each case for the reasons given in the summary record of the 330th meeting. Mr. Gareía-Amador, for reasons stated in the course of the discussion (A/CN.4/SR. 308, 309, 310, 313, 317, 318 and 328), entered certain reservations in respect to Arts. 3 (breadth of the territorial sea) and 7 (bays) and to the comments on these articles. Mr. Krylov voted against Art. 3 (breadth of the territorial sea) and Art. 24 (government vessels operated for non-commercial purposes), and abstained in the votes on Art. 18, par. 4 (suspension of innocent passage through straits), Art. 23 (government vessels operated for commercial purposes), and Art. 25, par. 2 (passage of warships through straits), in each case for the reasons stated in the summary records of the 330th and other meetings. Mr. Salamanca voted against Art. 3 (breadth of the territorial sea) and the commentary thereto for the reasons stated in the summary records of the 312th, 313th and 328th meetings. Mr. Scelle, for reasons explained in the course of the discussions, expressed reservations on some points regarding the position taken by the Commission with respect to the innocent passage of ships through the territorial sea. Mr. Zourek explained that although he had voted for the draft articles on the régime of the territorial sea as a whole, for reasons which he had stated during the discussion he did not accept Art. 3 (breadth of the territorial sea), the provisions concerning straits (Art. 12, par. 4, Art. 18, par. 4, and Art. 25, par. 2), Art. 22 (arrest of vessels), and Art. 23 (government vessels operated for commercial purposes), or the comments on these articles. He also maintained his reservations regarding Art. 7, on bays.

¹⁴ Before drafting the final text of an article on the breadth of the territorial sea, the Commission wishes to have the comments of governments, particularly on par. 3.

¹⁵ International Court of Justice Reports, 1951 [46 A.J.I.L. 348 (1952)].

¹⁶ Cf. A/CN.4/61/Add. 1.

¹⁷ International Court of Justice Reports, 1948 and 1949.

¹⁸ See Official Records of the General Assembly, Ninth Session, Supp. No. 9, A/2693, p. 21.

¹⁹ Faris Bey el-Khouri, for the reasons set forth in the summary record of the 330th meeting, declared that he was opposed to any statement in the report of a dissenting opinion.

* See 49 A.J.I.L. Supp. 26–43 (1955) for text of provisional articles referred to in these Comments by Governments.

²⁰ International Court of Justice Reports, 1951, pp. 116 et seq.

²¹ See Official Eecords of the General Assembly, Eighth Session, Supp. No. 9, A/2456, p. 54.

²² The observations of the Government of Mexico were received after the end of the seventh session of the International Law Commission.

²³ Her Majesty’s Government oppose the separate treatment of warships in these articles.

Sections 3 and 4 of Article 26, referring to warships, are substantially embodied as Sections 7 and 8 of the new Article 17 proposed by Her Majesty’s Government.

²⁴ Her Majesty’s Government feel obliged to point out that the wording “any act prejudicial to the security or public policy of that state or to such other of its interests as the territorial sea is intended to protect” is so worded as to work in favour of the coastal state, and may be open to abuse. It should be made clear that the burden of proving that the passage is “prejudicial, etc,” lies with the coastal state and that this burden is one which must be discharged according to the criteria of international law, rather than the law of the coastal state.

Her Majesty’s Government therefore suggest that it would be better if the matters concerning which a ship may commit an offence, e.g., security, customs, immigration, could be specified. This method is already used in Article 21.

²⁵ While this paragraph, which largely follows paragraph 1 of the Commission’s Article 19, is probably satisfactory, there ought to be some elucidation of the obligation “to use the means at its disposal to safeguard in the territorial sea the principle of freedom of maritime communication.” Is there, for instance, a legal obligation upon the coastal state to remove wrecks, or even to give adequate warning of their existence? To what extent is there a legal obligation upon the coastal state to provide lights and other navigational facilities? Care should be taken not to put the duty of the coastal state too high or to introduce any principle of “strict liability.” (It is suggested that the Commission give further elucidation to these questions.)

²⁶ See A/CN.4/53.

²⁷ See the decision of the Court of 18 December 1951, in the controversy about fishing between England and Norway, in which it is underlined that the proposal according to which the distance between these two points should not be more than 10 miles has not gained the authority of a general rule in international law.

²⁸ K. Strupp: Eléments du Droit international public, I, p. 181. The American Institute for International Law is also in favour of this principle.