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This chapter first appraises the rules of international law that are applicable to disputed territorial sea areas. Article 12 1958 CTS, whose wording is essentially repeated in Article 15 LOSC, provides as follows: historic titles and special circumstances allow States to extend their claim beyond the equidistance boundary; in the absence thereof, the equidistance boundary divides the area of overlapping territorial sea claims. At UNCLOS III, only limited debates occurred in relation to disputed territorial sea areas. As Article 15 LOSC is limited in its sphere of operation once a State invokes historic title or special circumstances, the following question arises: do other rules of international law exert their influence either alongside the interim rule contained in this provision; or when it is inapplicable, what alternative rules can be invoked as a substitute in disputed territorial sea areas? Disputed contiguous zones areas may arise outside the 12 nautical miles limit of the territorial sea. Whereas the issue of an interim rule for overlapping contiguous zone claims was addressed in Article 24(3) 1958 CTS, stipulating that the entitlements of States to a claimed contiguous zone would automatically extend up to the equidistance boundary, the LOSC abandoned this approach.
As to the foundation of TG, TI come in all sorts of shapes and sizes. They are enshrined in international treaties, intrastate agreements or domestic legal acts and laws. The TI we examined however share a number of features. First, their origin or common ‘breeding ground’: non-constitutionality. As a central feature of contemporary TG, non-constitutionality calls for nuanced analysis as TG progressing in stages can be ‘interim-constitution-based’. Second, the method of supraconstitutionality, allowing TI to (partly) supersede, if only temporarily, both the previous and coming constitutional order. Supraconstitutionality then serves as a catalyser for the third common feature of TI: the triple purpose of pacification, self-limitation, and reconstitutionalisation.
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