#2407 - The Law Of The Sea Notes - Public International Law

The law of the Sea

14. What contribution can be made by International Law to the protection of the

global environment

• Subject of the first successful attempt of the ILC to place a large segment of IL on a multilateral treaty basis.

  • 4 conventions were produced from the 2 Geneva Conferences on the Law of the Sea of 1958 and 1960

    • Geneva conventions on

      • The territorial Sea and Contiguous zone

        • 52 parties

      • On the high seas

        • 63 parties

      • On the continental shelf

        • 58 parties

      • Fishing and conservation of the living resources of the high sea

        • 38 parties

    • The UK is a party to all

    • There is also an optional protocol on the settlement of disputes

      • 38 parties including the UK

• The high seas convention is said to be “generally declaratory of established principles of IL” (preamble)

• No such claim is made for the other conventions

  • Mixture of codification and “progressive development”

    • Art 15 of high seas convention is clearly “progressive development” – article on piracy

    • Often difficult to know which group an article falls into

    • North Sea Continental Shelf Cases have shown that it must not be too readily assumed that a treaty provision even in a “law making” treaty states a rule of CIL.

• Although the Geneva conventions were a considerable achievement, they were not perfect

  • They did not contain a rule of the basic question of the width of the territorial sea

  • They did not contain a rule on the fishing rights, if any, of coastal states beyond their territorial sea

  • They have also been overtaken by scientific and political developments

    • Development of new techniques for underwater exploitation of oil resources has made it necessary to reconsider the regime of the continental shelf and to establish a regime for the deep sea bed.

    • Concern for conservation of fishing resources and pollution has grown

      • This has led to a general approval of an approach based upon control by the coastal state over wide areas of the sea adjacent to its coastline

    • Most post-colonial states had had no say in the drafting of the Geneva Conventions of 1958

    • State practice on the width of territorial waters had changed

    • Archipelagos and landlocked states had been pressing for better treatment

  • This all led to the decision to call a 3^rd UN Conference on the Law of the Sea (UNCLOS III)

The 1982 Convention on the Law of the Sea

Underlying theme of the convention is that it should “contribute to the realisation of a just and equitable international economic order which takes in account the interests and needs of mankind as a whole, and the special interests and needs of developing countries, whether coastal or landlocked” PREAMBLE.

• Remarkable instrument

• Covers in its 320 articles all of the grounds of the 4 conventions above and quite a lot more

  • Establishes

    • a exclusive economic zone

    • acceptance of 12 mile territorial sea

    • provision for transit passage though international straits

    • increased rights for archipelagic and landlocked states

    • stricter control of marine pollution

    • acceptance of a 200 exclusive economic zone

    • changes in the continental shelf regime

    • provision for the development of deep sea bed mineral resources

• It contains machinery for the settlement of disputes arising under it including a tribunal for the law of the sea with its seat at Hamburg.

• Convention is distinctive in that none of its particular provisions were voted upon

  • The complete text was seen as an intricate and delicately balanced bargain between the different interests of the participating states

    • Interest in having an agreed regime for the law of the sea

  • The idea was that the whole regime would be accepted by this process of consensus

    • Merits of the consensus approach – Plant, 1987, 36 ICLQ 525

  • Thought was that the general acceptance of the complete package would increase its chances of ratification and strengthen its claim to be regarded as instant CIL

    • At the “eleventh hour” the newly elected US govt asked for time to review the draft text

    • When it was unable to obtain all the changes it wanted (entirely in the respect of the deep sea bed regime), it requested a vote

      • Convention was adopted by majority vote, in accordance with traditional conference practice

        • The vote was 130 to 4 – the 4 being US, Israel, Turkey and Venezuela

        • US, FRG and UK decided not to become signatories to the convention

    • In order to achieve more general acceptance, steps were taken culminating in the New York implementing agreement

      • This amends Part XI to the satisfaction of developed states and has secured the future of the convention as generally accepted law of the sea.

