ABSTRACT

Sea is a large body of water that is surrounded by the land. It is a crucial part of human trade and
commerce, voyage, mineral extraction, power generation and is also considered as an essential source
of blue economy nowadays. International law of the sea is a law of maritime space that peacefully
settles the global disputes on maritime boundary between or among the States and defines various
jurisdictions of the maritime zones as well as the rights and obligations of the coastal States in these
zones, especially with regard to the conservation of marine environment and biodiversity. The key
objective of this piece of academic research is to demonstrate a brief overview of the international law
of the sea with a special emphasize on the sources and legal framework of this law. This study also
strives to focus the civil and criminal liability, jurisdictions, rights and obligations of the coastal states
with regard to the different maritime zones. Furthermore this study delineates the rules and extent of
using these maritime zones in the light of various treaty provisions on the international law of the sea
where different adjudicated cases are also presented along with a profound scrutiny upon their fact,
issues, judgment.

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 Development of Law of Sea as a concept under International Law

“It was the Law of the Sea, they said. Civilization ends at the waterline. Beyond that, we all enter
the food chain, and not always right at the top.” -Hunter S.Thompson

INTRODUCTION

International law of the sea is that part of public international law that regulates the rights and
obligations of States and other subjects of international law, regarding the use and utilization of the
seas. It is distinguished from the private maritime law that regulates the rights and obligations of
private persons with regard to maritime matters, e.g., the carriage of goods and maritime insurance.
As pointed out by McDougal and Burke,1 “The historic function of the law of sea has now been
recognized as that of protecting and balancing the common interests, inclusive and exclusive of all
peoples in the use of employment of the oceans, while rejecting all egocentric assertions of special
interest in contravention of general community interest.” The classical law of the sea divided the hydro
space into the territorial and high seas, endowing the former to the coastal state, and keeping the latter
free and open to states under the doctrine of “freedom of seas”. For more than three centuries, all the law
on and about the hydro space covering approximately 71.4% of earth’s surface could be summed up in
simple formula: ‘freedom of seas’

In the course of time, uses of the sea multiplied resulting in conflicts between the wider claims of
coastal States, seeking to protect their economic interests over large parts of the sea and attempts by
major maritime powers to maintain the status quo on the other. These claims controversies assumed
serious magnitude after Second World War. With the view to reconcile these claims and resolve
controversies, the two U.N. Conferences on the Law of Sea were held in Geneva in 1958 and 1960.

In the first conference i.e 1958 Geneva Conference on the Law of Sea, four conventions were adopted

1. Convention on Territorial Sea and Contiguous Zone2

2. Convention of High Seas3

3. Convention on Fishing and Conservation of Living Resources4

1 The Public Order of the Oceans, p.1; see also “Crisis in the Law of Sea”: Community Perspectives v. National Egoism, 67
2 See U.N Doc. A/CONF 13/L-52
3 See U.N. Doc A/CONF 13/L-53
4 See U.N. Doc A/CONF 13/L-54

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4. Convention on Continental Shelf5

The second U.N. Conference on the Law of Sea was held at Geneva in 1960 to fix breadth of the
territorial sea but it failed. After the two U.N. Conferences on the Law of Sea, certain developments
emerged which considerably changed the situation. In the first place, a large number of new states,
mostly in Asia and Africa emerged. Secondly, rapid progress in science and technology made possible
commercial exploitation of mineral and other resources at technology made possible commercial
exploitation of mineral and other resources at greater depths of the seabed. One of the most valuable
resources in the bottom of the oceans are the thick black, potato shaped, mineral rich polymetallic
nodules, more popularly called manganese nodules. Though containing as many as 40 different metals,
the principal components of these nodules are manganese, nickel, copper and cobalt. Thirdly
unprecedented growth in population and demands for higher living standards have intensified
demands for food, fuel and other resources. Fourthly, the principal components of polymetallic
manganese nodules namely, nickel, copper, cobalt, and manganese are vital minerals for basic
industries. Fifthly while a few industrialized countries are the major consumers of these four metals,
about 20 countries, most developing are the major exporters of these minerals.

The above reasons inter alia made it imperative that the classical and traditional law of the sea must be
re-formulated so as to adopt it to the present times and circumstances and to serve the interests of all
states.

OBJECTIVE
1. To understand the concept of Law of Sea in detail with the help of various judicial
pronouncements.
2. To have a detailed knowledge about the prevalent laws/conventions which are governing
issues related to international waters.
3. To have a detailed knowledge about the “development in law of the sea” as a concept under
international law.
METHODOLOGY

5 See U.N. Doc A/CONF 13/L-55

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Having regard to the nature of the subject and in preparing the same, analytical method has been used.
It is entirely based on the secondary sources collected from text-books on International Law,
Journals Articles, Adjudicated Cases, and Websites etc. The collected sources have been presented
in past form in order to make the study more informative, analytical and useful for the readers. Also in
this study the contemporary adjudicated cases on international law of the sea are elaborately explained
so that the jurisdiction, rights and obligations of different subjects of international law can plainly be
understood.

