Historical Background

Law of the Sea

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International Law
• International law is the set of rules, norms, and standards generally recognized as
binding between nations
• Establishes normative guidelines and a common conceptual framework for states
across a broad range of domains, including war, diplomacy, trade, and human rights
• Aims to promote the practice of stable, consistent, and organized international
relations
• The sources, as listed under Statute of the ICJ article 38, include:
ø international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states
ø international custom, as evidence of a general practice accepted as law
ø the general principles of law recognized by civilized nations
ø judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law
• International Law, may also be reflected in international comity, the practices and
customs adopted by states to maintain good relations and mutual recognition, such
as saluting the flag of a foreign ship or enforcing a foreign legal judgment

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Mare Nostrum
‘Those who go down to the sea in ships, Who do business in great waters; They see the
works of Yahveh And his wonders in the high sea.’ -Psalm 107, verses 23-24

• The Prophet King Solomon had a merchant fleet 2500 years ago. In classical
law, the ocean was not territorial.
• Ancient Greeks saw the sea as an integrating factor of their homeland. Rome
was more successful in combining naval power with land power.
• From 30 BC to AD 117 the Roman Empire surrounded the Mediterranean Sea
& named it ‘Mare Nostrum’ (Our Sea) an inland sea of the Romans, although
there had been no bans on navigation.
• In the 17th century, former rules on sea use were compiled & spread through
Europe under the name of ‘Lex Rhodia’. Other compilations followed in
France, England, Scandinavia and the Netherlands.
• The best known and most influential of these early versions of the Law of the
Sea was the ‘Consolato del Mare’, written in Catalan in Barcelona towards the
end of the thirteenth century or at the beginning of the fourteenth.
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Mare Clausum
• During the Age of Discovery, between the 15th and 17th century, sailing that
had been mostly coastal became oceanic, seeking exclusive property and
exploration rights over lands discovered.
• The Kingdom of Portugal and the united
kingdoms of Castile and Aragon signed
the Treaty of Alcáçovas in 1479 and
the Treaty of Tordesillas in 1494 to avoid
hostilities over exploration rights.
• The papacy helped legitimize and
strengthen these claims, by the Papal Bull
Romanus Pontifex of 1455 prohibiting others to navigate the seas under the
Portuguese exclusive without permission of the king of Portugal.
• With the discovery of sea route to India and later the route of Manila the
concept of "Mare clausum" was realized.
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Mare Clausum
• This policy was refused by European nations like France, Holland and England,
who were then barred from expanding and trading, and engaged in
privateering and piracy of routes, products and colonies.
• In the 16th and 17th centuries, Spain considered the Pacific Ocean a Mare
Clausum – a sea closed to other naval powers.
• As the only known entrance from the Atlantic, the Strait of Magellan was at
times patrolled by fleets sent to prevent the entrance of non-Spanish ships.
• In the Pacific Ocean the Dutch threatened the Spanish Philippines.
• In the 1580s Spain attempted to settle and fortify the strait to deny entry to
foreign navigation.
• In 1493 Portugal claimed that Columbus’s voyage to the Americas is in
violation of 1479 Treaty of Alcáçovas which was protested by Spain
(Castile and Aragon).
• Eventually, a new Bull Inter Caetera was issued by Pope Alexander VI in favor of
Spain in 1493.
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1493 Papal Bull

Pope Alexander VI gave to Spain

all islands and mainlands west of
a line drawn from pole to pole
100 leagues west of the Azores . .

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1529 Treaty of Zaragoza

130°E

Spain sold the Moluccas to

Portugal in exchange for
recognition of Spanish rule
over Philippines.
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Mare Liberum
• In February 1603 the 1500-ton Portuguese Santa Catarina was seized by the
Dutch East India Company, which led to a public judicial hearing
• The representatives of the Company then called Hugo Grotius, a jurist of the
Dutch Republic, to draft a defence of the seizure
• In 1609 Grotius formulated a new principle that the sea was international
territory and all nations were free to use it for seafaring trade. One chapter of
his treatise was published in the form of the influential pamphlet, Mare
Liberum (The Free Sea)
• Hugo proposed that whatever can neither be enclosed nor seized will not be
considered property. Ocean therefore should be free for all. He further stated
that sea is inexhaustible and thus everybody has a right to use it.

