Law of the Sea – History, Evolution, and Provisions

Law of the Sea – History, Evolution, and Provisions

INTRODUCTION:

“For hundreds of years, the marine environment was free from the regulation of fishing, shipping, and resource exploitation. Over time, coastal States (countries) had an increased interest in national security and the enforcement of laws to protect its commerce and marine resources. As a result, a balance was needed to maintain the freedom of navigation that many foreign maritime interests had relied upon. This need for balance is captured in the history of the law of the sea.” [1]

On December 10, 1982, the United Nations Convention on the Law of the Sea was signed to make the Law of the Sea a branch of international law and codify it. In 1994 it was confirmed by 60 countries and by the 21^st century it was confirmed by more than 150 countries.

The constitution for the oceans had laws on the topic of territorial waters, sea-lanes, and ocean resources.

This article is going to deal with the concept and understanding of the law of the sea by explaining its history, evolution, and provisions.

HISTORY AND EVOLUTION:

Way back in the sixteenth–century, the nations started to control the coastal areas.

As it was said earlier there were problems regarding the sea areas and it was exploited, therefore, on the seventeenth century, Grotius (the father of international law and doctrine on the freedom of the seas), acknowledged the existence of a nation’s jurisdiction over the coastal waters, which could be effectually organized from the land.

The level to which a nation could regulate its coastal waters has largely tothe reach of its cannons on the shore.

“Cannon Shot” Rule: 3 Nautical Miles (nm) limit of the territorial sea.

 “Customs Waters” or “Contiguous Zone”:  In the U.S., the creation of a territorial sea and contiguous zone date back to as early as the late 1700s in response to issues of national security and law enforcement in coastal areas, including a 1793 diplomatic note sent from Thomas Jefferson. [2]

Legislation passed by Congress in 1799 to allow the boarding of foreign-flag vessels within 12nm from the coast. [3]

In 1930: Proprietary rights were established with a condition that it should not interfere with a vessel’s right of innocent passage.

In 1945: The rights to explore and exploit the oil and gas resources of the continental shelf outside of the 3 nm territorial sea by President Truman.

Due to the exploration and exploitation of the oil and gas resources in the continental shelf, in 1953, the U.S. Congress enacted legislation over the federal and state control of the continental shelf. 

 And further, in 1958, international conventions were concluded in Geneva on the territorial sea, contiguous zone, and continental shelf. 

President Truman issued another Proclamation regarding the concept of a fishery conservation zone however Congress did not pass any laws concerning a 200 nm fishery conservation zone up to 1976. Later this grew into a zone when the coastal nations had exclusive right to control overall economic exploration and exploitation of the natural resources off its coast.

In 1982: The United Nations Convention on the Law of the Sea (UNCLOS) was codified with asserting a 12 nm territorial sea, 24 nm contiguous zone, and 200 nm EEZ.

In the 20^th century, there was a huge development in trade and commerce, therefore there was a huge usage and exploitation of sea resulting in the formation of the classic principle of ‘mare liberium’ or ‘freedom of the seas’ by Grotius. Since then the Law of the sea has been established progressively and step by step.

• Essentials of the law are,
• Of non-regulation and
• Laissez-faire and
• Except that of territorial waters, the law essentially endorsed the doctrine of ‘open sea’.

As said earlier many countries joined with the United Nations Convention on the Law of the Sea and even before that, they started making very general claims to safeguard their economic and military interests.

The absence of uniformity and to resolve the problems there was an urgency for the codification of law.

In 1949, the International Law Commission prepared drafts and on that basis, the First United Nations Conference on the Law of the Sea took place at Geneva.

PROVISIONS:

1. Geneva Convention on the Law of Sea, 1958. [4]

The United Nations Conference on the Law of the Sea opened for signature following four conventions and an optional protocol.

• The Convention on the Territorial Sea and the Contiguous Zone (CTS)
• The Convention on the High Seas (CHS)
• The Convention on Fishing and Conservation of the Living Resources of the High Seas (CFCLR)
• The Convention on the Continental Shelf (CCS) and
• The Optional Protocol of Signature concerning the Compulsory Settlement of Disputes (OPSD)

86 states attended the conference and to adopt the provisions the committee structured itself in five main committees and a plenary. The method followed was the provisions required to attain a simple majority, so that it could be adopted in one of the committees and a two-thirds majority required for the provision to reach the plenary.

