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Today's Customary International Law

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DOI: 10.1080/00908320.2014.929460

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 Ocean Development & International Law, 45:239–259, 2014
Copyright © Taylor & Francis Group, LLC
ISSN: 0090-8320 print / 1521-0642 online
DOI: 10.1080/00908320.2014.929460

Today’s Customary International Law of the Sea

J. ASHLEY ROACH
Independent Researcher
Arlington, Virginia, USA

International courts and tribunals, governments, and scholars over the past half-century
(many in the past two decades) have identified various provisions of the 1958 and 1982
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treaties on the law of the sea that are customary international law and thus binding on
all states, including those not party to these treaties. This article systematically collects
these opinions and identifies provisions that have not yet attracted their attention.

Keywords customary international law, law of the sea, 1958 Geneva Conventions on
the Law of the Sea, UN Convention on the Law of the Sea

Introduction
It has been more than 55 years since the four 1958 Geneva Conventions on the Law of
the Sea were adopted1 but they have not been nearly as widely accepted as the 1982 UN
Convention on the Law of the Sea (LOS Convention),2 which at the time of this writing
has 166 parties.3 Yet a number of states with major maritime interests are not party to one
or more of these treaties.4
Over the past several decades, a number of international instruments have made a
generalized reference to the “customary law of the sea as reflected in” the LOS Convention.5
This situation raises the question of which provisions in these treaties are now considered
to be customary international law binding on all states. A second question is which rules
of customary international law not in law of the sea treaties are applicable in a law of the
sea context. Evidence of the answers to the first question is found in the decisions of the
International Court of Justice and other tribunals, and to the second question in decisions
and separate opinions of the International Tribunal for the Law of the Sea (ITLOS) and
arbitrations.6 Table 1 provides in chronological order a list of the cases identified in which
the International Court and other tribunals have addressed the customary international law
status of various provisions of the codified law of the sea. Table 2 provides a list of the
cases that have identified rules of customary international law not in law of the sea treaties,
which are applicable in a law of the sea context.

Received 18 February 2014; accepted 2 March 2014.

The views expressed in this article are those of the author alone and are not intended to reflect
the positions of any department or agency of the U.S. government. The author expresses his thanks
to Professor John Noyes, Sir Michael Wood, and Professor Sean Murphy for their corrections and
useful comments on drafts of this article. All errors remain the responsibility of the author.
Address correspondence to J. Ashley Roach, Captain, JAGC, USN (retired); Office of the Legal
Adviser, U.S. Department of State (retired). E-mail: jashleyr@yahoo.com

239
 240 J. A. Roach

Table 1
A list in chronological order of the cases in which international courts have addressed the
customary international law status of various provisions of the codified law of the sea

• Corfu Channel Case (United Kingdom v. Albania), 1949 ICJ Rep. 4, 28 (9 April) (straits
used for international navigation)
• Anglo-Norwegian Fisheries Case, 1951 ICJ Rep. 116, 128–143 (18 December) (Articles
7(1), 7(3), 7(5) (straight baselines)
• North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands), 1969 ICJ Rep. 3, 22, 25, 27, 29, 32–33, 38–40, 45
(20 February) (1958 Continental Shelf Convention Articles 1–5; 1958 High Seas
Convention Preamble)
• Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/United States), 1984 ICJ Rep. 246, 294 (12 October) (exclusive economic zone
regime)
• Case Concerning the Continental Shelf (Libya v. Malta), 1985 ICJ Rep. 13, 33 (3 June)
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(Articles 57 breadth of the EEZ, 76(1) definition of continental shelf, 83(1) delimitation)
• Case Concerning Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States), 1986 ICJ Rep. 14, 111–112 (27 June) (Articles 18
meaning of passage, and 58 rights and duties of other states in the EEZ)
• Case Concerning the Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras; Nicaragua intervening), 1992 ICJ Rep. 351, 588 (11 September)
(Article 10 bays)
• Case Concerning Maritime Delimitation in the Area Between Greenland and Jan Mayen
(Denmark v. Norway), 1993 ICJ Rep. 38, 58, 59, 62 (14 June) (1958 Continental Shelf
Convention Article 6 on delimitation)
• Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v.
Bahrain), 2001 ICJ Rep. 40, 93, 94, 97, 101, 110, 111 (16 March) (Articles 2(1) legal
status of territorial sea, 7(4) straight baselines, 13(1) low-tide elevations, 15
delimitation, 17 right of innocent passage, 74(1) and 83(1) delimitation, 121(2) islands;
Articles 4(3), 11(1), 12(1), 14 of the 1958 Territorial Sea Convention)
• The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, ITLOS
Order, para. 82 (3 December 2001) (duty to cooperate in Part XII)
• The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, ITLOS sep.
op. Judge Wolfrum, p. 3 (3 December 2001) (article 194(2), precautionary principle or
approach)
• Case concerning Land Reclamation by Singapore in and around the Straits of Johor
(Malaysia v. Singapore), Provisional Measures, ITLOS Order, para. 92 (8 October
2003) (duty to cooperate in Part XII)
• Territorial and Maritime Dispute (Nicaragua v. Colombia), 2012 ICJ Rep. 1, 43, 50, 51,
66, 111 (19 November) (Articles 2(1) legal status of territorial sea, 3 breadth of
territorial sea, 5 normal baseline, 74(1) delimitation, 76(1) definition of continental
shelf, 83(1) delimitation, 121 regime of islands; Articles 1(1) and 2 (sovereignty over
territorial sea) Territorial Sea Convention)
• Maritime Dispute (Peru v. Chile), 2014 ICJ Rep. para. 179 (27 January) (Articles 74(1)
and 83(1) delimitation)
Note: The parenthetical references in this table are to provisions of the 1982 UN Convention on
the Law of the Sea, except where otherwise indicated.
 Today’s Customary International Law of the Sea 241

Table 2
A list in chronological order of the cases in which courts and tribunals have identified and
applied, pursuant to Article 293(1) of the 1982 UN Convention on the Law of the Sea
(LOS Convention), rules of customary international law not contained in the LOS Con-
vention that are applicable to resolving disputes involving the interpretation or application
of the Convention

• Case Concerning Military and Paramilitary Activities in and Against Nicaragua

(Nicaragua v. United States), [1986] ICJ Rep. 14, paras. 190–191 (27 June) (use of
force)
• The M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), ITLOS
judgment, para. 155 (1 July 1999) (use of force in maritime law enforcement)
• Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional
Measures, ITLOS, sep. op. Judge Laing, para. 16 and note 6 (27 August 1999)
(precautionary principle not customary international law)
• Guyana v. Suriname, Decision of Annex VII Arbitral Panel, paras. 405–406, 445 (17
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September 2007) (use of force)

• Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, [2010] ICJ Rep.
14, 83, para. 204 (20 April) (environmental assessment required)
• Responsibilities and obligations of states sponsoring persons and entities with respect to
activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes
Chamber), Advisory Opinion [2011] ITLOS Rep. paras. 57, 135, 145–149, 169, 178,
194, 209–210 (1 February) (Articles 31–33 Vienna Convention on the Law of Treaties;
precautionary approach (trend); environmental impact assessments; Articles 1, 2, 5, and
31(1), ILC draft Articles on State Responsibility on liability, damage, and
compensation)
• The ARA Libertad Case (Argentina v. Ghana), ITLOS Order on request for provisional
measures, para. 95 (Case No. 20, 15 December 2012) (sovereign immunity of warships)
• The M/V “Virginia G” Case (Panama/Guinea Bissau), ITLOS Judgment, 49, para. 153
(Case No. 19, 14 April 2014) (exhaustion of local remedies as a prerequisite for
diplomatic protection)
Note: The parentheticals in this table refer to the subject matter of the rules applied in these cases.
ITLOS, International Tribunal for the Law of the Sea; ILC, International Law Commission.