Concept of freedom of the seas

• Liberty of the sea a key aspect in communication between peoples and nations
• No one state can monopolise control
• Written to justify Dutch claims in the east
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 The King’s Chambers (1604)
England being neutral in the
war between the United
Provinces & Spain, King James I
issued a proclamation setting
out limits around coast of
England within which warlike
acts were not allowed

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Mare Liberum to Mare Clausum & Cannon-shot Rule
• England, competing fiercely with the Dutch for domination of world trade,
opposed Grotius' ideas and claimed sovereignty over the waters around the
British Isles.
• Hugo’s argument was answered in 1631 by an English jurist, John Selden
(1584–1654), who wrote Mare Clausum, which upheld the doctrine that
waters contiguous to the coastline of a country should be solely under the
dominion of that country. Such arguments led eventually to the introduction
of territorial waters.
• Hugo’s Mare Liberum recognized the existence of a nation’s jurisdiction over the
coastal waters that could be effectively controlled from the land. But Selden’s
claim was that the sea was virtually as capable of appropriation as land territory.
• As conflicting claims grew out of the controversy, maritime states came to
moderate their demands and base their maritime claims on the principle
that it extended seawards from land.
• The extent to which a nation could control its coastal waters was largely based
on the reach of its cannons on the shore. This became universally adopted and
developed into the 3 nautical mile limit or Cannon-shot Rule.
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Cannon-shot rule (1610-1911)
• Dutch challenge to British fishing
• Widely applied throughout 17, 18 and 19th centuries
• Artillery range:
• 1700 1M
• 1800 2M
• 1815 3M
• 1910 12M
• By the end of the 19th century the general rule was that fisheries
jurisdiction was limited to the 3M cannon-shot rule – or the
territorial sea.

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Line of sight rule
• Widely applied in NW Europe
• Incorporated into several treaties
• Claims ranged between 3 miles to 50 miles
• Most commonly associated with claims to 3 miles
• 3m miles limit was paramount in early 20th Century
• Extended to cover fisheries

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 Hawaii: waters between islands (1854)
Kauai

50M
Oahu

Maui

On May 16, 1854, State Neutrality of the Hawaiian Kingdom was Hawaii
proclaimed by His Majesty King Kamehameha III. The 1854 Proclamation
of Hawaiian neutrality, stated:
"...that Our neutrality is to be respected by all Belligerents, to the full extent of Our Jurisdiction,
which by Our fundamental laws is to the distance of one marine league (three miles), surrounding
each of Our Islands of Hawaii, Maui, Kahoolawe, Lanai, Molokai, Oahu, Kauai and Niihau,
commencing at low water mark on each of the respective coasts, of said Islands, and includes all the
channels passing between and dividing said Islands, from Island to Island..." 13
Developments in the 20th Century
Hague Codification (1930)

• On 22 September 1924 the General Assembly of the League of Nations passed

a resolution providing for the establishment of a 17-member committee for
formulating a comprehensive system of international law on all outstanding
issues. The committee's work led to the convening of the conference in 1930.
• As for the limits of the TS issue, majority of states declared for 3M limit
• 3M 19 votes
• 4M 4
• 6M 12
• Minority opposition to concept of Contiguous Zone
• Inability to reach agreement
• Article 1: “The territory of a state includes a belt of sea described in this
Convention as the Territorial Sea.”

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Truman Proclamation: Continental shelf (1945)

Areas of wide
continental shelf
Water depth ca
200m

Natural resources of the subsoil and seabed of the continental shelf

below the high seas but contiguous to the coasts of the United States
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Chile-Ecuador-Peru: The Maritime Zone (1952)

Ecuador

Peru

Easter Is

Chile

According to the 1952 Declaration, ‘the

Governments of Chile, Ecuador and Peru proclaim
as a norm of their international maritime policy
that they each possess exclusive sovereignty and
jurisdiction over the sea along the coasts of their
respective countries up to a minimum distance of
200 nautical miles from these coasts
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Prelude to UNCLOS I
• The 1930 Hague Conference was held under the auspices of the League of
Nations to Codify International Law.
• This Conference dealt with the territorial waters. Although not agreeing on
the breadth of the territorial sea, it could present in its report 13 draft
articles setting out a measure of agreement on many aspects of this subject.
These articles would become the basis of further work.
• At its first session, in 1949, the International Law Commission (ILC) selected
the territorial waters and the high seas as topics for codification.
• These topics were considered by the ILC at its 2nd to 8th sessions, from 1950
to 1956 respectively.
• Final drafts with regard to the continental shelf, fisheries and the
contiguous zone were submitted by the Commission to the General Assembly
at its 5th session, in 1953.
• In 1956, the Commission adopted its final report on the territorial sea, and
all the draft articles concerning the law of the sea were included in a single
systematic body as to constitute a final draft on the law of the sea.