The breadth of the territorial sea was left undecided because of the procedural rule mentioned above.

“Although a 12-mile breadth probably could have secured approval in the committee, it was clear that it could not do so in plenary, thus the question was left unresolved by the CTS.” 

2. Geneva Convention on the Law of Sea, 1960.

The General Assembly requested the Secretary-General to convene a Second United Nations Conference on the Law of the Sea to consider the topics of the breadth of the territorial sea and fishery limits. Later it was understood that both these conferences on the Law of the Sea were scarce and left so many important matters unsolved.

To solve the Matters which were not authoritative to formulate the law of the sea and to formulate some of the new interests, the Third Law of the Sea Conference held.

3. Third United Nations Conference on the Law of Sea. [5]

An Ad Hoc Committee was formed on 18 December 1967 to Study the Peaceful Uses of the Sea-Bed and the Ocean Floor, beyond the Limits of National Jurisdiction, consisting of thirty-six Member States. This resulted in adopting a resolution by the General Assembly on 21 December 1968. 

The resolution is that,  to establish a Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor, beyond the Limits of National Jurisdiction, consisting of forty-two Member States

The Conference, in which 160 states participated, held eleven sessions between 1973 and 1982. At that last session, the Conference adopted the Law of the Sea Convention in 1982.

4. Convention on the Law of the Sea, 1982. [6]

• The Convention comprises of 320 Articles spread more than 17 sections and nine additions. Aside from these, there are four goals.
• The Convention involves the ground secured by the four Geneva Convention of 1958 and makes some new systems.
• Truth be told, a large number of the provisions repeat verbatim or the provisions of the Geneva Conventions or give increasingly definite guidelines on issues secured by them.
• It contains provisions on those issues on the new legitimate systems of the Exclusive Economic Zone and the deep sea-bed.
• The Convention comprises an in-depth mechanism for the settlement of disputes, including an International Tribunal for the Law of the Sea.
• It additionally accommodates the necessary legal settlement of the majority of the debates that may emerge under the Convention, in line with one of the gatherings to the question.

Article 3 – “The breadth of the territorial sea”

 Every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined by this Convention.

Article 33 – “Contiguous zone”

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

(b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

Article 83 – “Delimitation of the continental shelf between States with opposite or adjacent coasts.”

1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.

3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.

 4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.

Article 57 –  “The Breadth of the exclusive economic zone.”

The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

As discussed early, ‘mare liberium’ or ‘freedom of the seas’ by Grotius i.e., the sea cannot be owned, however under article 87(2) of the Convention the freedom of the high seas has been mentioned.

Article 87 –  “Freedom of the high seas”

2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.

Case Law: The Continental Shelf between Libya and Malta.

‘The 1982 Convention is of major importance, having been adopted by an overwhelming majority of States; hence it is the duty of the court to consider in what degree any of its relevant provisions are binding upon the parties as a rule of customary international law”

CONCLUSION:

Thus the Convention is a significant accomplishment and its ambit is extremely wide and India has some notable position regarding the articles of the convention discussed above.

India’s position concerning the law of the sea is in general administered by Article 297 of the Constitution of India, and the Territorial Water, Continental Shelf, EEZ, and other Maritime Zones Acts.

REFERENCES:

1. History Of The Maritime Zones Under International Law – From The Cannon Shot Rule To Unclos, https://coast.noaa.gov/data/Documents/OceanLawSearch/NOAA%20Office%20of%20Coast%20Survey,%20History%20of%20the%20Maritime%20Zones%20Under%20International%20Law.pdf.
2. Text of November 8, 1793, diplomatic note (sent by Secretary of State Thomas Jefferson to both Britain and France.
3. Chapter 22, section 54, 1 Stat. 668 (1799), https://uscode.house.gov/statviewer.htm?volume=1&page=668.
4. 1958 Geneva Conventions on the Law of the Sea, https://legal.un.org/avl/ha/gclos/gclos.html.
5. Third United Nations Conference on the Law of the Sea, https://legal.un.org/diplomaticconferences/1973_los/.
6. United Nations Convention on the Law of the Sea, https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.
7. Law of The Sea – History, Evolution, and Provisions, Legal bites, https://www.legalbites.in/public-international-law-notes-law-of-sea/.

Also Read: SOURCES OF INTERNATIONAL LAW