States and law of the sea experts have also expressed views on these questions. They
are noted throughout this article given their subsidiary role in identifying the customary
international law of the sea. For example, the United States addressed the first general
question in the President’s Ocean Policy Statement of 10 March 1983:

The [LOS] convention contains provisions with respect to traditional uses of

the oceans [such as navigation and overflight] which generally confirm existing
maritime law and practice . . . .7

In 1989 the United States and the Soviet Union together declared that the LOS Conven-
tion, “with respect to the traditional uses of the oceans, generally constitute[s] international
law and practice . . . .”8
While not specifically addressing the customary international law of the sea, the In-
ternational Law Association (ILA) and the International Law Commission (ILC) have
addressed certain aspects of customary international law. The ILA adopted in 2000 a
 242 J. A. Roach

“Statement of Principles Applicable to the Formation of General Customary International

Law” at its 60th conference in London.9 Since 2012, the ILC has been studying the subject
“Identification of customary international law.”10
In recent years the International Court has had to face squarely the first question of
what is the customary international law of the sea since, in a number of contentious cases,
one of the parties had not consented to be bound by the relevant treaty. The Court was
forced to decide what would be the relevant provisions binding on both parties; that is, to
state what provisions of the 1958 or 1982 Conventions were customary international law
and thus binding on the states subject to being a persistent objector.11
In Qatar v. Bahrain (2001)12 and Nicaragua v. Colombia (2012),13 Qatar and Colombia
were not party to the 1982 LOS Convention while Bahrain and Nicaragua were. Further,
neither Qatar nor Bahrain were party to the 1958 Conventions while Nicaragua was party
to none of the 1958 Conventions and Colombia was party only to the Convention on the
Continental Shelf.
It should be noted that, with the exception of the 1969 North Sea Continental Shelf
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Cases,14 the Court has not explained why a particular provision of the law of the sea treaties
meets the standards for customary international law, “international custom, as evidenced
by a practice generally accepted as law.”15 The Court has only pronounced certain treaty
provisions to be customary international law or not.16
As will be seen from the discussion that follows, the International Court has found a
number of the provisions of these treaties to be customary international law of the sea. This
article organizes by maritime zone those decisions, those of ITLOS, and the views of states
and scholars.

The Territorial Sea and Contiguous Zone

The International Court has found the following provisions of the 1958 Convention on the
Territorial Sea and the Contiguous Zone to be customary international law:
• Articles 1(1) and 2—sovereignty over territorial sea;17
• Article 4(3)—straight baseline from low-tide elevations;18
• Article 11(1)—low-tide elevations;19
• Article 12(1)—territorial sea delimitation;20 and
• Article 14—right of innocent passage.21
The International Court has found the following 12 provisions of Part II of the LOS
Convention as being part of customary international law under Section 2 “Limits of the
Territorial Sea”:
• Article 2—legal status of the territorial sea, of the airspace over the territorial sea
and of its bed and subsoil;22
• Article 3—breadth of the territorial sea;23
• Article 5—normal baseline;24
• Articles 7(1), 7(3), and 7(5)—straight baselines;25
• Article 7(4)—straight baselines;26
• Article 10—bays;27
• Article 13(1)—low-tide elevations;28
• Article 15—delimitation of the territorial sea between states with opposite or adja-
cent coasts;29
• Article 17—right of innocent passage;30 and
• Article 18—meaning of passage.31
 Today’s Customary International Law of the Sea 243

The United States has asserted that Article 3 on the breadth of the territorial sea reflects
customary international law.32 The United States has stated that the basic provisions on
the drawing of baselines in the Territorial Sea Convention and LOS Convention reflect the
customary international law.33
Writing in 1999, Churchill and Lowe expressed the view that most of the provisions
on baselines in the 1958 Territorial Sea Convention and the 1982 LOS Convention had
passed into customary international law, with the notable exception of Article 7(2) of the
LOS Convention on highly unstable coastlines.34
Crawford stated that Article 15 of the LOS Convention on delimitation is considered
reflective of customary international law.35 He added that “[c]ustomary law recognizes the
right of innocent passage through the territorial sea, reflected in UNCLOS Article 17.”36
In 1991 the United States stated that:

the right of innocent passage through the territorial sea may be exercised by all
ships, regardless of type or cargo, and may not in any case be subjected to a
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requirement of prior permission of, or notice to, the coastal state. This right is
also recognized in customary international law as reflected in the 1982 United
Nations Convention on the Law of the Sea.37

Churchill and Lowe stated that the provisions of Article 19 of the LOS Convention were
“rapidly” becoming “a rule of customary international law.”38 On the question of warships’
right of innocent passage, Tanaka concluded that “[o]verall it may have to be accepted that
customary international law is obscure on this subject.”39
The United States has said that the provision in Article 22 of the LOS Convention
permitting a coastal state to establish sea-lanes in its territorial sea reflects customary
international law.40 The United States considers that the provisions in Article 24(1)(a) of
the LOS Convention on the duties of the coastal state reflect customary international law.41
Churchill and Lowe noted that the coastal state duty to give notice of known naviga-
tional hazards in the territorial sea is a customary law duty reflected in the Corfu Channel
Case,42 Article 15(2) of the Territorial Sea Convention, and Article 24(2) of the LOS
Convention.43 They concluded that there is a customary international law right to exclude
vessels from the territorial sea if the vessels are not engaged in passage, noting that Article
25 of the LOS Convention does not expressly permit this.44
Tanaka opined that there is no right of entry into ports of foreign states in customary
international law,45 reasoning from the International Court’s decision in the Nicaragua v.
United States Case that “it is by virtue of its sovereignty that the coastal State may regulate
access to its ports.”46 On the other hand, Tanaka stated that, “[f]or humanitarian and safety
reasons, it is generally recognised that any foreign vessel in distress has a right of entry to
any foreign port under customary international law.”47 The United States agrees that, under
the doctrine of force majeure, there is a customary international law right of a foreign vessel
in distress to enter port in order to preserve human life but not just cargo.48
The United States has stated that Article 33 on the contiguous zone of the LOS
Convention and its corresponding provision in Article 24 of the 1958 Convention on the
Territorial Sea and the Contiguous Zone is customary international law.49

Immunity of Warships
The ITLOS has stated that, in reference to LOS Convention Article 32,50 “in accor-
dance with general international law, a warship enjoys immunity, including in internal
 244 J. A. Roach

waters.”51 The separate opinion of Judges Wolfrum and Cot clarified their view of this
statement:

43. Comparing the wording of these two provisions on the immunity of warships
makes it very clear that only article 95 of the Convention contains a regulation
on immunity whereas article 32 does not; any other interpretation disregards
the difference in wording while making it obsolete. That having been said, this
must not be misunderstood to mean that warships have no immunity in internal
waters; they have but the basis thereof is in customary international law and
not in the Convention.

