Law of the Sea

Historical Development

Presented by-
Md. Asraful Islam
Assistant Professor
Department of Law &
Justice
Southeast University
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 Law of the Sea
Historical Background
• Introduction
• Early History
• 1493 to 1958
• UNCLOS I
• UNCLOS II
• UNCLOS III
• Some of the key features of UNCLOS III
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 Introduction

• The most revolutionary area of

international law during the last
six decades.

• Law as custom (Customary

International Law)

• Law as multi-party agreement

• Law as Unilateral Agreements.

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 Early History

• States were primarily concerned about open

sea in medieval times.

• Navigation & fishery was open to all.

• Great maritime discoveries by the European

Navigators during 15th & 16th Century

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 1493-1958
15th & 16th Century

• Big maritime powers claimed sovereignty &

ownership over high sea.

For example:
Portugal : Whole of Indian Ocean, a
very great proportion of
Atlantic ocean
Spain : Pacific & Gulf of Mexico
Great Britain : Narrow Sea & North Sea 5
 1493-1958
1609: Hugo de Groot (Groetius) and
Mare Liberum (The Freedom of the Sea)
The seas are the property of no one, because:
• No nation can control the ocean. No ocean can be
the property of a nation.
• No nation can exhaust the ocean’s resources.
Nature does not give a right to any body to
appropriate (take away) things that may be used by
everybody. The open sea is a res gentium
(international affair) or res extra commercium
(outside of commercial affairs).
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 1493-1958
1635: John Selden and Mare Clausum (Closed Sea)

The seas can be seen as property (exception to

Mare Liberum), because:

• They can be subject to national control

• Their resources can be exhausted.

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 1493-1958
1702: Cornelius van Bynkershoek and
De Domino Maris Dissertatio
(Essay on sovereignty over the sea)

• A nation can realistically control only the sea

near its shore.

• That control comes out of the barrel of a gun; the

Cannon Shot Rule and the 3-mile limit.

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 1493-1958
The Next Development:
1927: The Lotus Case (French v. Turkey)
1930: The Hague conference on international law
• Precursor to UNCLOS
• General agreement on treating coastal
waters as sovereign territory
• No agreement on high seas.
1935: I’m Alone Case (Canada v. USA)
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 1493-1958

1945: The Truman Proclamations

#2667: Natural Resources of the Subsoil

and Sea-Bed of the Continental Shelf.

#2668: Coastal Fisheries in Certain Areas

of the High Seas.

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 1493-1958
#2667: “having concern for the urgency of
conserving and prudently utilizing its natural
resources, the Government of the United States
regards the natural resources of the subsoil and
sea-bed of the continental shelf beneath the
high seas but contiguous to the coasts of the
United States as appertaining to the United
States, subject to its jurisdiction and control“.

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 1493-1958
#2668: “In view of the pressing need for conservation
and protection of fishery resources, the
Government of the United States regards it as
proper to establish conservation zones in those
areas of the high seas contiguous to the coasts of
the United States wherein fishing activities have
been or in the future may be developed and
maintained on a substantial scale. Where such
activities have been or shall hereafter be
developed and maintained by its nationals alone,
the United States regards it as proper to establish
explicitly bounded conservation zones in which
fishing activities shall be subject to the regulation
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and control of the United States."
 1493-1958
1945-1950: Latin America takes on the Truman
Proclamations
Mexico, 1945:
Jurisdiction over continental shelf of mineral &
fishery resources.
Argentina, 1946:
Sovereignty over the continental shelf and the
overlying sea.
Chile, 1947:
As Argentina, but out to 200 miles.
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 1493-1958
1949: Corfu Channel Case, (UK v. Albania)
1951: Anglo Norwegian Fisheries Case,
(UK v. Norway)
1952: The Santiago Declaration
• Chile, Peru, and Ecuador claim 200 mile
sovereignty.
• Right of innocent passage through this 200 mile
zone was explicitly acknowledged.