Historic background of the Delimitation of Maritime Boundaries

Historically, international law and order on the seas and oceans of the world has been called upon to
provide regulation of the diverse interests of all nations.The law of the sea in one of the oldest
branches of international law, however, the most important source of codification and progressive
development of this law were the three United Nations Conferences held in 1958, 1960 and from 1973
to 1982 respectively. Over time, it has become accepted that coastal States are entitled to claim
sovereignty and jurisdiction over the adjacent sea and the seabed.The year 1930 witnessed the first
attempt to address the issue of codifying the law of the sea in the twentieth century. The Conference
was called to consider some of the problems of international maritime law and to codify maritime
boundaries delimitation rules. Fifty-one countries took part in the Conference. Problems relating to
the width and sovereignty of territorial waters, the necessity for regulation of use and exploitation of
natural resources of the World Ocean, defining adjacent zones, etc. were considered.

The preparatory Committee for the Hague Conference had requested the Conference participants to
consider what should be the situation with regard to the delimitation of the territorial sea in the case
where the opposite coasts of a strait belonged to two or more States: Many of the answers proposed
that the limit of the territorial water of each State should be: “midway between the two shores”6 that
sovereign rights should extend to the median line, 7 the centre line or midway. 8 As a result, the
Preparatory Committee for the Conference presented its draft proposal on opposite delimitation. This
draft did not gain the approval of the delegations. Consequently, the report of the Committee stated
that

6
Rosenne, S.,ed., League of Nations: Conference for the Codification of International Law. Volume II 1930, South Africa-. 273
(1975)
7 Ibid, Germany, Denmark, the Netherlands, Sweden
8 Ibid, Romania

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“it has been thought better not to draw up any rules regarding the drawing of the line of
demarcation between the respective territorial seas in straits lying within the territory of more than
one coastal State and of a width less than the breadth of the two belts of territorial sea.”9

The conference, nevertheless, gave a positive indication that the center or median line was the
appropriate line in the case of delimitation of territorial seas between opposite States.10 After the end
of the Second World War and with the establishment of the United Nations, the International Law
Commission was responsible for the codification of international law and for its development.
However, the initial studies of the International Law Commission into the complicated problems of
maritime delimitation, demonstrated that no single rule of law existed to regulate this new field of
international relations. The only obligation in force was an obligation, hardly a law, for States to
delimit their maritime jurisdiction over the territorial sea and the continental shelf through agreements
whereby all parties aimed for an equitable result. A law of maritime delimitation was very slow in
developing. There were, in the absence of rules of law, no substantive norms governing maritime
delimitation. An ex aequo et bono solution appeared to be the only alternative.11 The Commission
selected and appointed codification of the regime of the high seas as a priority topic at its first session in
1949. The Commission considered this topic at its second, third, fifth, seventh and eighth sessions, in 1950,
1951, 1953, 1955 and 1956, respectively. During its second session, in 1950, the Commission examined
the various questions falling within the scope of the general topic of the regime of the high seas, including
the contiguous zones, sedentary fisheries and the continental shelf and a draft Articles on the subjects of
the continental shelf; resources of the sea; sedentary fisheries; and contiguous zone were provisionally
adopted.12

“The Commission recommended that the Assembly adopt by resolution the part of the report covering
the draft Articles on the continental shelf. As the Commission had not yet adopted draft Articles on the
territorial sea, it recommended that the General Assembly take no action with regard to the draft Article
on the contiguous zone since the report covering the Article was already published.”13

9 Ibid, 1422
10 The history of the law of the sea. http://www.oceansatlas.org/unatlas/-ATLAS-/chapter14.html visited on 23rd Oct, 2019 at
6:13 P.M.
11 Prosper Weil, The law of maritime boundaries – reflections. Grotius Publications Limited, 1989.
12 Law of the Sea: Régime of the High Seas. http://www.un.org/law/ilc/
13 Ibid

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The Assembly deferred action and requested the Commission to submit its final report on the regime of the
high seas, the regime of territorial waters and all related problems in time for their consideration by the
Assembly at its eleventh session, in 1956.14

The First United Nations Conference on the Law of the Sea was held in the spring of 1958 in Geneva. The
work of the Commission facilitated the rapid conclusion of a highly successful Conference that produced
four keystone conventions: The Convention on the Territorial Sea and the Continuous Zone, The
Convention on the Continental Shelf, The Convention on the High Seas, and the Convention on Fishing
and Conservation of the Living Resources of the High Seas, as well as an Optional Protocol on the
Settlement of Disputes.15Even though, the First United Nations Conference of the Law of the Sea
(UNCLOS I) was able to produce four important legal instrument governing many aspects in the law of
the sea, but it did not offer a solution to two major issues: the width of the territorial sea, and the extent of
coastal State fisheries jurisdiction. These outstanding issues were discussed at the UN Second Conferences
on the Law of the Sea in Geneva in the spring 1960. The Conference was attended by 88 nations and
observers from 24 specialized UN institutions and Government agencies, but it failed to reach an
agreement on any of the proposals on the two questions before it. After the end of the Second Conference,
individual States independently began to expand the limits of their territorial waters. In December 1966,
Argentina became the first nation to declare its territorial waters jurisdictional limits to be 200 nautical
miles. Soon after, Brazil, Nicaragua, Panama, Peru, Salvador, Uruguay, Chile and Ecuador followed with
200-mile territorial waters claims of their own.16