∗ ∗ ∗ ∗

47. That warships in internal waters enjoy immunity from the exercise of coastal
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State jurisdiction, which includes immunity from judicial proceedings or any

enforcement measure, is well established in customary international law and
recognized in legal doctrine. This was affirmed inter alia by the International
Law Institute in its Resolution[s] of 1897 and of 1928. The Institute’s Stockholm
Resolution, “Règlement sur le régime des navires de guerre et de leurs équipages
dans les ports étrangers en temps de paix” of 1928, provided (articles 15 and
26) that warships cannot form the subject of seizure, arrest, or detention by
any legal means whatsoever or by any judicial procedure (article 24). This
customary international law is confirmed by a judgment of the US Supreme
Court in the Case Schooner Exchange v. McFaddon. The relevant passage reads:
The Exchange, being a public armed ship, in the service of a foreign
sovereign, with whom the government of the United States is at peace, and
having entered an American port open for her reception, on the terms on which
ships of war are generally permitted to enter the ports of a friendly power, must
be considered as having come into the American territory, under an implied
promise, that while necessarily within it, and demeaning herself in a friendly
manner, she should be exempt from the jurisdiction of the country. ([11 U.S.
(7 Cranch) 116,] at 147 [1812]).
48. There are several national court decisions which confirm and honour
this legal principle of customary international law, such as that of the Cour
d’appel de Paris on 10 August 2000 ordering the release of vessel Sedov, a
training vessel of Russia. The question remains whether this customary inter-
national law has been incorporated (incorporation by reference) through article
32 into the Convention.
49. The mechanism to incorporate rules from one set of rules into another
one is well established in many national legal systems. However, it always has
to be established whether the norm in question incorporates another one by ref-
erence or whether that norm only refers to another norm without incorporating
it, thus leaving the issue to be regulated by the other set of norms, in our case
by customary international law.
50. Article 32 of the Convention does not indicate that through it the
customary international law is being incorporated into the Convention. It simply
takes the immunity of warships as a fact. It becomes evident upon scrutiny of
the Convention that there are very few references to customary international
 Today’s Customary International Law of the Sea 245

law—except the already mentioned last preambular paragraph. This is due to

the overall policy towards customary international law, whose universality was,
at the time of the drafting of the Convention, put into question.52

France has stated: In accordance with the 1982 United Nations Convention on the Law
of the Sea (among others art. 32 & 236) and Customary Law, every State craft (e.g. warship,
naval auxiliary and other vessel, aircraft or spacecraft owned or operated by a State) enjoys
sovereign immunities, regardless of its location and the period elapsed since it was reduced
to wreckage (general principle of non limitation of rights of States).53
Churchill and Lowe acknowledged the immunity from enforcement jurisdiction that
warships enjoy under customary international law, citing Article 22(2) of the Territorial
Sea Convention and Article 32 of the LOS Convention.54 They noted that the flag state’s
responsibility for warship breaches of coastal states’ law exists in customary international
law and under Article 31 of the LOS Convention.55
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Straits Used for International Navigation

In its 1949 judgment on the merits in the Corfu Channel Case, the International Court ruled
that it is

generally recognized and in accordance with international custom that States

in time of peace have a right to send their warships through straits used for
international navigation between two parts of the high seas without the previous
authorization of a coastal State, provided that the passage is innocent. Unless
otherwise prescribed in an international convention, there is no right for a
coastal State to prohibit such passage through straits in time of peace.56

The United States is of the view that the regime of innocent passage in straits used
for international navigation between a part of the high seas or an EEZ and the territorial
sea of a foreign state, reflected in Article 45(1)(b) of the LOS Convention, is customary
international law.57
The United States has also said that it

does not believe that customary international law permits a State unilaterally
and without prior international approval to construct a fixed bridge over an
international strait which in many instances is the sole practical deep water
route available.58

After reviewing the practice of states, Churchill and Lowe concluded

that though certain straits of particular importance to international navigation,

such as the Straits of Dover and probably the Straits of Gibraltar, a customary
law right akin to transit passage does exist, either because the States bordering
the straits have explicitly granted such a right to third States, or because they
have acquiesced in the exercise of such a right. However, a general right of
transit passage may not yet have become established in customary international
law.59

Tanaka expressed a similar view:

 246 J. A. Roach

At present [2011], there appears to be little evidence to prove that ‘extensive

and virtually uniform’ State practice and opinio juris exist with regard to the
right of transit passage. One can say, therefore, that the right of transit passage
is a new regime established by the LOSC, and has yet to become a part of
customary international law.60

Archipelagic States
Courts and tribunals have not had occasion to address the customary international law status
of the archipelagic states regime in Part IV of the LOS Convention.
The United States has stated that Articles 44 and 54 of the LOS Convention reflect
customary international law.61
Scholars have expressed their views at different times. Rothwell and Stephens opined
that “this area of the law of the sea is accepted as part of customary international law.”62 Their
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conclusion is based on “the level of acceptance of the regime of archipelagic states, which
has now [2010] de facto and de jure been operative since the 1950s.”63 A decade earlier,
Churchill and Lowe were definitive in stating that the special regime for archipelagos in
the LOS Convention is “now reflected in customary international law.”64 However, Tanaka
wrote in 2011: “[i]t may be said that the legal regime for archipelagic waters is a result of
the development of international law, not the codification of the law.”65

The Exclusive Economic Zone

As early as 1984 a chamber of the International Court held that the concept of the exclusive
economic zone (EEZ) was customary international law.66 Shortly thereafter, the full Court
similarly ruled in the Libya v. Malta Case.67 In the 1985 Libya v. Malta Case, the Court also
held that Article 57 is customary international law.68 In its 1986 decision on the merits in
the Nicaragua v. United States Case, the International Court stated the high seas freedoms
of navigation apply in the EEZ, citing Article 58.69 In 2012 the same Court ruled that the
delimitation provisions of Article 74(1) were customary international law.70
The United States believes that the conduct of military surveys in the EEZ is consistent
with customary international law as a high seas freedom of navigation.71
Crawford concluded in 2012 that “the EEZ forms part of customary law . . . . The
customary law version of the concept is closely related to the version which emerged
within UNCLOS III. Both under UNCLOS and customary law the zone is optional and its
existence depends upon an actual claim.”72 Crawford noted that “many high seas freedoms
are applicable in the EEZ (Articles 58, 86), and this is also the position in customary
international law.”73
Churchill and Lowe opined with regard to the EEZ regime set out in Part V of the LOS
Convention that:

what is part of customary international law are the broad rights of coastal and
other States enumerated in article 56 and 58 of the [LOS] Convention. It is much
more doubtful whether the detailed obligations in the articles relating to the
exercise of coastal State jurisdiction over fisheries, pollution and research have
passed or are likely quickly to pass into customary international law, partly
because of a lack of claims embodying the duties of the Convention, partly
because there is some divergence between State practice and the Convention,
 Today’s Customary International Law of the Sea 247

and partly because some of the conventional rules would not seem to have the
‘fundamentally norm-creating character’ necessary for the creation of a rule of
customary international law . . . .74

With regard to fisheries, Churchill and Lowe expressed the view that:

[w]hat is much less certain is whether the coastal State’s fishery management
duties set out in articles 61 and 62 have become part of customary law.75
[M]ost of the twenty or so States which still claim or in the past have
claimed a 200-mile exclusive fishing zone claim the jurisdiction to control
fisheries research in the zone where it involves the taking of fish . . . . [I]t is likely
that in general such claims now represent a rule of customary international law,
first because there have been no protests to such claims (so far as we are aware),
and secondly, because similar claims made in respect of twelve-mile exclusive
fishing zones were . . . generally accepted.76
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Crawford concluded in 2012 that “the concept of preferential fishing rights seems to
have survived in customary law despite its absence from UNCLOS.”77
The United States has expressed the view that Article 66(3)(a) on fishing for salmon
on the high seas reflects customary international law.78
With regard to the rights of landlocked and geographically disadvantaged states to
exploit living resources in the EEZ, Tanaka wrote that “in light of the paucity of State
practice on this subject, it remains uncertain whether and to what extent Articles 69–72 of
LOSC have become customary international law.”79

The Continental Shelf

In the 1969 North Sea Continental Shelf Cases,80 because Germany was not party to the
1958 Convention on the Continental Shelf but the Netherlands and Denmark were, the
Court examined the customary international law status of the articles of that treaty. It ruled
that the following articles represented customary international law:

• Article 1—definition of the continental shelf;81

• Article 2—rights of the coastal state over the continental shelf;82
• Article 3—legal status of the superjacent waters and air space;83
• Article 4—submarine cables and pipelines;84 and
• Articles 5(1) and 5(6)—rights and freedoms of other states.85