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 UNCLOS I, 1958
1958: First Conference on the Law of the Sea by
the UN at Geneva. Resulted four Conventions:
• Convention on the Territorial Sea and
Contiguous Zone (Enforced on: 10 September 1964)
• Convention on the Continental Shelf
(Enforced on: 10 June 1964)

• Convention on the High Seas

(Enforced on: 30 September 1962)

• Convention on the Fishing and Conservation

of Living Resources of the High Seas
(Enforced on: 20 March 1966) 15
 UNCLOS I, 1958
Convention on the High Seas

• Freedom of Navigation

• Freedom of Overflight

• Freedom of Fishing

• Freedom to Lay Cables and Pipelines

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 UNCLOS I, 1958
Convention on Territorial Seas and Contiguous
Zones

• Territorial sovereignty over coastal waters

extends beyond low tide line; no agreement on
the limit!

• Contiguous seas at 12 miles from shore

• Some problems here (Latin American claims)

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 UNCLOS I, 1958
Convention on the Continental Shelf

• Coastal nations have sovereignty over the

seabed and its resources, but not over
the water and airspace above the seabed

• Problems with benthic species

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 UNCLOS I, 1958
Convention Fishing and Living Resources of the
High Seas

• Recognized that marine resources were

exhaustible

• Resolution of disputes by “binding arbitration”

was unpalatable

• Undefined extent of “territorial sea” led to

problems
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 UNCLOS II, 1960
1960: The Second Conference on the Law of the
Sea by the UN at Geneva. Goal was
to resolve specific problems left by UNCLOS
I.

• Width of Territorial Seas

• Fisheries Limits

NO AGREEMENT REACHED ON EITHER ISSUE!

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Montevideo, Lima, and Santo Domingo
Declarations (1970-1972)

Latin American Nations Come to a Regional

Consensus on 12-Mile Territorial Seas and
200-Mile “Patrimonial” Seas.

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 UNCLOS III (1973-1982)
Matters Unresolved by UNCLOS I & II

– The precise breadth of TS

– Question of Innocent Passage by warships
(either through international water or territorial
water).
– Right of passage or over flight in case of
archipelago.
– Protection and conservation of species
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 UNCLOS III (1973-1982)
Other Problems
 Land locked states had inadequate access to
the sea.
 Failure of Geneva Conventions to halt
scramble of exploiting sea resources by rich
states.
 As a whole four Geneva Conventions were not
accepted by the countries at a time.
 Exploitability criterion on CS was paradoxically
viewed unsatisfactory.
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 UNCLOS III (1973-1982)
Other Problems
• Newly emerged states feel that without technical
know-how and being financially disadvantaged
they would be powerless. So they would fail to
prevent the monopoly of developed states.
• Recurrence of catastrophic oil spills from giant
oil tankers ( for example: Torrey Canyon)
• Emplacement of nuclear weapons resulting
incalculable consequences for navigation and
fisheries.
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 UNCLOS III (1973-1982)
Some Responses
• In 1967, Ambassador of Malta Mr. Arvid Pardo,
pressed for UN Action to be taken so that sea
resources beyond the national jurisdiction can be
recognized as the common heritage of mankind. He
urged to develop the area for the interests of all
states with special preference of disadvantaged
states.
• Mr. Pardo’s plan was designated to avoid the
unregulated scramble by developed states to
ravage the mineral wealth of ocean floor.
• He was concerned about the militarization of the
deep sea bed. 25
 UNCLOS III (1973-1982)
Some Responses
• In Dec 1968, UNGA adopted a resolution as per Mr.
Pardo’s proposal and formed a 42 member
committee for peaceful uses of sea.
• The latter developments from 1969-1971 was
marked by this committee.
• In Nov. 1969 two conventions were adopted at
Brussels to deal with oil pollution casualties, namely;
– Convention relating to Intervention on High Seas in cases
of Oil Pollution Casualties i.e. Intervention Convention
– International Convention on Civil Liability for Oil Pollution
damage i.e. Liability Convention. 26
 UNCLOS III (1973-1982)
Some Responses
• In 1971, emplacement of nuclear and mass
destructive weapons on seabed, ocean floor and
subsoil were prohibited by Seabed Arms Control
Treaty. This was the first major step in preventing
militarization of the sea bed and ocean floor.
• In 1970, President Richard Nixon issued a statement
regarding US policy on the Ocean. This was
compatible with the approach favoured by UNGA.
• UNGA did two things after that: it declared some
principles relating to sea; it convene a Third United
Nations Conference on Law of the Sea
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 UNCLOS III (1973-1982)
The UNCLOS III on the Table
• It took twelve sessions to adopt UNCLOS, 1982
from 1973-1982 . The first session was held in New
York and Final Session in Montego Bay, Jamaica.

