LAW OF SEA (MODULE-6)
Codification of the Law of the sea
After 1945, once the UN was set up, it was decided by the UN security council and
the Secretariat that there was a need to codify existing rules especially with regards to
the Law of the seas and to come out with a permanent solution vis-a-vis the maritime
territorial limit of any country.
With this view, the UNCLOS was passed, which codified the existing customary
rules, and it came into force in 1999, even though the agreement was signed in 1982.
Since 1945, almost all the countries of the World have replaced the “cannon-shot
rule” with 12 nautical miles rule under which an area of 12 nautical miles from a
country sea coast is presumed to be the exclusive maritime limit of one country, and
these rules are also acknowledged and accepted under the UNCLOS rules and
regulations.
What is UNCLOS?
UNCLOS stands for the United Nations Convention for the Law of the Sea. It is also
known as the Law of the Sea. It is an international agreement or treaty which
establishes rules and guidelines for using the world’s oceans and seas, so as to use and
conserve marine resources and to secure the preservation and protection of all the
living beings of the sea. The treaty was signed on 10 December 1982 in Montego
Bay, Jamaica, as a result of the United Nations Conference on the Law of the Sea,
which took place from 1973 to 1982, and came into force in 1994.
What is the role of this convention?
The convention defines several maritime zones. Namely the baseline, the territorial
waters, the contiguous zone, the exclusive economic zone, the continental shelf, the
International seabed area.The exclusive economic zone is international water, which
can be accessed and used by each country for economic purposes. It is currently the
dominant law of the sea.
There is no limit or boundary set for commercial or marine business in these
International waters.
History and prof.grotius view
Initially,navigation on the high seas was open to everybody as were also fisheries ,bit
in the 15&16 centuries the periods of great maritime discovery by European
navigators- claims were laid by the powerful maritime states to the exercise of
sovereignty, indistinguishable from ownership, over specific portions of the open sea.
For example, Portugal claimed maritime sovereignty over the whole of the Indian
Ocean and a very great proportion of the Atlantic, Spain arrogated rights to herself
over the Pacific and the Gulf of Mexico, and even Great Britain laid claim to the
Narrow Seas and the North Sea.
Grotius was one of the first strenuously to attack these extensive claims to
sovereignty. His objections were based predominantly upon two grounds:
1. No ocean can be the property of a nation because it is impossible for any nation
effectively to take it into possession by occupation.
2. Nature does not give a right to anybody to appropriate things that may be used by
everybody and are exhaustible - in other words, the open sea is a res gentium or res
extra commercium.
Freedom of high seas
In opposition to the principle of maritime sovereignty, the principle of the 'freedom of
the high seas' (or 'freedom of the open sea') began to develop, in accordance with the
mutual and obvious interests of the maritime nations. It was appreciated that too
often, and to the great inconvenience of all states, conflicting claims were laid to the
same parts of the open sea. Furthermore, it came to be realised that any claims to
maritime sovereignty were of little practical value except in time of war when it was
useless to assert them without the backing of a powerful navy. The freedom of the
open sea was thus seen to correspond to the general interests of all states, particularly
as regards freedom of intercourse between nations.
Perhaps, the more correct expression was 'freedoms', rather than 'freedom' of the high
seas, because apart from the unrestricted liberties as to navigation and fisheries, the
sea might be freely used for other purposes by all states, eg, scientific research. In
more modern times, the freedoms came to include the 'freedom of immersion' (eg, the
laying of submarine cables and of oil pipelines), and the free right of overflight for all
aircraft. Nonetheless, these freedoms never warranted a state of unregulated maritime
lawlessness, and certain rules for the exercise of jurisdiction over vessels at sea
became essential in order to avoid conditions of anarchy.
1. Lotus Case (France v. Turkey, 1927)
- Facts: In 1926, a collision occurred on the high seas between a French vessel, S.S.
Lotus, and a Turkish vessel, Bozkourt, resulting in the sinking of the Turkish vessel
and the death of several Turkish nationals. Turkey later arrested the French officer on
duty, claiming jurisdiction, which France contested, asserting that only France had
jurisdiction over its own nationals on the high seas.
- Issues: Whether Turkey could exercise jurisdiction over a foreign national for
actions on the high seas and whether this would infringe the principle of freedom of
the high seas.
- Relation to Public International Law: This case tested the limits of jurisdiction on
the high seas and examined states' rights and obligations under international law. The
court looked at customary practices and the lack of an explicit prohibition against
Turkey's jurisdiction in cases of high seas collisions involving its nationals.
- Held: The Permanent Court of International Justice held that Turkey’s exercise of
jurisdiction did not violate international law, as there was no rule prohibiting it. States
could exercise concurrent jurisdiction on the high seas in certain cases.
