PUBLIC INTERNATIONAL LAW

Module 11: LAW OF SEA

Synopsis:
1. Evolution
2. Continental Shelf
2.1 Territorial Sea
2.2 Contagious Zone
2.3 Exclusive Economic Zone
2.4 Continental Shelf (maximum extent)
3. International Seabed Authority

1. Evolution of Law of Sea:

The foundation of the modem concept of the freedom of the seas is found
in the enduring work of Hugo Grotius. Grotius main thesis was that the seas and
oceans of the world could not be the object of private or state appropriation but
were to be accessible to all nations. A decade after Grotius wrote, an English
scholar, Selden, set out to refuse his arguments and defended the English claims
by his work Mare Clausum. As the title suggests, Selden argued that the sea
could be owned by the maritime powers. Mare Clausum means closed sea.

There was no distinction between res nullius and res communis before
Hugo Grotius’ Mere liberum.

Several states i.e. Venice, Denmark and England claimed rights over
portions of the high seas. In the 15th and 16th century, Venice had made
territorial claims to the Adriatic Sea, England to the North Sea, the channel and
large areas of all the northern seas. In 1493 Spain claimed the Pacific Ocean and
the Gulf of Mexico, while Portugal claimed the Indian Ocean and most of the
Atlantic.

In the 18th century this process ultimately changed as a result of state

practices.

Freedom of the high seas had gradually gained international recognition

as a general legal principle, but it has ever since been shaped and reshaped by
some politico, economic reality which gave it birth. The dominant principle
governing use of the seas for most of the past 400 years has been the freedom of
the seas. Since Hugo Grotius published Mare Liberum in 1609, freedom of the
seas has reined supreme, both supporting the interests of the major maritime
powers and being enforced by them. It was not until after the Second World
War that this principle began to face a serious challenge, ironically, by the
United States.

In 1945, President Harry S Truman, responding in part to pressure from

domestic oil interests, unilaterally extended United States jurisdiction over all
natural resources on that nation's continental shelf - oil, gas, minerals, etc. This
was the first major challenge to the freedom-of-the-seas doctrine. Other nations
soon followed suit.
In October 1946, Argentina claimed its shelf and the epicontinental sea
above it. Chile and Peru in 1947, and Ecuador in 1950, asserted sovereign rights
over a 200-mile zone, hoping thereby to limit the access of distant-water fishing
fleets and to control the depletion of fish stocks in their adjacent seas.
Soon after the Second World War, Egypt, Ethiopia, Saudi Arabia, Libya,
Venezuela and some Eastern European countries laid claim to a 12-mile
territorial sea, thus clearly departing from the traditional three-mile limit.
The oceans were generating a multitude of claims, counterclaims and
sovereignty disputes.

The codification of laws had begun under the auspices of the League of
Nations. Ultimately the League convened the Hague Codification Conference in
 1930. In strengthening the old doctrine in 1956, the United Nations held First
Conference on the Law of the Sea (UNCLOS I) at Geneva, Switzerland.

 UNCLOS I resulted in four treaties concluded in 1958:

 Convention on the Territorial Sea and Contiguous Zone,
Came into force on 10 September 1964

 Convention on the Continental Shelf,

Came into force on 10 June 1964

 Convention on the High Seas,

Came into force on 30 September 1962

 Convention on Fishing and Conservation of Living Resources of the High

Seas,
Came into force on 20 March 1966

Although UNCLOS I was considered a success, it left open the important issue of
breadth of territorial waters.

Third United Nations Conference on the Law of the Sea

On 1 November 1967, Malta's Ambassador to the United Nations, Arvid Pardo,
asked the nations of the world to look around them and open their eyes to a looming
conflict that could devastate the oceans, the lifeline of man's very survival. In a speech
to the United Nations General Assembly, he spoke of the super-Power rivalry that was
spreading to the oceans, of the pollution that was poisoning the seas, of the conflicting
legal claims and their implications for a stable order and of the rich potential that lay
on the seabed.
Pardo ended with a call for "an effective international regime over the seabed
and the ocean floor beyond a clearly defined national jurisdiction". "It is the only
alternative by which we can hope to avoid the escalating tension that will be inevitable
if the present situation is allowed to continue", he said.