• The main policy accorded in the sessions can best

be described from the declaration taken at Caracas
in 1974:
‘To reach agreement on substantive matters by way of
consensus and there should be no voting on such
matters until all efforts at have been exhausted.’
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 UNCLOS III (1973-1982)
The UNCLOS III on the Table

• On 10 December 1982, the United Nation

Convention on Law of the Sea (UNCLOS) was
finally adopted and opened for signature.

• 118 Country signed the treaty on the very

first day even with a ratification by Fiji.
However, USA did not sign the treaty.

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 UNCLOS III (1973-1982)
• 585 Days over a 9-year period
• Largest Multilateral Treaty-Making Conference
• Treaty Available for Signing in 1982
• Treaty Came in to Force on November 16, 1994;
one year after the ratification of the 60 th State,
Guyana.
• U.S. Voted Against the Treaty
• Many Nations have not Signed the Treaty
• Bangladesh ratified on 27 July 2001 (136 th)
• Last State of Palestine on 2 January 2015 (16730th)
 Excuse of USA
 The sea bed mining provisions would deter the
exploitation of deep sea bed mineral resources.
 Access to these resources was not assured.

 The countries most affected did not have a

proportionate voice in decision making on sea
bed policies.
 Amendment provision is against America’s
treaty obligations.
 The provisions for mandatory transfer of seabed
technology and production limitation was also
not acceptable.
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32
 Some of the key features of UNCLOS III
• Coastal States exercise sovereignty over their territorial
sea up to a limit not exceeding 12 nm. Foreign vessels
are allowed "innocent passage" through those waters.
• Ships and aircraft of all countries are allowed "transit
passage" through straits used for international
navigation. States bordering the straits can regulate
navigational and other aspects of passage.
• Archipelagic States have sovereignty over a sea area
enclosed by straight lines drawn between the outermost
points of the islands; the waters between the islands are
declared archipelagic waters where States may
establish sea lanes and air routes in which all other
States enjoy the right of archipelagic passage through
such designated sea lanes.
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 Some of the key features of UNCLOS III
• Coastal States have sovereign rights in a 200-
nautical mile exclusive economic zone (EEZ) with
respect to natural resources and certain economic
activities, and exercise jurisdiction over marine
scientific research and environmental protection. All
other States have freedom of navigation and over
flight in the EEZ, as well as freedom to lay
submarine cables and pipelines.
• Land-locked and geographically disadvantaged
States have the right to participate on an equitable
basis in exploitation of an appropriate part of the
surplus of the living resources of the EEZ's of
coastal States of the same region or sub-region;
highly migratory species of fish and marine
mammals are accorded special protection.
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 Some of the key features of UNCLOS III

• Coastal States have sovereign rights over the

continental shelf for exploring and exploiting it; the
shelf can extend at least 200 nautical miles from
the shore, and more under specified
circumstances.
• Coastal States share with the international
community part of the revenue derived from
exploiting resources from any part of their shelf
beyond 200 miles. It is a reflection of international
equity.
• All States enjoy the traditional freedoms of
navigation, over flight, scientific research and
fishing on the high seas.
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 Some of the key features of UNCLOS III
• States bordering enclosed or semi-enclosed seas
are expected to cooperate in managing living
resources, environmental and research policies and
activities.

• States are bound to prevent and control marine

pollution and are liable for damage caused by
violation of their international obligations.

• All marine scientific research in the EEZ and on the

continental shelf is subject to the consent of the
coastal State, but in most cases they are obliged to
grant consent to other States when the research is
to be conducted for peaceful purposes and fulfils
specified criteria. 36
 Some of the key features of UNCLOS III
• States are bound to promote the development and
transfer of marine technology "on fair and reasonable
terms and conditions", with proper regard for all
legitimate interests.

• States Parties are obliged to settle by peaceful means

their disputes concerning the interpretation or
application of the Convention. Disputes can be
submitted to the International Tribunal for the Law of
the Sea established under the Convention, to the
International Court of Justice, or to arbitration.
Conciliation is also available and, in certain
circumstances, submission to it would be compulsory.
The Tribunal has exclusive jurisdiction over deep
seabed mining disputes. 37
That’s all for Today

Thank you

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