On the other hand, the Court found that Articles 6(1) and 6(2) on delimitation of the
continental shelf did not then reflect customary international law because it was subject to
reservations and not reflective of state practice “up-to-date.”86 Subsequently, the Court in
87
the 1993 Greenland/Jan Mayen Case equated Article 6 with customary law by relying on
the 1977 Award of the Court of Arbitration in the Anglo-French Continental Shelf Case.88
In addition, the Court equated the customary law applicable to the fishery zone with that
governing the EEZ on the basis of the agreement of the parties.89 Thus, in this case the
Court for the first time “applied the corrective-equity approach as customary law . . . [and]
the equidistance method is incorporated into the domain of customary law.”90 In the 2001
Qatar/Bahrain Case, the International Court accepted the applicability of the corrective-
equity approach as customary law in the delimitation between states with adjacent coasts.91
 248 J. A. Roach

Later, the International Court found that two provisions in Part VI of the LOS Con-
vention on the continental shelf are customary law:

• Article 76(1)—definition of the continental shelf;92 and

• Article 83(1)—delimitation of the continental shelf between states with opposite or
adjacent coasts.93

The United States considers that Articles 76 and 77 reflect customary international
law.94
Crawford stated that “the first three articles [of the Continental Shelf Convention]
by 1958 reflected the customary law position.” He added that “Article 76 is generally
recognized as representing the new standard of customary law for the shelf.”95
Tanaka stated that “[t]oday there is no doubt that the rights of the coastal state over the
continental shelf are well established in customary international law.”96 He added that the
provisions in Articles 56(1) and 77(1), which state that in the EEZ and on the continental
shelf the coastal state has sovereign rights for the purpose of exploring and exploiting the
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natural resources and conservation of marine living resources, are customary international
law.97
Churchill and Lowe stated that it “would be difficult to argue that any continental
shelf claim consistent with the article 76 formula was not compatible with customary
international law.”98 On the other hand, Tanaka wrote (before the International Court’s
judgment in the 2012 Nicaragua v. Colombia Case):

It seems very difficult to find “extensive and virtually uniform” State practice
and opinio juris with regard to the continental shelf beyond 200 nautical miles.
Hence it would be difficult to argue that the continental shelf beyond 200
nautical miles is part of customary international law.99

Churchill and Lowe argued that the rule in Article 83(3) on provisional measures is
customary international law.100

The High Seas

The International Court has not yet addressed the customary international law status of any
of the provisions of Part VII “The High Seas,” of the 1982 LOS Convention. However, the
second preambular paragraph of the 1958 High Seas Convention states that its provisions
are “generally reflective of established principles of international law,”101 a paragraph which
the International Court has cited favorably.102 The Court has specifically said that Article
2 on freedom of the seas is customary international law.103 The provisions of the High
Seas Convention are now reflected in Section 1 of Part VII, Articles 86–115, of the LOS
Convention:

• Article 87—freedom of the high seas (from the High Seas Convention Article 2);104
• Article 89—invalidity of claims of sovereignty over the high seas (from Article 2,
first sentence of the High Seas Convention);105
• Article 90—right of navigation (from Article 4 of the High Seas Convention);
• Article 91—nationality of ships (from Article 5 of the High Seas Convention);106
• Article 92—status of ships (from Article 6 of the High Seas Convention);107
• Article 93—Ships flying the UN flag (from Article 7 of the High Seas Convention);
 Today’s Customary International Law of the Sea 249

• Article 94—duties of the flag state (from Articles 5(1) and 10 of the High Seas
Convention);108
• Article 95—immunity of warships on the high seas (from Article 8 of the High Seas
Convention);109
• Article 96—immunity of ships used only on government noncommercial service
(from Article 9 of the High Seas Convention);
• Article 97—penal jurisdiction in collisions (from Article 11 of the High Seas Con-
vention);
• Article 98—duty to render assistance (from Article 12 of the High Seas Convention);
• Article 99—prohibition of transport of slaves (from Article 13 of the High Seas
Convention);
• Articles 100–107—piracy (from Articles 14–20 of the High Seas Convention);110
• Article 110—right of visit (from Article 22 of the High Seas Convention);111
• Article 111—right of hot pursuit (from Article 23 of the High Seas Convention);112
and
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• Articles 112–115—submarine cables and pipelines (from Articles 26–29 of the High
Seas Convention).

The United States has stated that Article 92 of the LOS Convention and Article 6 of the
High Seas Convention codify customary international law.113 The United States has said
the wording of article 110 is customary international law.114
In its judgment in the case of M/V “Saiga” (No. 2), the ITLOS said:

Although the [LOS] Convention does not contain express provisions on the use
of force in the arrest of ships, international law, which is applicable by virtue
of article 293 of the Convention, requires that the use of force must be avoided
as far as possible and, where force is unavoidable, it must not go beyond what
is reasonable and necessary in the circumstances.115

Crawford stated that “[i]nsofar as jurisdiction is concerned, UNCLOS Part VII gen-
erally reflects customary international law,” referring specifically to Articles 88–90, 92(1),
and 94.116 Crawford noted that “custom has come to reflect” the definition of piracy in
Article 101.117 Crawford added that the right of approach, although it is not expressly
mentioned in UNCLOS Part VII, “is recognized by customary law.”118
Rothwell and Stephens were of the view that the right of “ships to enter the territorial
sea on a temporary basis to provide assistance to vessels in distress or persons in jeopardy
at sea,” known as the right of assistance entry, exists under customary international law,
founded on Articles 18(2) and 98 of the LOS Convention and the Safety of Life at Sea
Convention.119 The United States and Costa Rica agree.120
Crawford noted that the “freedom of fishing on the high seas was well established
in customary international law,” but is subject to the conditions laid down in the LOS
Convention Part VII, Section 2.121

Submarine Cables
In the 1969 North Sea Continental Shelf Cases, the International Court found that Article
4 of the 1958 Continental Shelf Convention was customary international law.122 The Court
also noted favorably the provision of the Preamble to the High Seas Convention that
 250 J. A. Roach

its provisions are “generally reflective of established principles of international law.”123

Submarine cables are addressed in Articles 26–29 of the High Seas Convention.
International courts have not had occasion to address the customary international law
status of the provisions in the LOS Convention on submarine cables (Articles 21(1)(c),
51(2), 58(1), 79, 87(1)(c), 112–115, and 297(1)(a)).
In a recent book devoted to submarine cables, Burnett, Davenport, and Beckman stated
that “[m]ost of the provisions of UNCLOS (including the provisions on submarine cables)
can be said to bind non-parties as they are best evidence of customary international law.”124

The Regime of Islands

In its recent decision in Nicaragua v. Colombia Case, the International Court ruled that all
three paragraphs of Article 121 on the regime of islands are customary international law.125

Landlocked and Geographically Disadvantaged States

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Courts and tribunals have not had occasion to address the customary international law status
of the various provisions on landlocked and geographically disadvantaged states contained
in the LOS Convention. Tanaka stated that the navigational rights of landlocked states “can
reasonably be considered as part of customary international law.”126

The Area
Courts and tribunals have not had occasion to address the customary international law
status of the provisions on the Area; that is, the deep seabed beyond the limits of national
jurisdiction, contained in Part XI and Annexes III and IV of the LOS Convention and
its Implementing Agreement. Neither have states or scholars expressed any views on this
question.

