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Development Of The Law Of The Sea

Law of the Sea is that branch of International Law which deals with the subject of maintaining public order at Sea. The Law of the Sea consists of rules providing for the use of the Sea, which also includes its resources and environment. This law defines the rights and duties of the Nations towards the World’s ocean and its use, establishes guidelines for the businesses, management of the natural resources of marine. It also defines the geographical jurisdictions of the States with coastlines and the rights and responsibilities of the concerned states towards each other when it comes to the conservation and use of the ocean and its natural resources.

Law of the Sea Convention (UNCLOS)

The United Nations Convention on the Law of the Sea (UNCLOS), which came into force in the Year 1994, is the result of the third conference of United Nations Convention on the Law of the Sea.[i] With the introduction of the UNCLOS, the four Geneva Conventions of 1958 were replaced.[ii]

Historical Development of the Law of the Sea

Formulation of the Law of the sea was led by the father of the Modern International Law, Hugo Grotius Dutch jurist and scholar (1583-1645).

The principle of freedom of the seas was followed for a long time which limited the rights of the Nations and their jurisdiction only over the narrow belt of which surrounds the coastline of a Nation. It stressed on the freedom to navigate the oceans and the law, endorsing the doctrine of the open sea, wherein no regulation was there and the remainder of the sea belonged to be free for all to explore, but belonging to none.[iii]

By the mid- twentieth century, claims and demands to extend the jurisdiction of the Nations over the ocean started rising for various reasons like toll taken on coastal fishes and pollution threats and wastages from transport ships, various claims, increasing pollution, growing demands and tensions between the rights to use resources between coastal nations, etc. posed a threat of conflict and instability for the oceans.

First extension of jurisdiction of a nation’s continental shelf was that of United Nations in the Year 1945, by President Harry S Truman after responding to the pressure for domestic oil interests. It was the first deviation from the doctrine of freedom of the seas. Thereafter, various other nations like Argentina in 1946, Chile and Peru in 1947, Ecuador in 1950, Egypt, Ethiopia, Saudi Arabia, Venezuela, Libya and various other Eastern European countries laid the claim towards territorial sea.

Exploitation of ocean resources

With this began the exploitation of the ocean resources which was never seen before with activities like pollution, mining and depletion of fish stocks. In the year 1967, there were even threats on the man’s last preserve, i.e., sea beds. Claims, counterclaims and disputes pertaining to the sovereignty started taking place, which asked for a stable order and better use and management of ocean resources.

The First United Nations Conference on the Law of the Sea (UNCLOS I)

The first session in the year 1949 on the Law of the Sea was convened by the U.N. which was appointed by Mr. Francois. It was convened to examine the law of the sea and to take account of legal, technical, economic, political and biological aspects of the problem and to provide for the results of its work in some conventions or instruments. They selected the regimes of both territorial waters and of High seas which they considered in various sessions held till the Year 1956.

On the basis of the discussion of the report[iv] of the International Law Commission in its eighth session, i.e., International conference of plenipotentiaries to examine the law of the sea, resolution 1105 (XI) was adopted by the General Assembly on 21st February, 1957.

It resulted into the adoption of four conventions on 29th April, 1958:

  1. The Convention on the Territorial Sea and Contiguous Zone (10th September 1964);
  2. the Convention on the High Seas (30th September 1962);
  3. the Convention on Fishing and Conservation of the Living Resources of the High Seas (20th March 1966), and
  4. the Convention on the Continental Shelf (10th June 1964).
In addition to this, an Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes was adopted, which entered into force on 30 September 1962.

The Second United Nations Conference on the Law of the Sea (UNCLOS II)

The second U.N. conference on the Law of the Sea was convened from 17th March to 26th April 1960 to consider those topics which had not been agreed upon in the First Conference of 1958. The topics were of breadth of the territorial sea and fishery limits. The conference, although adopted two resolutions in its Final Act[v], but it failed to decide the substantive rights on the breadth of the territorial sea and fishery rights and postponed them for future.

The Third United Nations Conference on the Law of the Sea (UNCLOS III)

The General Assembly for the purpose of studying the peaceful uses of the sea-bed and the ocean floor beyond the jurisdiction of National limits, established an Ad-hoc Committee by resolution (XXII)[vi] of 18th December, 1967.

On the basis of the report of Ad-hoc committee which they prepared after three sessions in the year 1968, the General Assembly adopted resolution 2467 A (XXII)[vii] on 21st December, 1968, on the basis of which, a committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction was established on 17th December, 1970.
By resolution 2750 C (XXV)[viii], the General Assembly decided to convene a third conference on the law of the sea in the year 1973.