This conference(UNCLOS II) on the law of the sea examined the problems which was not addressed by
the First Conference and issues like regimes of the high seas, the continental shelf, the territorial sea
(including the question of its breadth and the question of international straits and contiguous zone), fishing
and conservation of the living resources of the high seas (including the question of preferential rights of
coastal States), the preservation of the marine environment (including, inter alia, the prevention of
pollution) and scientific research.17UNCLOS III established by the General Assembly in 1968 and
entrusted to consider a new law of the sea, did not contribute in producing a draft capable of forming
the basis for multilateral diplomatic negotiations. At the final UNCLOS meeting in Montego Bay

14 Ibid
15
United Nations Convention on the Law of the Sea, 1982: a commentary. (The Hague: Martinus Nijhoff) . (The Hague:
Martinus Nijhoff) Volume II, Center for Oceans Law and Policy, University of Virginia School of Law
16The history of the law of the sea. http://www.oceansatlas.org/unatlas/-ATLAS-/chapter14.html visited on 23rd October 23,
2019 at 6:53 P.M.
17 Law of the Sea: Régime of the High Seas. http://www.un.org/law/ilc/ visited on 23rd October 23, 2019 at 7:14 P.M.

6
(Jamaica) on 10 December, 1982, the new Convention was immediately signed by representatives of
119 nations, including the USSR. Several developed nations, including the USA, Germany and Great
Britain, refused to sign the UNCLOS 1982 declaring that its key rules limit "freedom of action" by
private companies. And due to their dissatisfaction with the Convention’s deep sea-bed mining regime,
other countries like Turkey and Venezuela, for different reasons, did not sign. These reasons included
concerns over the provisions on settlement of ocean boundary disputes between opposite and adjacent
States.

International Tribunal for the Law of the Sea (ITLOS)

After the entry into force of the UN Convention on the Law of the Sea in 1994 strong efforts were
made for the establishment of an International Tribunal for the Law of the Sea (ITLOS). The ITLOS
is an intergovernmental organization created by the mandate of the Third UN Conference on the
Law of the Sea. The ITLOS was ultimately established in 1996 of which jurisdiction is not
compulsory and is optional or based on the consent of the States. The Tribunal consists of 21
members, elected from among the highest reputation of fairness and integrity and a recognized
competence in the field of the law of the sea18The Tribunal is situated in Germany, established a
global framework for law over “all ocean space, its uses and resources”. The Tribunal is open to all
the state parties to the 1982 UN Convention on the Law of the Sea.

UNCLOS: Various Jurisdictions of the Maritime Zones

The Base Line

18 Kapoor, S. K. (2008). International Law and Human Rights [A Nutshell] (12th ed.). India: Central Law Agency

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The coastal curve, from which the maritime area of a State is measured, is called baseline or low
water line and is of two types: a) normal baseline and b) straight baseline. Normal baseline is the
low-water mark line along the coast. It is a line hugging the coast. Article 12 (1) and (2) of the
1958 Convention contains provisions as to the delimitation of the baseline and states that, where the
coasts of two States are opposite or adjacent to each other, neither of the two States is entitled,
failing agreement between them to the contrary, to extend its territorial sea beyond the median line
every point of which is equidistant from the nearest points on the baselines from which the breadth
of the territorial seas of each of the two States is measured. The provisions of this paragraph shall
not apply where it is necessary by reason of historic title or other special circumstances to delimit
the territorial seas of the two States. The globally recognized principle as to the delimitation of
straight baseline is accepted in 1951 from the judgment of the famous Anglo-Norwegian Fisheries
Jurisdiction Case (1951) (England vs. Norway; ICJ). The case is mainly based on the principle
that, in some situations geographical circumstances permit the drawing of straight baseline in the
territorial sea. According to the Court the following reasons were considered to reach the decision:

1) In respect of delimitation of territorial waters with other States the ICJ observed that the act of
delimitation is always an international aspect, it cannot be dependent merely upon the will of coastal
State as expressed in the domestic law.
2) The Court held that the method of baselines employed by Norway was not contrary to the
international law;
This method consists of selecting appropriate points on the low water mark and drawing straight
lines between them. The decision of this case was subsequently accepted by the world community
and was incorporated in the 1958 Geneva Convention on Territorial Sea and Contiguous Zone.