Marine Pollution
The International Court has stated that the “general obligation of States to ensure that
activities under their jurisdiction and control respect the environment or other States or
of areas beyond national control is now part of the corpus of international law relating to
the environment.”127 This rule is reflected in Article 194(2) of the LOS Convention which
ITLOS Judge Wulfrom stated reflects customary international law.128
ITLOS has stated that “the duty to cooperate is a fundamental principle in the prevention
of pollution of the marine environment under Part XII of the [LOS] Convention and
general international law and that rights arise therefrom which the Tribunal may consider
appropriate to preserve under 290 of the Convention.”129
The International Court has held that “it may now be considered a requirement under
general international law to undertake an environmental assessment where there is a risk that
the proposed industrial activity may have a significant adverse impact in a transboundary
context, in particular, on a shared resource.”130 This requirement is reflected in Article 206,
Assessment of potential effects of activities, of the LOS Convention.
Two of ITLOS’ judges have expressed the view that the precautionary principle or
approach is not customary international law.131
The United States has expressed the view that the provisions on sovereign immunity
contained in Article 236 reflect customary international law.132
 Today’s Customary International Law of the Sea 251

Churchill and Lowe identified the following provisions in Part XII of the LOS Con-
vention as being reflective of customary international law:
• Article 210(5)—dumping within the territorial sea, EEZ, and onto the shelf;133
• Article 221—intervention beyond the territorial sea;134 and
• Article 236—sovereign immunity.135
Churchill and Lowe expressed the view that:

[i]n light of this limited and somewhat divergent practice, it must be doubtful
whether those provisions of the Law of the Sea Convention relating to coastal
and port State jurisdiction in respect of ships which go beyond the traditional
law have become part of customary international law.136

Tanaka examined the customary law for marine environmental protection prior to
1982137 and under the LOS Convention.138 As to the latter, Tanaka said “there may be
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room for the view that obligations for the protection of the marine environment embodied
in the LOSC have become part of customary law.”139 He suggested that the obligation of
notification in Article 198 may already represent customary international law.140
The final report of the ILA’s Committee on Coastal State Jurisdiction Relating to
Marine Pollution states that the phrase “generally accepted international rules and standards
[found in Articles 21(4), 211(2), 211(5), 211(6)(c), and 226(1)(a)] cannot be equated with
customary international law.”141

Marine Scientific Research

Courts and tribunals have not had occasion to address the customary international law status
of the provisions on marine scientific research principally contained in Part XIII of the LOS
Convention.
The United States has expressed its view that the right to regulate marine scientific
research in the territorial sea contained in LOS Convention Article 21(1)(g) is customary
international law.142
Churchill and Lowe stated that:

the principle of coastal State consent for research in the EEZ and on the
continental shelf is now part of customary international law. However, many of
the details of the Convention regime, such as the period of notice and implied
consent, are not now, and are probably incapable of becoming part of customary
international law because of the paucity of State practice and because they do
not seem to have the fundamentally norm-creating character necessary for an
emergent rule of customary law.143

Summary
Over the years, the International Court has addressed the customary international law
status of some of the provisions in three of the 1958 Geneva Conventions on the Law of
the Sea. With regard to the Convention on the Territorial Sea and the Contiguous Zone,
the Court has found that Article 4(3) on straight baselines, Article 7 on bays, Article 11(1)
on low-tide elevations, Article 12(1) on deli that Articles 3 to 6 on baselines, Article 7 on
 252 J. A. Roach

bays, Article 15(2) on dangers to navigation, and Article 22(2) on immunities of ships are
customary international law. The International Court has found the following provisions of
the 1958 Convention on the Continental Shelf are customary international law: Articles 1
to 4, 5(1), 5(6), and 6. With regard to the Convention on the High Seas, the Court has noted
favorably the preambular provision that its provisions “are generally reflective of established
principles of international law” and found specifically that Article 2 on freedom of the seas
is customary international law. Scholars have opined that Articles 8 and 9 (immunities),
Article 22 (right of visit), and Article 23 (hot pursuit) are customary international law.
The International Court has not yet had the occasion to address the customary inter-
national law status of all of the provisions pertaining to the “traditional uses of the sea
reflected in the LOS Convention.” However, the Court has addressed a substantial number
of those provisions as detailed above.
As shown in Table 1, most of the cases decided by the International Court where
provisions of the law of the sea conventions were found to be customary international
law occurred after the LOS Convention was opened for signature in 1982. Further, in
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the five relevant cases decided after the LOS Convention entered into force in 1994, the
Court pronounced that a number of provisions in the Convention were part of customary
international law.
The Court in the cases decided after 1984 did not provide a detailed analysis of the
evidence supporting a finding that a particular provision was customary international law.
While the Court has not explained its reasoning, it may well be based on the general
acceptance of the LOS Convention by states parties and nonparties (persistent objectors
excepted).
Another more evident explanation is that, in the Nicaragua/Honduras and Nicar-
agua/Colombia cases, the Court accepted the parties’ view that the provisions in question
were customary international law. One might, however, ask if this is consistent with the
Court’s duty in deciding such questions.144
Finally, courts and arbitral tribunals have identified and substantiated certain rules of
customary international not found in the LOS Convention, but which were necessary to
resolve disputes before it between parties to the Convention. The matters included the use
of force at sea and the sovereign immunity of warships in foreign ports.

Notes
1. Convention on the Territorial Sea and Contiguous Zone, 29 April 1958, 516 U.N.T.S. 206;
Convention on the High Seas, 29 April 1958, 450 U.N.T.S. 82; Convention on Fishing Conservation
of the Living Resources of the High Seas, 29 April 1958, 559 U.N.T.S. 286; and Convention on the
Continental Shelf, 29 April 1958, 499 U.N.T.S. 312.
2. U.N. Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397.
3. As of 18 September 2013, of the 166 parties to the LOS Convention, 138 are coastal or
island states and 27 are landlocked. Based on data from the Division of Ocean Affairs and the Law
of the Sea (DOALOS) Web site at www.un.org/Depts/los/.
4. Of the 30 states not party to the LOS Convention, 15 are coastal states and 15 are landlocked.
The coastal states not party to the Convention include: Colombia, Iran, Israel, Peru, Turkey, the United
States, and Venezuela. The number of parties to the 1958 Geneva Conventions on the Law of the
Sea is relatively small: Convention on the Territorial Sea and the Contiguous Zone, supra note 1, 52
parties; Convention on the Continental Shelf, supra note 1, 58 parties; and Convention on the High
Seas, supra note 1, 63 parties.
5. Examples include: Article 16 of the Agreement on Cooperation on Marine Oil Pol-
lution Preparedness and Response in the Arctic, 15 May 2013, available at www.state.gov/
 Today’s Customary International Law of the Sea 253