Pardo's urging came at a time when many recognized the need for updating the
freedom-of-the-seas doctrine to take into account the technological changes that had
altered man's relationship to the oceans. It set in motion a process that spanned 15
years and saw the creation of the United Nations Seabed Committee, the signing of a
treaty banning nuclear weapons on the seabed, the adoption of the declaration by the
General Assembly that all resources of the seabed beyond the limits of national
jurisdiction are the common heritage of mankind and the convening of the Stockholm
Conference on the Human Environment (1972). What started as an exercise to regulate
the seabed turned into a global diplomatic effort to regulate and write rules for all
ocean areas, all uses of the seas and all of its resources. These were some of the factors
that led to the convening of the Third United Nations Conference on the Law of the Sea,
to write a comprehensive treaty for the oceans.
The Third UNLOS Conference was convened in New York in 1973. It ended nine
years later with the adoption in 1982 of a constitution for the seas - the United Nations
Convention on the Law of the Sea, 1982. During those nine years, shuttling back and
forth between New York and Geneva, representatives of more than 160 sovereign
States sat down and discussed the issues, bargained and traded national rights and
obligations in the course of the marathon negotiations that produced the Convention.
The Convention consists of 320 Articles spread over 17 parts and nine annexes.

2. Continental Shelf
Source: https://in.pinterest.com/pin/93309023501978582/

Source: https://www.earthlymission.com/world-ocean-floor-map/

2.1 Territorial Sea:

Article 5: Normal baseline - Except where otherwise provided in this Convention,
the normal baseline for measuring the breadth of the territorial sea is the low-
water line along the coast as marked on large-scale charts officially recognized by
the coastal State.

Article 3: 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 in accordance with this Convention.

Source: https://sites.tufts.edu/lawofthesea/chapter-two/

Article 4: Outer limit of the territorial sea- The outer limit of the territorial sea is
the line every point of which is at a distance from the nearest point of the baseline
equal to the breadth of the territorial sea.

Article 8: Internal waters - Waters on the landward side of the baseline of the
territorial sea form part of the internal waters of the State.

Article 15: Delimitation of the territorial sea between States with opposite or
adjacent coasts - Where the coasts of two States are opposite or adjacent to each
other, neither of the two States is entitled, failing agreement between them to the
contrary, to extend its territorial sea beyond the median line every point of which is
equidistant from the nearest points on the baselines from which the breadth of the
territorial seas of each of the two States is measured. The above provision does not
apply, however, where it is necessary by reason of historic title or other special
circumstances to delimit the territorial seas of the two States in a way which is at
variance therewith.

Article 17: Right of innocent passage- Subject to this Convention, ships of all
States, whether coastal or land-locked; enjoy the right of innocent passage through
the territorial sea.

Article 24: Duties of the coastal State

 1. The coastal State shall not hamper the innocent passage of foreign ships through
the territorial sea except in accordance with this Convention. In particular, in the
application of this Convention or of any laws or regulations adopted in conformity
with this Convention, the coastal State shall not: (a) impose requirements on
foreign ships which have the practical effect of denying or impairing the right of
innocent passage; or (b) discriminate in form or in fact against the ships of any
State or against ships carrying cargoes to, from or on behalf of any State.
2. The coastal State shall give appropriate publicity to any danger to navigation, of
which it has knowledge, within its territorial sea.

2.2 Contagious Zone:

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

Source: https://sites.tufts.edu/lawofthesea/chapter-two/

2.3 Exclusive Economic Zone:

Article 57: 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.

Rights and Duties of Coastal State in EEZ:

Under the Convention, the coastal State has, in the exclusive economic zone,
sovereign rights-

 for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the waters superjacent to the
sea-bed and of the sea-bed and its subsoil, and
 with regard to other activities for the economic exploitation and exploration of
the zone, such as the production of energy from the water, current and winds.  
 The coastal State also has the jurisdiction with regard to: the establishment and
use of artificial islands, installations and structures; marine scientific research;
and the protection and preservation of the marine environment.  
 In exercising its rights and performing its duties under the Convention in the
exclusive economic zone, the coastal State should have due regard to the rights
and duties of other States and should act in a manner compatible with the
provisions of the Convention.