The Inland Waters

The internal waters which exist from the baseline to the landward side area of the coastal State are
called the inland waters. Article 8 (1) of the 1982 Convention states that, waters on the landward
side of the baseline of the territorial sea form part of the internal waters of the State. Also article 5 (1)
of the 1958 Convention provides that, waters on the landward side of the baseline of the territorial
sea form part of the internal waters of the State.
 Civil and Criminal Jurisdiction of the Coastal State
The coastal State has its sovereign control and authority over its inland waters. The coastal state also
has the civil and criminal jurisdiction over it. If the law and order situations in the inland waters of
the coastal area are hampered, it shall definitely apply its criminal jurisdiction. In Rex vs. Anderson

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(1868)19 .In this case the accused was an American citizen, vessel was of Britain and the place of
committing crime was France. When a case is filed before the British Court, Anderson claimed and
argued that the crime was occurred in the French territorial water and for this reason Britain has no
jurisdiction to try the accused in this. The main issue before the Court was whether the British Court
has actually jurisdiction to try Anderson. Britain has jurisdiction to prosecute Anderson because the
crime was committed in the British ship, i.e. here the flag State is Britain. Again, the USA has also
Personal Jurisdiction to prosecute Anderson and France can also prosecute as it has the Territorial
Jurisdiction as the crime has hampered the security and peace of France.
In State vs. Yannopulous20 Yannopulous was a Greek national. He was one of the members of
crew of a ship belong to Cypress. The issue in this case was whether Italy had the jurisdiction to try
Yannopulous for the alleged offence i.e to carry marijuana? The Italian Court acquitted
Yannopulous with honor and set him free. In this case, the main reasoning before the court was as
follows:
1) Under the customary international law the coastal state has both the civil and criminal jurisdiction
in its internal matters. But if the offence is committed on board of the vessel, the flag state has the
jurisdiction, which is concurrent to that of the state whose national was the offender.
2) There is an exception to this general rule, which provides that if the offence disturbed the peace,
security and good order of the shore, the coastal state can try such offence on the ground of public
interest.
3) There is no evidence in this case that the act of Yannopulous disturbed the peace, security and
good order of the port. Though Yannopulous was found and arrested with drugs, his council argued
that he only possessed it and had no intention or motive to sell. It would be determined unilaterally
by the coastal state whether an act of an alien affects the peace, security and good order of that port
or that country.
 The Territorial Sea
The doctrine of territorial sea has traditionally been regarded as founded upon the principle that a
state’s sovereignty extended as far out to sea as a common shot would reach and the three-mile limit
has traditionally been represented as simply rough equivalent of the maximum range of a canon shot
in the 18th century. Actually the territorial sea is the closest maritime area adjacent to the land
territory of states. The territorial sea forms an undeniable part of the land territory to which it is
bound, so that a cession of land will automatically include any band of territorial waters.

19 Rex vs. Anderson (1868). 11 Cox Crim Cases 198 (Court of Criminal Appeal, England)
20 State vs. Yannopulous (Italy vs. Greece) 1974

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 Legal Position of the Coastal State
According to Article 1 of the 1958 Convention, the sovereignty of a state extends beyond its land
territory and internal waters, to a belt of sea adjacent to its coast. As per Article 2(1) of the 1982
UN Convention, the sovereignty of a coastal state extends, beyond its land territory and internal
waters and, in the case of an archipelagic state, its archipelagic waters, to an adjacent belt of sea,
described as the territorial sea. This sovereignty extends to the air space over the territorial sea as
well as to its bed and subsoil ( Article 2 (2), 1982 ). The sovereignty over the territorial sea is
exercised subject to this Convention and to other rules of international law ( Article 2 (3), 1982 ).
According to Article 3 of the 1982 Convention, every State has the right to establish the breadth of
its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined
in accordance with this Convention. The width of the territorial sea is defined from the low water
mark around the coasts of the state. In the area of territorial sea, the coastal state shall have its
exclusive jurisdiction. But the other states shall enjoy an exceptional right named as “right of
innocent passage”.

 Right of Innocent Passage: Explanation of the Idea

Article 17 of the 1982 Convention deals with the right of innocent passage of states and provides
that, subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of
innocent passage through the territorial sea. The 1982 Convention also contains provisions regarding
the meaning of ‘passage’ which in its Article 18 (1) states that, passage means navigation through
the territorial sea for the purpose of:
a) traversing that sea without entering internal waters or calling at a road stead or port facility
outside internal waters; or
b) proceeding to or from internal waters or a call at such road stead or port facility. Passage shall be
continuous and expeditious. Passage includes stopping and anchoring, but only in so far as the same
are incidental to ordinary navigation or are rendered necessary by force for the purpose of rendering
assistance to persons, ships or aircraft in danger or distress (Article 18 (2)).

10
Conversely Article 19 (1) provides the meaning of ‘innocent passage’ and accordingly states that,
passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal
State. Such passage shall take place in conformity with this Convention and with other rules of
international law. The right to innocent passage shall no more remain innocent if the peace and
security of the territorial sea of the coastal state is hampered by any act of the foreign vessel.