        • The 1982 convention eventually entered into force in 1994 and 160 states are now parties including the UK)

    • It seems, even allowing for the North Sea Continental Shelf cases, that state practice will confirm or come to accept many of the particular convention rules as being binding as custom

      • E.g. us-ussr statement on innocent passage

    • Caution is in order since the consensus favouring inclusion of a particular rule as part of an overall package may have masked opposition to the rule taken by itself.

      • Evidence that this is how the ILC see the document

        • Remarks of UNCLOS III president at the closing ceremony

          • “although the convention consists of a series of compromises they form an integral whole. This is why the Convention does not provide for reservations”

          • “rights and duties go hand in hand”

      • However, the ICJ does not seem to have followed this “integral whole” approach to understanding the convention.

        • Gulf of Maine case 1984

          • “cannot invalidate the observation that certain provisions were adopted without any objections...these provisions even if in some respects they bear the mark of the compromise surrounding their adoption may nevertheless be regarded as consonant at present with general international law”

• Article 2: sovereignty over territorial water

  • can be no doubt this represents CIL

    • Grisbadarna case (1909) – held when certain land was ceded to Sweden, the territorial waters went with it.

• Article 3: 12 nautical miles of territorial waters

  • This was left out of the 1958 convention due to the absence of agreement

    • At the beginning of the century, state practice seemed to suggest a cannon shot rule

      • State practice now does not support this.

        • In 2008

          • 4 states claimed 3 to 6 miles

          • 137 claimed 12 miles

          • 7 claimed 200 miles

            • 4 Latin American states, 3 African states including Somalia

              • Not clear to what extent the claims are of full sovereignty

          • The validity to claims over 12 miles depends upon the response of other states, as held in Anglo-Fisheries Case

  • Reasons for different territorial limits?

    • US REPRESENTATIVE in Geneva in 1958

      • “one of the merits of the 3 mile limit was that it was safest for shipping...visual piloting, not visible at a range of 12 miles, only 20%of world’s lighthouses could be seen from 12 miles”

    • Sir Gerald Fitzmaurice, dissenting opinion in Fisheries case:

      • “territorial sea involves responsibilities as well as rights which many countries are unable to discharge satisfactorily outside a relatively narrow belt, such as policing and maintaining order”

    • Representative of Byelorussia at 1960 Conference

      • “the main objective of the champions of the 6 mile limit was to obtain for their naval forces unconditional, so-called legitimate, access to foreign waters close to coasts in which they were interested for strategic or political reasons”

Anglo-fisheries case

UK v Norway

• Decree of 1935

• Territorial waters measured from straight baselines linking the outmost points of land (sometimes drying rocks above water only at low tide)

• Preamble of decree said this was so for 3 reasons:

  • Historical – “well-established national titles of right”

    • Decrees prior to this one using straight baselines were met with acquiescence of other states

  • Geographical – “conditions prevailing on the Norwegian coasts”

    • Deeply indented by fjords and sunds and the skjaegaard that is difficult to separate from the mainland

    • As a result of its measuring using straight baselines, Norway enclosed parts of high seas within its “territorial” waters

    • In certain areas, this extended to 44 miles (waldock has a map of this)

  • Economic – “safeguard of the vital interests of the inhabitants of the northern parts of the country”

Judgment of the court

• Experts of the 2^nd sub-committee of the second committee of the 1930 conference for the codification of international law formulated the low water mark rule somewhat strictly (“following all the sinuosities of the coast”)

• But they were also obliged to note exceptions to this rule

“the delimitation of sea areas has always an international aspect: it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal state is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law”

• UK govt made the argument that Norway’s decree was not known to it

  • Only protested in 1933 memorandum

  • Quiet for 60 years

    • Utterly stupid argument – look at the difference in politics!

      • Disraeli was PM in 1869

      • Gladstone in 1889

      • Ramsey Macdonald in 1933

      • Also “knowing” and “protesting” is a lot easier in 1933 than in 1869!

    • This should NOT have been persuasive

• British commentators on this case were v critical of it

  • They felt there was insufficient state practice on the questions in issue

    • Johnson and Waldock

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