r/pa/prs/ps/2013/05/209406.htm; Article 16 of the International Convention for the Control and Man-
agement of Ships’ Ballast Water and Sediments, 2004, 13 February 2004, available at www.water.epa.
gov/type/oceb/habitat/upload/2004 10 29 invasive species BWM-Treaty 36.pdf; and Article 15 of
the International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001, 5 Octo-
ber 2001, available at www.safemedproject.org/documents/reference-documents/task1.1-important-
documentation-for-maritime-administrations/afs/afs-convention-english-version/at download/file.
6. Decisions of institutions created by the LOS Convention, supra note 2, such as the Inter-
national Tribunal for the Law of the Sea (ITLOS), and Annexes VII and VIII arbitral tribunals are
unlikely to address the first question since only parties to the Convention may invoke their jurisdiction.
However, Article 293(1) of the LOS Convention requires tribunals to apply “other rules of interna-
tional law not incompatible with” the LOS Convention where the Convention did not state those
rules. See The “ARA Libertad” Case (Argentina v. Ghana) (Provisional Measures), 15 December
2012, and The M/V “Saiga” (No. 2) Case (St. Vincent and the Grenadines v. Guinea) (Judgment) 1
July 1999, both available at the ITLOS Web site, www.itlos.org.
7. United States, President’s Ocean Policy Statement, 10 March 1983, available at
the DOALOS Web site, supra note 3. Secretary of State Hillary Clinton specifically char-
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acterized as customary international law this point in her testimony in support of the LOS
Convention before the Senate Foreign Relations Committee on 23 May 2012, available at
www.state.gov/secretary/rm/2012/05/190685.htm.
8. Joint Statement by the United States and Soviet Union, with Uniform Interpretation of
Rules of International Law Governing Innocent Passage, 2 September 1989, Law of the Sea Bulletin
14 (1989): 12–13; 28 I.L.M. 1444–1447 (1989); and American Journal of International Law 84
(1990): 239–242.
9. International Law Association (ILA), “Final Report of the Committee on Formation of
Customary (General) International Law: Statement of Principles Applicable to the Formation of
General Customary International Law (as amended at the London Conference),” Report of the
Sixty–Ninth Conference, London, 2000, 712–777.
10. International Law Commission (ILC), “Formation and evidence of customary international
law/Identification of customary international law,” available at www.legal.un.org/ilc/summaries/1 13.
htm. See links to the Secretariat’s study that endeavored to identify elements in the previous work
of the commission that could be particularly relevant to the topic, UN Doc. A/CN.4/659 (14 March
2013), and the special rapporteur’s introductory report, UN Doc. A/CN.4/663 (17 May 2013).
11. Yoshifumi Tanaka, The International Law of the Sea (Cambridge: Cambridge University
Press, 2012), 12. Turkey and Venezuela are perhaps the most prominent examples of a persistent
objector to the LOS Convention, each having voted against the adoption of the Convention in 1982.
They regularly vote against the annual UN General Assembly resolution on oceans and the law of
the sea. Turkey’s 2012 explanation reads:

[I]n our opinion the Convention does not provide sufficient safeguards for special geo-
graphical situations and, as a consequence, does not take into consideration conflicting
interests and sensitivities arising from special circumstances. Furthermore, the Conven-
tion does not allow States to register reservations to its articles. Although we agree with
the Convention in its general intent and with most of its provisions, we are unable to
become a party to it owing to those prominent shortcomings. That being the case, we
cannot support a resolution that calls on States to become parties to the United Nations
Convention on the Law of the Sea and to harmonize their national legislation with its
provisions.

UN Doc. A/67/PV.52 (12 December 2012), at 28, available at www.un.org/en/ga/search/view

doc.asp?symbol=A/67/PV.52. Venezuela objects to assertions of the universality of the LOS Con-
vention for similar reasons. Ibid., at 27.
12. Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v.
Bahrain), Judgment, [2001] I.C.J. Rep. 91, para. 167.
 254 J. A. Roach

13. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, [2012] I.C.J. Rep.
666, para. 114.
14. North Sea Continental Shelf Cases (Federal Republic of Germany/The Netherlands; Fed-
eral Republic of Germany/Denmark), [1969] I.C.J. Rep. 28–29, paras. 37−38 and 37−45, paras.
60–81.
15. See Case Concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States), [1986] I.C.J. Rep. at 97–98, paras. 184–186, for a discussion of the
Court’s methodology in determining customary international law rules. R. R. Churchill and A. V.
Lowe, The Law of the Sea, 3rd ed. (Manchester: Manchester University Press, 1999), 7, explain that
“international custom” means “a general and consistent practice adopted by States,” particularly the
practice of states most directly concerned; and “evidence of a practice generally accepted as law,”
also known as opinio juris, means “the conviction that the practice is one which is either required or
allowed by customary international law, or more generally that the practice concerns a matter which
is the subject of legal regulation and is consistent with international law.”
16. Tullio Treves, “Customary International Law,” Max Planck Encyclopedia of Public Inter-
national Law, available at www.mpepil.com, paras. 73 and 75.
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17. Nicaragua v. United States, supra note 15, at 111 para. 212.
18. Qatar v. Bahrain, supra note 12, at 101, para. 201.
19. Ibid., at 100, para. 201.
20. Ibid., at 94, para. 176.
21. Ibid., at 110, para. 223.
22. Nicaragua v. Colombia, supra note 13, at 690, para. 177, and ibid., at 93, para. 174; neither
opinion cites Article 2, rather just the wording of Article 2(1). In Nicaragua v. United States, supra
note 15, at 111, para. 212, the Court held that the wording in Articles 2(1) and 2(2) represents
customary international law.
23. Nicaragua v. Colombia, supra note 13, at 690, para. 177.
24. Qatar v. Bahrain, supra note 12, at 97, para. 184. For a detailed examination of the
provisions on normal baselines, reefs, low-tide elevations, and harbor works, see ILA, “Baselines
Under the International Law of the Sea,” Report of the Seventy-Fifth Conference, Sofia, 2012, available
at www.ila-hq.org/download.cfm/docid/C5F06515–9B22-49B6-B14D0EFEB5A80248.
25. The rules set out in these three paragraphs derive from the Court’s judgment in the Anglo-
Norwegian Fisheries Case, [1951] I.C.J. Rep. 128–143, where the Court found that the Norwegian
system was not contrary to international law.
26. Qatar v. Bahrain, supra note 12, at 100, paras. 201 and 102, para. 208. The Court found
the corresponding provision in Article 4(3) of the 1958 Territorial Sea Convention, supra note 1, to
be customary international law.
27. The International Court in the Land, Island and Maritime Frontier Case, [1992] I.C.J.
Rep. 588, para. 383, said that these provisions on bays, and Article 7 of the 1958 Territorial Sea
Convention, supra note 1, “might be found to express general customary law,” if the Gulf of Fonseca
were a single-state bay.
28. Qatar v. Bahrain, supra note 12, at 100, para. 201. The Court also found that the corre-
sponding provision in the 1958 Territorial Sea Convention, supra note 1, Article 11(1), was customary
international law. The Court further found that low-tide elevations were not subject to appropriation
even though the Conventions are silent on that point. Ibid., at 102, paras. 205–209. Tanaka, supra
note 11, at 70, concluded there “are no customary law rules concerning the use of tidal datum.”
29. Qatar v. Bahrain, supra note 12, at 93–94, para. 175. The Court also found that the
corresponding provision in the 1958 Territorial Sea Convention, supra note 1, Article 12(1) was
customary international law. Ibid., at 94, para. 176.
30. Ibid., at 110, para. 223. James Crawford, Brownlie’s Principles of Public International
Law, 8th ed. (Oxford: Oxford University Press, 2012), at 265 states: “[f]oreign ships have a right
of innocent passage through the territorial sea in customary law.” Ian Brownlie, Principles of Pubic
International Law, 7th ed. (Oxford: Oxford University Press, 2008), 187, stated that the predecessor
of Articles 17 and 18 of the LOS Convention, supra note 2, and Article 14 of the Territorial Sea
 Today’s Customary International Law of the Sea 255