 Obligations of the Coastal State

For instance, the coastal state shall enact necessary legislation regarding the right to innocent
passage ( Article 21 (1) - (4), 1982 ). That is to say, the obligation to ensure the security of innocent
passage lies upon the coastal state (Article 22 (1)). Again, Article 25 deals with the rights of
protection of the coastal State which states in its sub article (1) that, the coastal State may take the
necessary steps in its territorial sea to prevent passage which is not innocent. The coastal State may,
without discrimination in form or in fact among foreign ships, suspend temporarily in specified
areas of its territorial sea, the innocent passage of foreign ships if such suspension is essential for the
protection of its security, including weapons exercises. Such suspension shall take effect only after
having been duly published. (Article 25 (3)).
 Coastal States Criminal Jurisdiction: Vessels in Innocent Passage
Article 27 deals with the provisions regarding the criminal jurisdiction on board a foreign ship and
provides in its sub-article (1) that, the criminal jurisdiction of the coastal State should not be
exercised on board a foreign ship passing through the territorial sea to arrest any person or to
conduct any investigation in connection with any crime committed on board the ship during its
passage, save only in the following cases: a) If the consequences of the crime extend to the coastal
State; b) If the crime is of a kind to disturb the peace of the country or the good order of the
territorial sea; c) If the assistance of the local authorities has been requested by the master of the ship
or by a diplomatic agent or consular officer of the flag State; or d) If such measures are necessary
for the suppression of illicit traffic in narcotic drugs or psychotropic substances. The above
provisions do not affect the right of the coastal State to take any steps authorized by its laws for the
purpose of an arrest on board a foreign ship passing through the territorial sea after leaving internal
waters ( Article 27 (2), 1982 ). In considering whether or in what manner an arrest should be made,
the local authorities shall have due regard to the interests of navigation (Article 27 (4)).

 Civil Jurisdiction of the of the Coastal State over the Vessels in Innocent Passage

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Article 28 of the 1982 Convention deals with the civil jurisdiction of the coastal state in relation to
foreign ships which states as follows:
1) The coastal State should not stop or divert a foreign ship passing through the territorial sea for the
purpose of exercising civil jurisdiction in relation to a person on board the ship.
2) The coastal State may not levy execution against or arrest the ship for the purpose of any civil
proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in
the course or for the purpose of its voyage through the waters of the coastal State.
3) Para (2) is without prejudice to the right of the coastal State, in accordance with its laws, to levy
execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the
territorial sea, or passing through the territorial sea after leaving internal waters.

 Provisions Regarding War Ships and Other Non-Trading Ships

Article 30 deals with the provisions regarding non-compliance by warships with the laws and
regulations of the coastal State and reveals that, if any warship does not comply with the laws and
regulations of the coastal State concerning passage through the territorial sea and disregards any
request for compliance therewith which is made to it, the coastal State may require it to leave the
territorial sea immediately. According to Article 31, the flag State shall bear global obligation for
any loss or damage to the coastal State resulting from the non-compliance by a warship or other
government ship operated for non-commercial purposes with the laws and regulations of the coastal
State concerning passage through the territorial sea or with the provisions of this Convention or
other rules of international law. The responsibility to keep the passage innocent is always of the
coastal state.
The Contiguous Zone
Contiguous zone is that part of the sea which is beyond and adjacent to the territorial sea of the
coastal state. Article 33 of the 1982 Convention deals with contiguous zone and reveals in its
sub-article (1) that, in a zone contiguous to its territorial sea, described as the contiguous zone, the
coastal State may exercise the control necessary to: a) prevent infringement of its customs, fiscal,
immigration or sanitary laws and regulations within its territory or territorial sea; b) punish
infringement of the above laws and regulations committed within its territory or territorial sea. The
contiguous zone may not extend beyond 24 nautical miles from the baselines from which the
breadth of the territorial sea is measured (Article 33 (2)). Again, Article 24 (1) of the 1958
Convention also states that, in a zone of the high seas contiguous to its territorial sea, the coastal
State may exercise the control necessary to: a) Prevent infringement of its customs, fiscal,

12
immigration or sanitary regulations within its territory or territorial sea; b) Punish infringement of
the above regulations committed within its territory or territorial sea.

 Jurisdiction of the Coastal State in the Contiguous Zone

If the coastal state notices that another state or person is violating its rights, or fleeing after
committing any crime, or hampering the law and order situations in the contiguous zone area of the
coastal state, then it has jurisdiction to prosecute and punish the perpetrator state. The relevant case
in this respect is the Re Martinez Case (1959) .21The Court has the reasoning in this case that it has
jurisdiction to punish the accused and also the Vigilance Zone was made by Italy in order to
maintain the security and good order in the coastal area and mainly to prevent smuggling in the
coastal area.

 Exclusive Economic Zone (EEZ) or Patrimonial Sea

Before discussing about the Exclusive Economic Zone (EEZ) or Patrimonial Sea, it is very much
pertinent to mention an important case on this topic which will properly clarify the matter. Here the
case is the Fisheries Jurisdiction22 Case (USA and Germany vs. Iceland; ICJ, 1974). In this case,
the core issue before the Court was, whether Iceland was entitled to the unilateral extension of its
economic zone 50 nautical miles beyond its territorial water? The court by 10 to 4 votes held that
Iceland was not entitled to declare unilaterally an exclusive fisheries zone of 50 nautical miles
beyond its territorial water. The governments of Iceland, the UK and West Germany were under an
obligation to negotiate an equitable solution among them. The decision further said that the
preferential rights of Iceland, the UK and West Germany should be taken into account in the
negotiation. The reasoning in this case was that, the ICJ first established the principle of
“preferential rights” over the particular regime of the sea. The Court held that, 90 percent foreign
currency of Iceland is earned from fishing. In fact, the total economy of Iceland depends on the
fishing. For this reason Iceland was given the preferential right over that particular zone. The Court
found that the unilateral declaration of 50 nautical miles Exclusive Economic Zone (EEZ) neither
legal nor illegal under the principle of international law.