Rights and Duties of Other States in EEZ:

All States, whether coastal or land-locked States, subject to the relevant

provisions of the Convention,

 Enjoy the high seas freedom of navigation, over-flight and of laying of

submarine cables and pipelines in the exclusive economic zone.  
 In exercising their rights and performing their duties under the Convention in
the exclusive economic zone, States should have due regard to the rights and
duties of the coastal State and should comply with the laws and regulations
adopted by the coastal State in accordance with the provisions of the
Convention and other compatible rules of International Law.

In Case of Conflict in EEZ:

The Conventions provides that in cases of conflict over rights or jurisdiction of

the coastal State or of other States within the exclusive economic zone, the conflict
should be resolved on the basis of equity and in the light of all the relevant
circumstances.  

As regarding the delimitation of the exclusive economic zone between States

with opposite or adjacent coasts, the Convention provides that it should be effected by
agreement on the basis of International Law; if no agreement can be reached within a
reasonable period of time, the States concerned should resort to the procedures of
settlement of disputes provided for in the Convention.

2.4 Continental Shelf (maximum extent)

According to Article 76: Definition of the continental shelf-

The continental shelf of a coastal State comprises the seabed and subsoil of the
submarine areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin, or to a
distance of 200 nautical miles from the baselines from which the breadth of the
territorial sea is measured where the outer edge of the continental margin does not
extend up to that distance.
The outer limit of the continental shelf shall not exceed 350 nautical miles from
the baselines from which the breadth of the territorial sea is measured.

Source: https://sites.tufts.edu/lawofthesea/chapter-two/

Article 77: Rights of the coastal State over the continental shelf-

1. The coastal State exercises over the continental shelf sovereign rights for the
purpose of exploring it and exploiting its natural resources.

2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal
State does not explore the continental shelf or exploit its natural resources, no one may
undertake these activities without the express consent of the coastal State.

3. The rights of the coastal State over the continental shelf do not depend on
occupation, effective or notional, or on any express proclamation.

4. The natural resources referred to in this Part consist of the mineral and other non-
living resources of the seabed and subsoil together with living organisms belonging to
sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile
on or under the seabed or are unable to move except in constant physical contact with the
seabed or the subsoil.
 3. International Seabed Authority
The International Seabed Authority (ISA) is an autonomous international
organization established under the 1982 United Nations Convention on the Law of
the Sea (UNCLOS) and the 1994 Agreement relating to the Implementation of Part XI
of the United Nations Convention on the Law of the Sea (1994 Agreement). 

ISA is the organization through which States Parties to UNCLOS organize and
control all mineral-resources-related activities in the Area for the benefit of mankind
as a whole. In so doing, ISA has the mandate to ensure the effective protection of the
marine environment from harmful effects that may arise from deep-seabed related
activities.

ISA which has its headquarters in Kingston, Jamaica, came into existence on 16
November 1994, upon the entry into force of UNCLOS.  ISA became fully operational as
an autonomous international organization in June 1996, when it took over the
premises and facilities in Kingston, Jamaica previously used by the United Nations
Kingston Office for the Law of the Sea. 

In accordance with article 156 (2) of UNCLOS, all States Parties to UNCLOS
are ipso facto members of ISA. As of 1 May 2020, ISA has 168 members, including 167
member States and the European Union. 

The Area and its resources are the common heritage of mankind. The
Area covers around 54 per cent of the total area of the world’s oceans.

BIBLIOGRAPHY:

1. https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/12-the-law-of-the-
sea#_ftn22 visited on 30/06/2020 at 9 pm.
2. https://www.legalbites.in/public-international-law-notes-territorial-sea/ visited on 30/06/2020
at 8:50 pm
3. UNCLOS 1982 (www.un.org)