2. The Corfu Channel Case (United Kingdom v. Albania, 1949)
- Facts: British warships navigating the Corfu Channel, an international strait, struck
mines, resulting in casualties. The UK alleged that Albania either laid the mines or
failed to notify ships of their presence.
- Issues: Whether Albania violated international law by failing to inform others of the
mines in the high seas or the international strait and whether this hindered the freedom
of navigation.
- Relation to Public International Law: This case highlighted the right of innocent
passage and the duty of coastal states to ensure that navigation through straits is not
hindered.
- Held: The ICJ ruled in favor of the UK, finding Albania responsible for not
informing ships of the dangerous mines. It emphasized that innocent passage should
not be obstructed.
- Contribution: This case reinforced the principle of innocent passage on the high seas
and through international straits, strengthening norms around freedom of navigation
and safe passage in maritime law
3. North Sea Continental Shelf Cases (Germany v. Denmark, Germany v.
Netherlands, 1969)
- Facts: Germany, Denmark, and the Netherlands disputed how to delimit the
continental shelf in the North Sea. Denmark and the Netherlands argued for an
equidistance principle, while Germany sought a delimitation based on equitable
principles due to its limited coast.
- Issues: Whether states had an obligation to use the equidistance principle when
delimiting the continental shelf on the high seas.
- Relation to Public International Law: The case examined how states should exercise
rights over continental shelves extending into the high seas and the extent to which
they can claim these rights.
- Held: The ICJ held that there was no binding rule to use the equidistance method,
emphasizing equity in maritime delimitation and advocating for equitable principles
based on natural prolongation.
- Contribution: This case contributed to developing principles around maritime
delimitation, equity in resource-sharing, and coastal state rights over adjacent
continental shelves.
4.Fisheries Jurisdiction Case (United Kingdom v. Iceland, 1974)
- Facts: Iceland unilaterally extended its exclusive fisheries zone to 50 nautical miles
in 1972, which the United Kingdom argued violated international law. The UK
claimed that Iceland’s actions restricted other states' freedom of the high seas,
impacting their fishing rights.
- Issues: Whether Iceland had the right to extend its fisheries jurisdiction unilaterally,
conflicting with other states’ freedom on the high seas, specifically the freedom to
fish.
- Relation to Public International Law: This case examined how high seas freedoms,
particularly fishing, were balanced against the rights of coastal states to protect
marine resources close to their shores.
- Held: The International Court of Justice (ICJ) ruled that Iceland's unilateral
extension was inconsistent with international law, as it infringed on the traditional
freedom of the high seas.
- Contribution: This case highlighted the importance of balancing high seas freedoms
with coastal states' rights, contributing to the development of Exclusive Economic
Zones (EEZs) under the United Nations Convention on the Law of the Sea
(UNCLOS) in 1982.
Territorial waters
Territorial waters, or a territorial sea, were defined by the 1982 United Nations
Convention on the Law of Sea in Article 1. "The sovereignty of a State extends,
beyond its land territory and its internal waters, to a belt of sea adjacent to its coast,
described as the territorial sea." It is a belt of coastal waters extending at most 12
nautical miles (22.2 km) from the baseline which is normally measured from the low-
water line along the coast as marked on large-scale charts officially recognized by the
coastal state.
If this would overlap with another state's territorial sea, the border is taken as the
median point between the states' baselines, unless the states in question agree
otherwise. A state can also choose to claim a smaller territorial sea.
The territorial sea is regarded as the sovereign territory of the state, although foreign
ships (both military and civilian) are allowed innocent passage through it; this
sovereignty also extends to the airspace over and seabed below. Adjustment of these
boundaries is called, in international law, maritime delimitation. The coastal state is
free to set laws, regulate use, and use any resource. Vessels are given the right of
innocent passage through any territorial waters, with strategic straits allowing the
passage of military craft as transit passage.
A coastal state exercises sovereignty over its territorial waters, which includes, in
particular, the following:
(1) An exclusive right to fish and to exploit the resources of the seabed and subsoil of
the seabed and exclusive use of the airspace above the territorial sea.
(2) The exclusive right to use the territorial waters to transport people and goods from
one part of the state to another.
(3) The right to enact laws concerning navigation,immigration, customs dues, and
health, which bind all foreign ships.
(4) The right to ask a warship that ignores navigation regulations to leave the
territorial waters.
(5) Certain powers of arrest over merchant ships and people on board and jurisdiction
to try crimes committed on board such ships within the territorial waters.
(6) The right to exclude fighting in the territorial waters during a war in which the
coastal state is
Innocent passage
One of the fundamental tenets in the international law of the sea is that all ships of all
Sates enjoy the right of innocent passage through the territorial sea of other States.
The LOS Convention provide for the meaning of "passage" (Article 18), 2 and of
"innocent passage" (Article 19), and lists those activities not innocent or "prejudicial
to the peace, good order or security of the coastal State" (Article 19(2)
.
