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Bynkershoek Is Old Hat in a World of Varying Territorial Claims

March 26, 1986

NEW YORK (AP) _ It used to be that a nation’s territorial waters extended as far as its cannons could fire.

Even now, when protracted negotiations are the customary way of marking offshore boundaries, Libya’s sweeping claim to the Gulf of Sidra was staked by force of arms and is now being contested by U.S. Navy firepower.

The limit of three nautical miles was proposed by a Dutch jurist, Cornelis van Bynkershoek, in 1702 in his book ″De Domine Maris″ (on the rule of the sea).

That is no longer the standard. The Law of the Sea Treaty signed by more than 100 nations in 1982 moved the territorial limit to 12 miles, which has nothing to do with the range of modern weapons.

″It represents a great deal of negotiation and accomodation over a period of several decades,″ Scott Allen, associate director of the Law of the Sea Institute and professor of political science at the University of Hawaii in Honolulu, said Tuesday.

The United States did not sign the treaty, objecting to its provision on seabed mining, and continues to claim only a three-mile limit from its coasts. However, Washington recognizes other nation’s claims of 12 miles or less.

″The British and a few of the other old established countries claim three miles, and the Russians and almost the entire Third World claim 12 miles,″ said William Thomas Mallison, professor of international law at George Washington University.

Other claims range from Finland’s four miles to six miles by Greece and Turkey, 50 miles by Cameroon and Madagascar, 150 miles by Senegal and 200 miles by Argentina, Benin, Brazil, Congo, Ecuador, El Salvador, Ghana, Liberia, Nicaragua, Panama, Peru, Sierra Leone and Uruguay, according to The Statemen’s Year-Book.

Libya adheres to the 12-mile territorial limit, except for the Gulf of Sidra which it claims as ″internal waters.″ Libyan leader Moammar Khadafy imagines the border - his ″line of death″ - as a straight line at 32 degrees 30 minutes north latitude, from the city of Msurata on the west to Benghazi on the east.

″That’s an all-encompassing and radical claim,″ Allen said.

Most nations, including the United States, reject Libya’s claim to 150,000 square miles of ocean and regard the Gulf of Sidra as the open sea.

State Department spokesman Charles Redman said only one nation, Burkina Faso, is known to recognize the Libyan claim.

If Libya only claimed the gulf as its territorial waters, ships of any nations would have a right to ″innocent passage,″ or a right to pass through peacefully and expeditiously. Under the Law of the Sea Treaty, one nation has no right to stage military maneuvers in another nation’s territorial waters.

But if Libya could make good its claim that the Gulf is an internal water, Allen said, ships of other nations have no right to be there for any purpose, peaceful or provocative.

The United States cites the 1958 Convention on the Territoria Sea and Contiguous Zone, which allows a nation to claim internal waters only if the mouth is less than 24 miles wide. In that case, the 12-mile territorial limit extending from each side of the mouth would completely cover the opening of the bay.

The Gulf of Sidra misses that standard by about 250 miles.

Libya laid claim to the waters of the gulf following an attack on a U.S. C- 130 transport plane over the Mediterranean on March 21, 1973.

John Scali, then the chief U.S. delegate at the United Nations, said the plane was operating more than 12 miles beyond Libya’s coast, but within a security zone which Libya had proclaimed as extending 100 miles around its capital, Tripoli.

On Oct. 19, 1973, Col. Moammar Khadafy’s government informed the U.N. legal office that it regarded the Gulf of Sidra as ″internal waters.″

The United States and many other nations rejected the claim. This week, and in 1981, Libyan and U.S. forces clashed over the gulf.

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