The General Assembly got the various sessions of the Third Conference on the Law of the Seas from the year 1973 to deal with the substantive work by resolution 3029 (XXVII)[ix]. Final report was submitted by the Committee to the General Assembly at its twenty-eighth session in the year 1973 on the basis of which a conference was held with the mandate of the adoption of a convention dealing with all the matters relating to the Law of the Sea by resolution 3067 (XXVII)[x]

Three main committees were set up namely, General Committee, Drafting Committee and a Credentials Committee and the conference determined the competence of the committees in accordance with the resolution 2750 C (XXV). Topics were allotted to the committees and the committees were relevant to their mandates for the topics and were supposed to deal with regional arrangements, responsibility and liability for resulting damage from various activities concerning the ocean. The work kept on going and the conference decided to complete the work of Convention by the Year 1980.

Adoption of United Nations Convention on the Law of the Sea

The conference at 182nd plenary meeting on 30th April, 1982 after taking vote at the request of delegation of the USA, on 10th December, 1982 adopted the United Nations Convention on the Law of the Sea[xi], which contained 320 articles and nine annexes. It came into force on 16th November, 1994, i.e., after a period of 12 months from the date of deposit with the Secretary General of the United Nations of the Sixtieth instrument of ratification or accession in accordance with Article 308 (1).

The agenda item entitled The Law of the Sea was also considered by the General Assembly during the period of 1993-1994 and adoption of the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982[xii] took place by the resolution 48/263 of July 1994

United Nations Convention on the Law of the Sea of 1982[xiii]

The United Nations Convention on the Law of the Sea of 1882, which came into force on 16th November 1994, could be elaborated as follows:
  1. The Convention consists of total 320 Articles, 17 parts and nine annexes along with the four resolutions.
  2. The convention, although replaced the four Geneva Conventions of the year 1958 adopted at the First United Nations Convention on the Law of the Sea, but comprised all the grounds covered under those conventions.
  3. It also includes all the new legal regimes of the deep sea bed and exclusive economic zone.
  4. It provides the territorial sea limit of 12 nautical miles.
  5. It provides a proper mechanism when it comes to the settlement of the disputes in relation to the ocean resources and the extent of jurisdiction and also resulted in establishing an International Tribunal for the Law of the Sea.
This convention of the year 1982 is considered to be the Constitution for the oceans. When it came into effect in the Year 1994, it was ratified by 60 countries. At present, a total of 168 countries and European Union are parties to it. The detailed list of all the countries who have ratified and signed the Convention, agreement providing the implementation of Part XI of the Convention as well as the agreement relating to the implementation of the provisions of conversation and management of straddling and highly migratory fish stocks is given available on the website of U.N. Division for Ocean Affairs and the Law of the Sea.[xiv]

With this Convention, three new International institutions have been created: [xv]

  1. the International Tribunal for the Law of the Sea;
  2. the International Seabed Authority; and
  3. the Commission on the Limits of the Continental Shelf.

Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982[xvi]

The agreement implementing Part XI of the United Nations Convention on the Law of the Sea of 10th December 1982 entered into force on 28th July 1996.

The Agreement contains an annex which is divided into nine sections which deals with the various issues that were identified as problem areas during the informal consultations. These include costs to State Parties and institutional arrangements; decision-making mechanisms for the Authority; and future amendments of the Convention.

The United Nations Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks[xvii]

It sets out the principles for the conservation and the management of those fish stocks and asks for such management to be based on precautionary approach and the best available scientific approach. It elaborates the basic principles which are to be observed by the states in order to conserve and promote the objective of optimum utilization of the fisheries resources.

Major Maritime zones, rights and duties under the specific zones[xviii]

Territorial seas

The part of the sea next to the coastline which is bounded by the high seas. Article 2 of the Geneva Convention on the Territorial Sea and Article 3 of UNCLOS provides for the sovereignty of the states over this zone.

Width of the territorial sea

It defines the width of the territorial sea up to which sovereignty of the states could be exercised. Article 3 of the UNCLOS Convention of 1982 provides for the limit of 12 nautical miles to establish the breadth of the territorial sea from the baseline.

Right to Innocent Passage

Article 19 of the convention provides for innocent passage to the merchant ships keeping in mind the list of activities which are considered innocent. Article 24 also prohibits coastal states from hampering the innocent passage of such foreign ships.

Contiguous zone

That part of the sea which is located beyond and adjacent to the territorial waters of the coastal states which extends up to 12 nautical miles.

Exclusive Economic Zone (EEZ)

The Zone considered for the use of marine resources for economic purposes. The court in the case of Tunisia v. Libya, 1981 I.C.J. 3 (Apr. 14)[xix] regarded the concept of Exclusive Economic Zone whose object arose due to the lack of fishing zones. Article 55 of the UNCLOS permits the extension of this region up to the limit of 200 nautical miles from the baseline.

