Law of the Sea - History, Evolution and Provisions

Introduction

Law of the sea has developed steadily and gradually since the time of Grotius. Earlier the powerful States laid extensive claims of sovereignty over specific portions of the open sea. With the developments in trade and commerce in the 20th century and the realization of the inexhaustible use of the sea, the classic principle of ‘mare liberium’ or ‘freedom of the seas’ has been eclipsed.

The law developed out of well-settled usages culminating in customary law. The hallmark of this law, which was followed up to the half of the twentieth century, was essentially that of non-regulation and laissez-faire and except that of territorial waters, the law essentially endorsed the doctrine of ‘open sea’. But the United States declared proclamation jurisdiction over the continental shelf which gave a new direction to the law of the sea.

Many nations made sweeping claims to protect their economic and military interests. These developments stressed the urgency for the codification of law in order to strive for uniformity and resolve maritime conflicts among nations. The matter was put on the agenda of the International Law Commission in 1949.

On the basis of the drafts prepared by the ILC, in 1958, the First United Nations Conference on the Law of the Sea took place in Geneva.

Geneva Convention on the Law of Sea, 1958

The convention was attended by 82 States, which adopted the following four conventions:

1. Convention on the Territorial Sea and the Contiguous Zone,
2. Convention on the High Sea,
3. Convention on Fishing and Conservation of the Living Resources
4. Convention on the Continental Shelf.

The most important issue which was left undecided was the breadth of the territorial sea. It was so because all the states were not agreeable to one and the same limit of the territorial sea.

Geneva Convention on the Law of Sea, 1960

In order to resolve this specific issue, the Second Conference on the Law of Sea was held in 1960, at Geneva, but it again failed due to different claims of the States. However, it was realized that both these conferences on the Law of the Sea were inadequate and left many matters unsettled.

This made it imperative to reformulate the law of the sea in composite form to make it conducive to the new interests and demands of all concerned and paved the way to hold the Third Law of the Sea Conference.

Third United Nations Conference on the Law of Sea

In 1967 the representative of Malta, Arvid Pardo gave a survey of the mineral resources of the sea-bed before the First Committee of the General Assembly of the United Nations. His survey coupled with the acute and urgent need of the minerals and other factors such as military and strategic aspects necessitated to lay down such laws which may possibly control and regulate the sea in a more effective way.

The move was to secure the mineral wealth of the oceans as well as to avoid the militarization of the deep seabed. This led to the formation of a 42 member Ad hoc Seabed Committee in 190, the General Assembly adopted a declaration of Principles Governing the Seabed and Oceans floor, and the Sub-soil thereof, beyond the limits of National Jurisdiction, which proclaimed that the exploitation of these areas should be carried out for the benefit of the mankind as a whole.

The First session of the Third UN Conference on the law of the sea was held in New York in 1973. At the end of nine years in 12 sessions, the Conference adopted the Law of the Sea Convention in 1982.

Convention on the Law of the Sea, 1982

• The Convention consists of 320 Articles spread over 17 parts and nine annexes. Apart from these, there are four resolutions.
• The Convention comprises the ground covered by the four Geneva Conventions of 1958 and creates some new regimes.
• In fact, many of the provisions repeat verbatim or in essence the provisions of the Geneva Conventions, or give more detailed rules on matters covered by them. It contains provisions on those matters on the new legal regimes of Exclusive Economic Zone and the deep sea-bed.
• It has laid down a 12 nautical miles limit for the territorial sea.
• The Convention contains detailed machinery for the settlement of disputes, including an International Tribunal for the Law of the Sea.
• It also provides for the compulsory judicial settlement of most of the disputes that may arise under the Convention, at the request of one of the parties to the dispute.

In the Case Concerning the Continental Shelf between Libya and Malta, the Court observed that ‘the 1982 Convention is of major importance, having been adopted by an overwhelming majority of States; hence it is clearly 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’ and noted that the provisions on the continental shelf reflect the customary law of the continental shelf.

Thus, the Convention is a major achievement and its ambit is very wide.

Maritime Belt or Territorial Sea

Maritime belt or territorial sea is that part of the sea which is adjacent to the coastal State and which is bounded by the high seas, on its outer edge. The coastal State exercises its sovereignty over this area as it exercises over its internal waters. The sovereignty extends to the airspace over the territorial sea as well as its bed and sub-soil. This sovereignty accrues to a State under the customary international law which no State can refuse.

However, the sovereignty over this area has to be exercised subject to the provisions of the conventions and ‘to other rules of international law’, which provides certain rights to other States, particularly right of ‘innocent passage’ in the territorial waters of the State.