Convention, supra note 1, “in substance” “corresponds to the customary law, but it is more specific
in certain respects.”
31. Nicaragua v. United States, supra note 15, at 111–112, para. 214.
32. U.S. Department of State telegram to U.S. Embassy Paris, 17 June 1989, ex-
cerpted in Digest of U.S. Practice in International Law 1989–1990, 445, available at
www.state.gov/documents/organization/139393.pdf; U.S. State Department telegram to U.S. Em-
bassy Caracas, January 2011, excerpted in Digest of U.S. Practice in International Law 2011,
407, available at www.state.gov/documents/organization/194081.pdf; and U.S. Diplomatic Note to
Ecuador, 9 December 2011, excerpted in Digest of U.S. Practice in International Law 2011, 409.
Tanaka, supra note 11, at 84, concurred.
33. U.S. Diplomatic Note to Denmark, July 1991, excerpted in Digest of U.S. Practice
in International Law 1991–1999, 1597–1598, available at www.state.gov/documents/organization/
139394.pdf; U.S. Diplomatic Note to Thailand, 28 August 2000, excerpted in Digest of U.S. Practice
in International Law 2000, 704, available at www.state.gov/documents/organization/139599.pdf and
www.state.gov/documents/organization/6843.doc.
34. Churchill and Lowe, supra note 15, at 53–56.
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35. Crawford, supra note 30, at 283, citing Qatar v. Bahrain, supra note 12.
36. Ibid., at 317.
37. U.S. Diplomatic Notes to Denmark, July 1991, and Oman, 12 August 1991, excerpted
in Digest 1991–1999, supra note 33, at 1597 and 1599. This statement, referring to Articles
17–26 and 52 of the LOS Convention was repeated in a diplomatic note to the Seychelles 28
June 2000, excerpted in Digest 2000, supra note 33, 707, and in a diplomatic note to Syria,
16 June 2004, excerpted in Digest of U.S. Practice in International Law 2004, 703, available at
www.state.gov/documents/organization/139391.pdf.
38. Churchill and Lowe, supra note 15, at 87.
39. Tanaka, supra note 11, at 89.
40. U.S. Department of State telegram to U.S. Embassy Helsinki, 2 June 1989, excerpted in
Digest 1989–1990, supra note 32, at 444.
41. Statement of the United States on possible civil nuclear sea shipments through the Arctic,
2 March 2001, excerpted in Digest of U.S. Practice in International Law 2001, 700, available at
www.state.gov/documents/organization/139600.pdf.
42. Corfu Channel Case [1949] I.C.J. Rep. 244.
43. Churchill and Lowe, supra note 15, at 100. Tanaka, supra note 11, at 96, concurred.
44. Ibid., at 87.
45. Tanaka, supra note 11, at 80.
46. Nicaragua v. United States, supra note 15, at 111, para. 213.
47. Tanaka, supra note 11, at 81 (citations omitted) and 117. See further, at 81–83 and 117,
for discussions of the impact of the coastal state’s interests on this right.
48. See Digest of U.S. Practice in International Law 2007, 650–651, available at
www.state.gov/documents/organization/147120/pdf; and “Collection of Sources on Entry into Port
Under Force Majeure,” available at 2001–2009.state.gov/s/l/2007/112701.htm.
49. U.S. Diplomatic Notes to Sudan, Venezuela, Haiti, June 1989, and Namibia, December
1990, excerpted in Digest 1989–1990, supra note 32, at 465–467 and 470.
50. LOS Convention, supra note 2, Article 32, provides in part “nothing in this Conven-
tion affects the immunities of warships and other government ships operated for non-commercial
purposes.”
51. ARA Libertad Case, supra note 6, at para. 95.
52. Ibid., separate opinion of Judges Wolfrum and Cot, paras. 43 and 47–50.
53. Communication from the French Foreign Ministry to the U.S. State Department, 28
November 2003, excepted in Digest of U.S. Practice in International Law 2004, supra note 37,
at 717.
54. Churchill and Lowe, supra note 15, at 99. Crawford, supra note 30, at 319 concurred.
55. Ibid., at 99.
 256 J. A. Roach

56. Corfu Channel Case, supra note 42, at 28 (emphasis in original).

57. U.S. Diplomatic Note to Canada, 13 June 2007, Digest 2007, supra note 48, at 638–640.
58. Address by RADM William L. Schachte, Jr., JAGC, USN, DOD Representative for Ocean
Policy Affairs, June 1992, Digest 1991–1999, supra note 33, at 1591.
59. Churchill and Lowe, supra note 15, at 113. They argued that Article 16(4) of the Territorial
Sea Convention, supra note 1, prohibiting the suspension of innocent passage in “straits used for
international navigation between one part of the high seas and another part of the high seas or the
territorial sea of a foreign State,” is customary international law, cautioning that the “customary law
right of passage through straits leading to the territorial sea of a third state remains controversial.”
Ibid., at 104.
60. Tanaka, supra note 11, at 107.
61. Letter from Assistant Legal Adviser for Oceans and International Environmental and
Scientific Affairs, 4 April 1989, excerpted in Digest 1989–1990, supra note 32, at 473.
62. Donald R. Rothwell and Tim Stephens, The International Law of the Sea (Oxford: Hart,
2010), 189.
63. Ibid.
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64. Churchill and Lowe, supra note 15, at 130.

65. Tanaka, supra note 11, at 109.
66. Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/United States), [1984] I.C.J. Rep. 294, para. 94.
67. Case Concerning the Continental Shelf (Libya v Malta), [1985] I.C.J. Rep. 33, para. 34:
“the institution of the exclusive economic zone, with its rule on entitlement by reason of distance, is
shown by the practice of States to have become part of customary law.”
68. Ibid.
69. Nicaragua v. United States, supra note 15, at 111, para. 214.
70. Qatar v. Bahrain, supra note 12, at 91, para. 167, and Nicaragua v. Colombia, supra note
13, at 674, para. 139. The Court reaffirmed this conclusion in Maritime Dispute (Peru v. Chile),
[2014] I.C.J. Rep. para. 179.
71. Information provided to the Republic of Korea in 2001 regarding USNS Bowditch, ex-
cerpted in Digest 2001, supra note 32, at 698.
72. Crawford, supra note 30, at 277.
73. Ibid., at 297, referring to the Nicaragua v. United States Case, supra note 15.
74. Churchill and Lowe, supra note 15, at 161–162.
75. Ibid., at 290. See also at p. 291 for a discussion expressing doubts of a possible customary
law rule requiring foreign fishing vessels be given access to any surplus in the EEZ.
76. Ibid., at 409–410.
77. Crawford, supra note 30, at 275–276.
78. U.S. Letter of Submittal on the Convention for the Conservation of Anadromous Stocks
in the Northern Pacific, 14 May 1992, S. Treaty Doc. 102–30, excerpted in Digest International Law
1991–1999, supra note 33, at 1703–1704.
79. Tanaka, supra note 11, at 385.
80. North Sea Continental Shelf Cases, supra note 14, at 25, para. 26.
81. Ibid., at 29, para. 39, and 38–39, para. 63. See: Bernard Oxman, “The Preparation of
Article 1 of the Convention on the Continental Shelf,” Journal of Maritime Law and Commerce 3
(1972): 245.
82. Ibid., at 22, para. 19; 29, para. 39; 32–33, para. 47; and 38–39, para. 63.
83. Ibid., at 38–39, para. 63.
84. Ibid., at 39–40, para. 65.
85. Ibid.
86. Ibid., at 27, para. 34; 38–39, paras. 62–64; and 45, para. 81.
87. Jan Mayen Case, [1993] I.C.J. Rep. 58, paras. 46 and 51.
88. Anglo-French Continental Shelf Case (1979), 18 I.L.M. 397.
89. Jan Mayen Case, supra note 87, at 59, para. 47.
 Today’s Customary International Law of the Sea 257