Various provisions of the Convention provides the following features [xx]

  1. Coastal States are given right to exercise sovereignty over the sea coming within their territory. For that, they have right to establish its breadth up to 12 nautical miles and the States are required to give innocent passage to the foreign ships when they pass through such marine area.
  2. Transit passage is allowed to the ships and aircrafts through straits used for international navigation.
  3. Archipelagic States who are made up of group of closely related islands and interconnected waters also have sovereignty over a sea area enclosed by straight lines drawn between the outermost points of the islands.
  4. Coastal States have right to the exclusive economic zone (EEZ) when it comes to have access to natural resources and carrying out of economic activities, use of marine resources, exercising jurisdiction over marine science research and environmental protection up to 200 nautical miles.
  5. Along with this, all the other states too have freedom of navigation and over flight in those exclusive economic zones. They also have the freedom to lay submarine cables and pipelines.
  6. Land locked states with no coastal areas also have right to participate on an equitable basis in use of an appropriate part of the surplus of the living resources of the exclusive economic zones of the same region or sub region so that they will not be at disadvantage.
  7. Special protection is accorded to the highly migratory species of fish and marine mammals
  8. Coastal States have sovereign rights up to 200 nautical miles over the continental shelf for exploring and exploiting it.
  9. Coastal States are entitled to the part of revenue derived from exploiting resources by the International community from any part of their shelf beyond 200 miles.
  10. If the shelf’s outer boundaries of the States extend beyond 200 miles, the Commission on the Limits of the Continental Shelf shall make recommendations.
  11. Traditional freedom of navigation, scientific research, over flight and fishing on the high seas is enjoyed by all states.
  12. The limits of the exclusive economic zone, territorial sea and continental shelf of islands are determined in accordance with rules applicable to land territory.
  13. States with borders having enclosed or semi-enclosed seas are expected to cooperate in managing environment, living resources and research policies and activities.
  14. Land-locked States with no coastal areas have the right of access to and from the sea and enjoy freedom of transit through the territory of transit States.
  15. It is the responsibility of the states to prevent and control marine pollution and they are liable for damage or violation.
  16. All the activities of marine scientific research in the EEZ and on the continental shelf will be carried out after having consent of the coastal state, for which most of the time, states are bound to give consent.
  17. It is the responsibility of the states to promote the development and transfer of marine technology on fair and reasonable terms and conditions with proper regard for all the genuine interests.
  18. It is an obligation on the state parties to settle their disputes concerning the interpretation or application of the Convention in a peaceful manner.
  19. States have option to submit disputes to the International Tribunal for the Law of the Sea established under the Convention, to the International Court of Justice, or to arbitration. Conciliation.
     
Conclusion
This is how the development of the Law of the Sea took place where it all began with no limits or restrictions on the use of sea and marine resources to the development of the society, nations and the technology where disputes and exploitation of the sea and marine resources started taking place necessitating introduction of strong law for this subject.

This law of the sea is a result of development that took place in this subject with the changing circumstances and the historical development is evidence of great efforts, various conferences, resolutions and decisions made to reach at this point where we have a strong law covering almost all the aspects of protecting and defining the limits of the seas with establishing strong machinery for dealing with the disputes and smooth functioning of this law.

End Notes:
  1. https://www.imoa.ph/treaties/unclos/unclos-history/
  2. https://www.imoa.ph/treaties/unclos/unclos-history/
  3. https://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm
  4. https://legal.un.org/ilc/documentation/english/reports/a_cn4_104.pdf
  5. https://legal.un.org/diplomaticconferences/1960_los/docs/english/vol_1/a_conf19_l15.pdf
  6. https://legal.un.org/diplomaticconferences/1973_los/docs/english/res/a_res_2340_xxii.pdf
  7. https://legal.un.org/diplomaticconferences/1973_los/docs/english/res/a_res_2467_xxiii.pdf
  8. https://legal.un.org/diplomaticconferences/1973_los/docs/english/res/a_res_2750_xxv.pdf
  9. https://legal.un.org/diplomaticconferences/1973_los/docs/english/res/a_res_3029_xxvii.pdf
  10. https://legal.un.org/diplomaticconferences/1973_los/docs/english/res/a_res_3067_xxviii.pdf
  11. https://treaties.un.org/doc/Publication/UNTS/Volume%201833/volume-1833-A-31363-English.pdf
  12. https://treaties.un.org/doc/Publication/UNTS/Volume%201836/volume-1836-I-31364-English.pdf
  13. https://treaties.un.org/doc/Publication/UNTS/Volume%201833/volume-1833-A-31363-English.pdf
  14. https://www.un.org/depts/los/reference_files/UNCLOS%20Status%20table_ENG.pdf
  15. https://www.iucn.org/theme/marine-and-polar/our-work/international-ocean-governance/unclos
  16. https://www.un.org/depts/los/convention_agreements/convention_overview_part_xi.htm
  17. https://www.un.org/depts/los/convention_agreements/convention_overview_fish_stocks.htm
  18. https://blog.ipleaders.in/law-sea/
  19. http://www.worldcourts.com/icj/eng/decisions/1981.04.14_continental_shelf.htm
  20. https://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm

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