 Clarification of the Concept of EEZ or Patrimonial Sea

21 Re Martinez Case (1959). (52 Cal.2d 808) Crim. No. 6343. In Bank. Oct. 30, 1959
22 Fisheries Jurisdiction Case (USA and Germany vs. Iceland; ICJ, 1974)

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The concept of Exclusive Economic Zone (EEZ) or Patrimonial Sea was for the first time
advocated by Kenya in the Asian-African Legal Consultative Committee at its Colombo Session
held January, 1971. The concept of Exclusive Economic Zone (EEZ) or Patrimonial Sea was for the
first time advocated by Kenya in the Asian-African Legal Consultative Committee at its Colombo
Session held January, 197123 Article 55 of the 1982 convention provides that, the EEZ is an area
beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part,
under which the rights and jurisdiction of the coastal State and the rights and freedoms of other
States are governed by the relevant provisions of this Convention. The EEZ is a belt of sea, adjacent
to the coast, extending up to 200 miles from the baselines of the territorial sea. Within this area, the
coastal state is given “sovereign rights” for the purpose of exploring and exploiting the living and
non-living natural resources of the sea.24Article 57 deals with the breadth of the exclusive economic
zone and states that the exclusive economic zone shall not extend beyond 200 nautical miles from
the baselines from which the breadth of the territorial sea is measured.

 Freedoms of the High Sea: Explanation of the Idea

Article 87 of the 1982 Convention two more freedoms were inserted. The freedoms of high seas
expressly enumerated in article 87 (1) of the Convention are following:
a) freedom of navigation;
b) freedom of over flight;
c) freedom to lay submarine cables and pipelines;
d) freedom to construct artificial islands and other installations permitted under international law;
e) freedom of fishing;
f) freedom of scientific research.
Article 87 (2) of the Convention states that, these freedoms shall be exercised by all States with due
regard for the interests of other States in their exercise of the freedom of the high seas, and also with
due regard for the rights under this Convention with respect to activities in the area. It is further
provided that, the high seas shall be reserved for peaceful purposes.25No State may lawfully purport
to subject any part of the high seas to its sovereignty.26Grotius, the father of international law was

23 Kapoor, S. K. (2008). International Law and Human Rights [A Nutshell] (12th ed.). India: Central Law Agency p.141
24 Dixon, M. (2005). Textbook on International Law. New York, NY: Oxford University Press p. 203
25 Article 88. UN Convention on the Law of the Sea, 1982.
26 Article 89. UN Convention on the Law of the Sea, 1982

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one of the first strenuously to attach the extensive claims to freedoms and sovereignty. In other
words, open sea is a res gentium or res extra commercium.

 Continental Shelf: Explanation of the Idea

The term “continental shelf” is usually meant that part of the continental border which is between
the shelf break and shoreline or, where there is no clear slope between the shoreline and the point
where the depth of the superjacent water is around between 100 to 200 meters27Continental shelf is a
geological expression referring to the ledges that project from the continental land mass into the seas
and which are covered with only a relatively shallow layer of water and which eventually fall away
into the ocean depths. It is an underwater landmass that extends from a continent, resulting in an
area of relatively shallow water known as a shelf sea and a region adjoining the coastline of a
continent, where the ocean is no more than a few hundred feet deep.
The legal concept of continental shelf came into attention since Truman Proclamation of 1945
wherein it was declared that the USA considered the resources of the shelf contiguous to the USA as
appurtenant to the US and subject to its jurisdiction and control 28Article 76 (1) of the 1982 UN
Convention defines “continental shelf” as follows:
“The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas
that extend beyond its territorial sea throughout the natural prolongation of its land territory to the
outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured where the outer edge of the continental margin
does not extend up to that distance”29
Where the continental margin extends beyond 200 miles, the Convention provides that the
continental shelf should not extend more than 350 nautical miles from the baselines or 100 nautical
miles from the 2500 meter depth. Again, the Convention on the Continental Shelf (1958) defined the
“continental shelf” in the following terms:
“The continental shelf is (a) the seabed and sub-soil of the submarine areas adjacent to the coast but
outside the territorial sea to a depth of 200 meters or ‘beyond that limit to where the depth of the

27 UN (2012). Commission on the Limits of the Continental Shelf (CLCS). Division for Ocean Affairs and the Law of the Sea, Office of
Legal Affairs, United Nations.
28 Kapoor, S. K. (2008). International Law and Human Rights [A Nutshell] (12th ed.). India: Central Law Agency. P.108
29 Article 76 (1). The UN Convention on the Law of the Sea, 1982