The breadth of the Territorial Sea: Article 3 of the 1982 Sea Convention limits the breadth of the territorial sea to 12 nautical miles ‘measured from baselines determined in accordance with the Convention’. Two methods have been laid down for measuring the breadth of the territorial sea: the low-water line and the straight baseline. Click Here to Read More about Territorial Sea/Waters

India’s Position on Territorial Waters

India’s position in relation to the law of the sea is generally governed by Article 297 of the Constitution of India, and the Territorial Water, Continental Shelf, EEZ and other Maritime Zones Acts. The Maritime Zones Act proclaims the sovereignty of India over the territorial waters of India and the seabed and sub-soil underlying and the airspace over such water. The limit of the territorial is the line every point of which is at a distance of 12 nautical miles from the nearest point of the appropriate baseline. All foreign ships are given the right of innocent passage through the territorial waters.

Contiguous Zone

Contiguous zone is that part of the sea which is beyond and adjacent to the territorial waters of the coastal state. It is not subject to the littoral State, but within this littoral, State can exercise certain rights of jurisdiction and policy. The concept of a contiguous zone developed due to the inability of the States to provide effective protection of all its interests due to the limited breach of the territorial sea. The Convention of 1982 has made the concept of Exclusive Economic Zone (EEZ) which covers the contiguous zone in its entirety thus, there is no need to describe contiguous zone as part of high seas.

Article 33 of the 1982 Convention provides that the contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. Thus, the area of the contiguous zone will be 12 miles beyond the territorial sea.

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.

Indian Position on Contiguous Zone

India has claimed a contiguous zone to the extent of twenty-four nautical miles by enacting the Maritime Zones Act of 1976.

Continental Shelf

According to W. Friedman, the continental shelf may be defined as the zone around the continent extending from the low-water line to the depth, at which there is usually a marked increase of declivity to a greater depth. What is commonly understood by the ‘continental shelf’ is a gently sloping platform of submerged land surrounding the continents and islands.

It is a submerged bed of the sea, contiguous to a continental landmass, and found in such a manner as to be really an extension of, or belonging to this landmass. Normally, it extends to a depth of approximately 200 meters, at which point the first substantial ‘fall off’ of the seabed occurs. At certain places, it continues beyond a depth of 200 meters.

The coastal State enjoys limited sovereign rights over the continental shelf for the purpose of exploring and exploiting its ‘natural resources’, and not sovereignty. These rights are exclusive in the sense that no one can undertake these activities without the express consent of the coastal State or make a claim to the continental shelf.

The delimitation of the continental shelf between nations has generated a lot of litigation because of its economic importance. Rules relating to delimitation are provided in Article 6 of the 1958 Continental Shelf Convention and Article 83 of the 1982 Convention.

Indian Position on Continental Shelf

The Maritime Zones Act, states the Indian position. India has proclaimed 200 nautical miles from the baselines as its continental shelf. The rights and duties of Indians in this regime are similar to other States, as specified in the international Conventions. However, the government can declare the area of the continental shelf and its superjacent waters as designated areas and make provisions for regulating it.

Exclusive Economic Zone

EEZ is comparatively a concept of recent origin. The concept of EEZ was initiated by Kenya in 1972 at the Geneva session of the UN Committee on Peaceful uses of Sea-bed and Ocean Floor Beyond the Limits of National Jurisdiction. The EEZ finally found a place in the Convention on the Law of the Sea of 1982.

The EEZ is an area beyond and adjacent to the territorial sea extending up to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. The zone is an intermediate area between the high seas and the territorial sea with a distinct regime of its own which a State can specifically claim.

Indian Position on EEZ

The Maritime Zones Act of 1976 under section 7 provides an exclusive right for the purpose of exploring and exploiting the natural resources within EEZ.

High Seas

The high seas denote all parts of the sea that are not included in the EEZ, territorial se or internal waters of a State. The rule was formulated in 1609 by Grotius in his treatise mare liberium by arguing that the sea cannot be owned. Hence, all states whether coastal or landlocked shall be free to exercise therein the freedom of navigation, of overflight, of immersion, of fishing and of constructing artificial islands etc.

However, the regime has been considerably changed under the Convention on the Law of the Sea of 1982. Article 87(2) of the Convention lays down the limitation of the general nature on the freedom of high seas by stating that the freedom of the high seas “shall be exercised with due regard for the interests of other States in their exercise of the freedom of high seas.”

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References

1. Dr. H.O. Agarwal, International Law, 21st Edition, 2016
2. http://nbaindia.org
3. http://www.un.org

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1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
2. Legal Bites Academy – Ultimate Test Prep Destination