90. Tanaka, supra note 11, at 195.

91. Qatar v. Bahrain, supra note 12, at 111, para. 228, citing the Jan Mayen Case, supra note
87.
92. Libya v. Malta, supra note 67, at 55, para. 77, and Nicaragua v. Colombia, supra note 13,
at 666, para. 118.
93. Ibid., at 55, para. 77; Qatar v. Bahrain, supra note 12, at 91, para. 167; and Nicaragua v.
Colombia, supra note 13, at 674, para. 139. The Court reaffirmed this conclusion in Peru v. Chile,
supra note 70, at para. 179.
94. Letter of Submittal, Treaty Between the United States and Mexico on the Delimitation of
the Continental Shelf in the Western Gulf of Mexico Beyond 200 Nautical Miles, Washington, DC, 9
June 2000 (Article 76), S. Treaty Doc. 106–39, excerpted in Digest 2000, supra note 33, at 599, and
Guidance prepared by the U.S. State Department on claims related to Antarctica, 2004 (Article 77),
excerpted in Digest 2004, supra note 37, at 732.
95. Crawford, supra note 30, at 274.
96. Tanaka, supra note 11, at 133 and 134.
97. Ibid., at 222.
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98. Churchill and Lowe, supra note 11, at 150. Brownlie, supra note 30, at 213, concurred.
99. Tanaka, supra note 11, at 140–141.
100. Churchill and Lowe, supra note 15, at 192.
101. High Seas Convention, supra note 1.
102. North Sea Continental Shelf Cases, supra note 14, at 40, para. 65.
103. Ibid. Tanaka, supra note 11, at 23 concurred regarding Article 2.2.
104. Churchill and Lowe, supra note 15, at 204, stated that Articles 87 and 89 are customary
international law. In a submission to the IMO’s Marine Environment Protection Committee, the
United States, Liberia, the Marshall Islands, Singapore, the International Association of Independent
Tanker Owners, the International Chamber of Shipping, and the Oil Companies International Marine
Forum stated: “The historical principles of high seas freedom of navigation are founded in customary
international law and memorialized in Articles 58 and 87 of the United Nations Convention on the
Law of the Sea, 1982 (UNCLOS).” IMO doc. MEPC 58/10/7, 15 August 2008, 2, para. 10, available
at www.state.gov/documents/organization/138867.pdf.
105. Rothwell and Stephens, supra note 62, at 155, opined that Article 89 “is consistent with
customary international law on this matter.”
106. Churchill and Lowe, supra note 15, at 258, expressed doubt that the genuine link require-
ment in Article 5(1) of the High Seas Convention, supra note 1, represents customary international
law.
107. Tanaka, supra note 11, at 152 and 155, stated that the principle of the exclusive juris-
diction of the flag state (Article 92(1) first sentence) is well established in customary international
law.
108. See the discussion of the travaux préparatoires of Article 10 of the High Seas Convention,
supra note 1, in Bernard Oxman, “The Duty to Respect Generally Accepted International Standards,”
New York University Journal of International Law and Politics 26 (1991): 109, at 122–129.
109. Rothwell and Stephens, supra note 62, at 161, stated that Articles 95, 96, and 236 “re-
flect existing customary international law with respect to sovereign immunity of states which itself
is founded upon extensive jurisprudence by domestic courts and relevant municipal legislation”
(footnote omitted).
110. Brownlie, supra note 30, at 229, stated that the definition of piracy in Article 15 of the
High Seas Convention, supra note 1, is thought to represent the existing customary law. Tanaka, supra
note 11, at 16,0 stated: “[u]nder customary law and Article 105 of the LOSC, every State may seize
a pirate ship or aircraft and arrest suspected pirate.” He made the same point at 372. For the views
of the United States on the customary international law of piracy reflected in the LOS Convention,
see the declaration of State Department legal adviser Harold Koh, 3 September 2010, available at
www.state.gov/documents/organization/179327.pdf.
 258 J. A. Roach

111. Churchill and Lowe, supra note 15, at 212, stated that Article 22 of the High Seas Con-
vention, supra note 1, and Article 110 of the LOS Convention, supra note 2, “are generally regarded
as codifying customary international law.” Brownlie, supra note 30, at 232, stated that the right of
approach in time of peace is recognized by customary law. Tanaka, supra note 11, at 161, wrote “[o]ne
can say that the right of visit to a ship that is engaged in the slave trade represents customary law.”
Tanaka, at 162, provided that “[a] ship without nationality is without protection under customary
law” and at 163 further notes that “[i]t is universally recognized that warships of every State may
seize, and bring to a port of their own for punishment, any foreign vessel sailing under the same flag
as the inspecting warship without any authorization.”
112. Churchill and Lowe, supra note 15, at 214–215, acknowledged that the right of hot pursuit
is recognized under customary international law.
113. Statement of U.S. representative to the UN Security Council, 9 February 1990, UN Doc.
S/PV.2907 (9 February 1990) 26–37, excerpted in Digest 1989–1990, supra note 32, at 454–455.
114. U.S. Department of State telegram to U.S. Embassy Muscat, 6 December 1989, excerpted
in Digest 1989–1990, supra note 32, at 468–469.
115. The M/V “Saiga” (No. 2) Case, supra note 6, at para. 155.
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116. Crawford, supra note 30, at 301.

117. Ibid., at 303.
118. Ibid., at 307.
119. Rothwell and Stephens, supra note 62, at 77. See also at 271, and Tanaka, supra note 11,
at 92.
120. Memorandum of Understanding for Cooperation Between the Ministry of Public Security
of Costa Rica and the United States Coast Guard Concerning Aeronautical and Maritime Search
and Rescue, San Jose, 3 July 2008: “In accordance with customary international law, solely for the
purpose of rendering emergency rescue-assistance to persons, vessels or aircraft in danger or distress,
when location is reasonably well known, SAR facilities of a Participant, may immediately enter
into or over the territory of the other Participant, with notification of such entry made as soon as
practicable,” available at www.state.gov/documents/organization/138833.pdf.
121. Crawford, supra note 30, at 321.
122. North Sea Continental Shelf Cases, supra note 14, at 39–40, para. 65.
123. Ibid., at 40, para. 65.
124. Douglas R. Burnett, Tara Davenport, and Robert C. Beckman, “Overview of the Interna-
tional Legal Regime Governing Submarine Cables,” in Submarine Cables: The Handbook of Law and
Policy, eds. D. R. Burnett, R. C. Beckman, and T.M. Davenport (Leiden: Martinus Nijhoff, 2014),
65.
125. Nicaragua v. Colombia, supra note 13, at 674, para. 139. See the earlier contrary views in
Churchill and Lowe, supra note 15, at 164; Brownlie, supra note 30, at 183; and Tanaka, supra note
11, at 67–68. The International Court in Qatar v. Bahrain, supra note 12, at 97, para. 185, said Article
121(2) “reflects customary international law.”
126. Tanaka, supra note 11, at 387, and see 382–383.
127. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, [2010] ICJ Rep.
14, 78, para. 193 (20 April), quoting Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, [1996] ICJ Rep. 241–242, para. 29.
128. The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, ITLOS sep. op.
Judge Wolfrum, p. 3 (3 December 2001).
129. Case concerning Land Reclamation by Singapore in and around the Straits of Johor
(Malaysia v. Singapore), Provisional Measures, ITLOS Order, para. 92 (8 October 2003), quoting
The MOX Plant Case, Order of 3 December 2001, para. 82. The duty to cooperate is stated in Article
197 of the LOS Convention.
130. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, [2010] ICJ Rep. 14,
83, para. 204 (20 April).
 Today’s Customary International Law of the Sea 259

131. Judge Laing in Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan),
Provisional Measures, ITLOS, sep. op. para. 16 and note 6 (27 August 1999); Judge Wolfrum in the
MOX Plant Case supra n. 2.
132. U.S. Letters of Submittal on the Basel Convention, S. Treaty Doc. 102–5, and the Con-
vention on Biological Diversity, S. Treaty Doc. 103–20, excerpted in Digest 1991–1999, supra note
33, at 1689 and 1765–1766.
133. Churchill and Lowe, supra note 15, at 369.
134. Ibid., at 355.
135. Ibid., at 351.
136. Ibid., at 352–353.
137. Tanaka, supra note 11, at 260–261.
138. Ibid., at 264 and 266.
139. Ibid., at 264.
140. Ibid., at 266.
141. ILA, “Final Report of the ILA Committee on Coastal State Jurisdiction Relating to Marine
Pollution,” Conclusion No. 2, Report of the Sixty-Ninth Conference, supra note 9, at 475 and 478–481.
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142. U.S. State Department telegram, 28 February 1989, excerpted in Digest 1989–1990, supra
note 32, at 478.
143. Churchill and Lowe, supra note 15, at 409.
144. See Nicaragua v. United States, supra note 15, at 97–98, paras. 184–186.

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