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UNCLOS I
• Following the discussion of the ILC’s report, the General Assembly adopted
resolution 1105 (XI) of 21 February 1957, by which it decided to convene the
1st UN Conference on the Law of the Sea in Geneva from 24 February to 27
April of 1958 where eighty-six states participated.
• Four separate conventions were adopted by the Conference on 29 April 1958
(the 1st Conference or UNCLOS I):
√ Convention on the Territorial Sea & the Contiguous Zone (entered into
force on 10/09/1964);
√ Convention on the High Seas (entered into force on 30/09/1962);
√ Convention on Fishing and Conservation of the Living Resources of the
High Seas (entered into force on 20/03/1966),
√ Convention on the Continental Shelf (entered into force on 10/06/1964).
• In addition, an Optional Protocol of Signature Concerning the Compulsory
Settlement of Disputes was adopted (entered into force on 30/09/1962).
• The issue of breadth of the Territorial wasn’t resolved.

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UNCLOS II
• The 1st Conference also adopted resolutions on Nuclear tests on the high
seas, Pollution of the high seas by radio-active materials, International
fishery conservation conventions, Cooperation in conservation measures,
Humane killing of marine life, Special situations relating to coastal
fisheries, Historic waters, Convening of a 2nd UN Conference on the Law of
the Sea, etc.
• Subsequent to the adoption of the UNCLOS I 1958, the General Assembly
requested the Secretary-General to convene a 2nd UN Conference on the
Law of the Sea to consider the topics of the breadth of the territorial sea
and fishery limits.
• The Conference was held from 17 March to 26 April 1960 and adopted two
resolutions in its Final Act (A/CONF.19/L.15).
• Substantive decisions on the topics of the breadth of the territorial sea and
fishery limits were deferred to a later stage.

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Formulation of UNCLOS III
• On 1 November 1967, The Ambassador of Malta, Arvid Pardo made an
electrifying speech before the General Assembly calling for international
regulations to ensure peace at sea, prevent further pollution and protect
ocean resources. He proposed that the seabed constitutes part of the
common heritage of mankind, a phrase that appears in Article 136 of the
United Nations Convention on the Law of the Sea, and asked that some of
the sea's wealth be used to bankroll a fund that would help close the gap
between rich and poor nations.
• By resolution 2340 (XXII) of 18 December 1967, the Assembly established an
Ad Hoc Committee to Study the Peaceful Uses of the Sea-Bed and the
Ocean Floor beyond the Limits of National Jurisdiction, consisting of thirty-
six Member States.
• The Ad Hoc Committee presented its study to the General Assembly in 1968.
Having considered the committee report, the General Assembly decided to
establish a Committee on the Peaceful Uses of the Sea-Bed and the Ocean
Floor beyond the Limits of National Jurisdiction, consisting of forty-two
Member States.

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Formulation of UNCLOS III
• At its subsequent session, the General Assembly, requested the Secretary-
General to ascertain the views of Member States on the desirability of
convening, at an early date, a conference on the law of the sea (res. 2574 A
(XXIV) of 15 Dec 1969).
• The General Assembly decided in res. 2750 C (XXV) of 17 Dec 1970, to
convene a 3rd conference on the law of the sea in 1973.
• The 3rd conference on the law of the sea, in which 160 states participated,
held eleven sessions between 1973 and 1982. On 10 December 1982, the
Conference adopted the United Nations Convention on the Law of the Sea.
The Convention was open for signature, until 9 December 1984, first at the
Ministry of Foreign Affairs of Jamaica (from 10 December 1982), and then at
United Nations Headquarters in New York (from 1 July 1983).
• In an attempt to reduce the possibility of groups of nation-states dominating
the negotiations, the conference used a consensus process rather than a
majority vote.
• The resulting convention UNCLOS III came into force on 16 November 1994

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UNCLOS III - Contents
• Total 320 Articles arranged under 17 Parts
• Most of the parts are divided into number of sections
• Total 9 Annexes
• Some Annexes have own sets of articles sometime arranged
under number of sections

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Treaty Law
• UNCLOS III is essentially an international treaty
• The interpretation and application of treaties are governed by Vienna
Convention on the Law of Treaties 1969
• Article 31 sets out a general rule of interpretations
• Article 32 provides the supplementary means of interpretations
• The general rule as stated in article 31 reads “A treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose”
• Article 32 states, “Recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning resulting from
the application of article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable”
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