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superjacent waters admits of the exploration of the natural resources of the said areas’; (b) to the
seabed and sub-soil of similar submarine areas adjacent to the coast of island.”30
SOUTH CHINA SEA- UNDERTAKING THE DISPUTE AND
IMPLICATIONS
It is a dispute over territory and sovereignty over ocean areas, and the Paracels and the Spratlys –
two island chains claimed in whole or in part by a number of countries. At the Indian Ocean
Conference (IOC) in Maldives' Male, US Ambassador to South Korea attacked China for
illegally building artificial islands and militarising them in the South China Sea to which China
responded by saying that it has indisputable sovereignty over the Nansha Islands (Spratly
Islands) and the adjacent waters of the sea. Additionally, China rejected a UN-backed
international tribunal ruling and said that dispute of South China Sea is not up for negotiation to
the visiting Philippine President.South China Sea is an arm of western Pacific Ocean in Southeast
Asia.It is south of China, east & south of Vietnam, west of the Philippines and north of the
island of Borneo.Bordering states & territories (clockwise from north): the People’s Republic of
China, the Republic of China (Taiwan), the Philippines, Malaysia, Brunei, Indonesia,
Singapore and Vietnam.It is connected by Taiwan Strait with the East China Sea and by Luzon
Strait with the Philippine Sea.It contains numerous shoals, reefs, atolls and islands. The Paracel
Islands, the Spratly Islands and the Scarborough Shoal are the most important.China claims by
far the largest portion of territory – an area defined by the “nine-dash line” which stretches hundreds
of miles south and east from its most southerly province of Hainan. Vietnam hotly disputes China’s
historical account, saying China had never claimed sovereignty over the islands before the 1940s.
Vietnam says it has actively ruled over both the Paracels and the Spratlys since the 17th Century –
and has the documents to prove it. Philippines both the Philippines and China lay claim to the
Scarborough Shoal (known as Huangyan Island in China) – a little more than 100 miles (160km)
from the Philippines and 500 miles from China. Malaysia and Brunei also lay claim to territory in
the South China Sea that they say falls within their economic exclusion zones, as defined by
UNCLOS – the United Nations Convention on the Law of the Sea. Brunei does not claim any of the
disputed islands, but Malaysia claims a small number of islands in the Spratly.

30 Article 1. The Geneva Convention on the Continental Shelf, 1958

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Importance of South China Sea

China currently facing Malaccan Dilemma, dependent for its energy needs on West Asia. The Sea
Lanes of Communication from West Asia to China passes through several choke points such as
Malaccan Strait, Sunda Strait, Lombok Strait which can be blocked in exigency situations, proving
to be a great harm for China Part of China’s aims to project People’s Liberation Army Navy as
true blue water navy having extensive domination over Indian Ocean and Pacific Ocean. Asia
Pacific has emerged as the new focal point in the quest for one manship between USA and China.
China feels uncomfortable with USA’s Pivot to Asia policy and is working towards its aim of
emerging as a counterpoint to USA’s hegemony. Also control over huge reserves of natural
resources – oil (7 billion barrels) and gas (900trillion cubit feet) Rich fishing grounds, Major
transshipment route – becomes important in an era of economic globalization. In 2013, Phillipines
took China to a UN Tribunal under the auspices of UNCLOS to challenge China’s claims of
sovereignty over the portion of South China Sea enclosed by Nine Dash Line. The Permanent Court
of Arbitration gave its award rejecting China’s claims and the judgement and its implications need
to be understood in greater detail.

The Contention:

Charges by Phillipines on ground of sovereignty over South China sea and the issue of 9 dash line
declared by Kuomintang government of China in 1946. Also the activities of China in the islands
and reefs of South China Sea and the construction activity by China in the form of reclaiming reefs,
constructing airstrips etc

 The Ruling:

W.r.t Sovereignty

Permanent Court of Arbitration ruled that according to UNCLOS, any jurisdiction over ocean space
derives solely from jurisdiction over land i.e. one can have jurisdictions over territorial sea from
coast (12 nautical miles), continental shelf (200 nautical miles). Also when countries became a part
of UNCLOS, earlier historical claims had to be given up at the time of acceding to UNCLOS. This
negates any legal basis of Nine Dash Line.

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W.r.t Islands

One can not claim any territorial sea or EEZ on the basis of sovereignty over islands which are
uninhabited, can’t support human life or which submerges in High Tide. This is a rejection of
Chinese motivation in South China Sea of reclaiming islands.

W.r.t Construction Activities

The judgement served as an indictment on the conduct of China by saying that China violated the
spirit of UNCLOS through aggressive posturing in South China Sea.

 Impact of the judgement:

Even if China categorically rejects the award (which it has), the diplomatic fallout will be huge,
particularly for a country which is a permanent member of UNSC and claims to uphold international
law (remember China’s intransigence to India’s membership of NSG by bringing in the issue of
NPT).

Short Term impact:

1. Slightly tempered down rhetoric of China wrt countries of ASEAN with which it had
disputes over SCS. This is evident in the conciliatory tone of statement by Foreign
Minister of China exhorting countries to negotiate and reach a settlement.

2. Aura of invincibility that China had built around itself hit as a result of the
judgement.

3. This might lead to a slightly greater balancing in China’s relationship with Japan and
USA.

Long Term Impact – China has two options

1. Go for continued conciliatory approach.

2. Go for aggressive posturing in South China Sea – This includes enhancing naval
deployment, declaring Air Defence Identification Zone (like it did over East China
Sea), intensify construction activities in the region.

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This step, however, will create a dent in the “responsible power” tag that China covets. China is
going to soon host the G20 summit. In case it goes for this approach, it will undermine the
diplomatic outreach of China.

Moreover China is looking to implement OROB initiative, AIIB etc which will require greater tact
in dealing with such a contentious issue.

 Whether Sanctions can be applied on China:

1. Unlikely, as China currently is the powerhouse of world economy and a lot of

 Possible escape routes for China:

1. Bilateral dialogue

2. Joint management of fishing zones

3. Faster negotiation with ASEAN countries to come up with a “Code of Conduct for
activities in South China Sea” (India at ADMM+ meeting has supported this
initiative)

4. CBMs to avoid intransigent situation in SCS

 Impact on relations with other countries such as Japan, Vietnam etc:

These countries have already initiated a process of bolstering themselves against a marauding China
by enhancing their own military capabilities. Bolstering relations with other stakeholders in the
region. Eg India planning to sell Brahmos to Vietnam, Japan – US partnership, Malabar coast naval
exercise etc. This limits the effectiveness of aggressive posturing by China

 Impact on East China Sea:

USA has adopted an aggressive posturing in the region. US is not a signatory to UNCLOS. Thus it
deploys its Asia Pacific fleet within 3 nautical miles from Chinese coasts. These sort of activities
make China very jittery. East China Sea is potentially more volatile because of the presence of
erratic actors like North Korea. Japan’s “Proactive Pacifism” through an amendment of Article 6 of
its Constitution also makes China wary in East China Sea where it is involved in an equally bitter

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dispute with Japan over Senkaku/Diayou Islands. All these factors make East China Sea potentially
more volatile.

 Impact on India China Bilateral Relation

India has emerged as a moral winner in this entire episode. The world sees India as a moral,
responsible power as India had resolved its dispute with Bangladesh over territorial waters under the
auspices of UNCLOS.. It would provide greater leveraging power to India w.r.t negotiating with
China over membership to NSG. However, it is unlikely to cause a paradigm shift in India China
relations unless we bolster our own border security arrangements, continue on the path of reforms.
These steps would help us in becoming a “Credible Power” and also being seen as one by
international community.

CONCLUSION A Success Or Failure?

When countries first came together for the Third United Nations Conference on the Law of the Sea
in 1974, the developing countries were determined to play a pro-active role in formulating new and
comprehensive laws to manage oceanic resources. They were convinced that freedom of the seas
would have to be regulated in accordance wit and balanced against the needs of all nations to
safeguard their economic interests as well as their national security and sovereignty. The

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long-standing laissez faire policy with respect to the high seas had ceased to serve international
justice and was being exploited by few powerful countries to monopolise the marine resources.
UNCLOS tried to change this practice but did not succeed to a large extent.

Through the creation of high seas, and more importantly through the adoption of conflicting
concepts of mare liberum, sovereignty, and resource management, UNCLOS unwittingly has
allowed for the over-exploitation of migratory marine species on the high seas. The over
exploitation has focused on a few developed nations at the detriment of the majority of developing
nations. Attempts to regulate the migratory species through the creation of Regional Fisheries
Organizations (hereinafter RFOs) has led to conflict between notions of mare liberum, or freedom of
the high seas, and internationally accepted principles of sovereignty.

A better method for regulating migratory marine species has been shown through unilateral state
action in the form of trade embargos. Further, suggestions to redefine certain areas of the high seas
in an attempt to create strong management controls without destroying notions of mare liberum and
sovereignty have been suggested. One of these proposed solutions seems to focus on the power of
developed nations, and it is questionable whether developing nations will benefit from the protection
of resources on the high seas.

It should however, be kept in mind that UNCLOS has not entirely failed. Compared to the 44
countries and the 86 and 88 participants in the 1930, 1958 and 1960 Conferences, respectively,
UNCLOS III started with 137 participating countries in 1974 and then this number rose to 156 in
1976. Also, even during the third conference, with the large number of participants, there was a lot
of discord among the countries and yet credit should be given to the nations for evolving a largely
comprehensive law at the end of the conference. We have already discussed how a large number of
regulatory bodies were established under the aegis of UNCLOS such as those regulating the seabed,
and International Tribunal on the Law of the Sea, etc. Even though it is still not very well-defined,
UNCLOS also has tried to regulate and streamline scientific research. Furthermore, it has tried
largely to lay down provisions for protection of environment and marine resources.

Therefore, if one were to make a final judgment on the success or failure of the UNCLOS after three
decades of its existence, one would have to say that the answer would be midway between success
and failure. There is no hard and fast judgment that one can make on the achievement of the
Convention, as we have seen that certain negatives as well as positives have both been thrown in
due course of this paper. Professor Vezijl, a noted scholar who was present at the 1958 Conference

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can be quoted to describe the UNCLOS after three decades to be “as a whole, it has been a success”.
As for the failures of the Convention, one can only hope that the shortcomings and the lacunae
existent in the UNCLOS can be amended and steps can be taken to improve upon the provisions
which fall short on meeting their desired goals. One will truly see a just and fair regulation of the
marine resources and will be able to take adequate measures to save our precious oceans and all the
resources it had to offer.

References

1. International law and Human Rights by Sk Kapoor

2. Malcom n Shaw

3. Academia.com

4. Scribid.com

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