Case law : South china sea dispute
In 1988, the Imperial Chinese navy with the support of the Chinese air force
repeatedly intruded into the territory of water of the Philippines and started the
construction of artificial islands called the Spratly and Johnson group of islands.
In 2015, the Philippino government approached the PCA (Permanent Court of
Arbitration) to resolve the South China Sea dispute, where the Chinese government
did not appear before the PCA. The PCA categorically held that (nine-dash line)
theory of China was grossly inaccurate, construction of Spratly and Johnson islands
were illegal, China had violated almost all its treaty and obligations, which are
coming under UNCLOS and violation of Customary International Law and more
specifically in Article 2(4) of the UN Charter.
1. Corfu Channel Case (United Kingdom v. Albania), 1949
- Facts: In 1946, British warships passed through the Corfu Channel, a narrow strait
between Albania and the Greek island of Corfu. While navigating the channel, the
ships hit mines, causing significant damage and casualties. The UK claimed Albania
was responsible for failing to notify them of the danger and took the matter to the
International Court of Justice (ICJ).
- Issues: The case centred around whether Albania could restrict innocent passage
through its territorial waters and whether Albania had a duty to warn other states of
the mines.
- Relation to Public International Law: This case was one of the earliest significant
applications of the concept of innocent passage and the obligations of states to ensure
safe passage in their territorial waters.
- Contribution: The ICJ clarified that a state has a duty to inform other states of
dangers in its territorial waters if they could endanger innocent passage. It emphasized
the right of innocent passage for foreign vessels, especially in international straits
used for navigation.
- Held: The ICJ held that Albania was responsible for the damage as it had a duty to
inform other states about the presence of mines. The Court also confirmed that
innocent passage through international straits was a customary right.
2. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v.
United States), 1986
- Facts: The case involved the United States' military and paramilitary activities in
Nicaragua, including naval blockades and mining of Nicaraguan harbour, which
Nicaragua argued infringed upon its rights and sovereignty.
- Issues: Whether the United States' actions in Nicaragua’s territorial waters violated
Nicaragua’s rights and whether those activities fell within the scope of innocent
passage.
- Relation to Public International Law: This case examined the limits of innocent
passage, particularly concerning military activities by foreign states in the territorial
waters of another state.
- Contribution: The ICJ emphasized that innocent passage must be peaceful and that
the right does not cover hostile or military actions. The case highlighted the
limitations on innocent passage when actions threaten the peace and security of the
coastal state.
- Held: The ICJ found that the United States' activities were not in line with
innocent passage, as they involved hostile acts that violated Nicaragua's sovereignty.
CONTIGUOUS ZONE
The contiguous zone is the part of the sea that is outside and adjacent to the territorial
waters of a coastal country. This is not the object of a subsidiary, but in this coastal
country, they can exercise certain jurisdictional rights. The concept of an adjacent
zone develops because countries cannot effectively protect all their interests because
of the limited interference on the territorial sea. The 1982 convention established the
concept of an exclusive economic zone (EEZ) which fully covers the contiguous
zones.
According to Article 24 of the 1982 Convention, in contiguous zone , the coastal State
may exercise the control necessary to:
(a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations
within its territory or territorial sea,
(b) Punish infringement of the above regulations committed within its territory or
territorial sea.
2. The contiguous zone may not extend beyond twelve miles from the baseline from
which the breadth of the territorial sea is measured.
CONTITENTAL SHELF
According to W.Friedman, the continental shelf can be defined as the zone around the
continent that extends from a low water line to depth and usually marked towards
greater depth. What is commonly referred to as a “continental shelf” is a sloping
platform that covers continents and islands? This is a submerged seabed that borders
continental landmass and is found as an extension or part of that land. It usually
extends to a depth of about 200 meters.
The coastal countries have limited sovereignty rights on the continental shelf to
explore and use “natural resources”, not sovereignty.
1) In the 1969 North Sea Continental Shelf Cases, the International Court of
Justice wrote: "The right of the coastal State to its continental shelf areas is based on
the sovereignty of the land domain of which the shelf area is the natural prolongation
into and under the sea."
2. Continental Shelf (Tunisia/Libya) Case, 1982
- Facts: Tunisia and Libya disputed the delimitation of their continental shelf in the
Mediterranean, as both states claimed overlapping areas rich in oil resources.
- Issues: The ICJ needed to determine appropriate methods for delimiting the
continental shelf in a semi-enclosed sea with unique geographical features.
- Relation to Public International Law: The case applied equitable principles of
delimitation, focusing on the geographic context and the principle of non-
encroachment.
- Contribution: The ICJ emphasized the relevance of equitable principles, natural
prolongation, and geographical considerations, advancing the principle of equitable
results over strict application of predefined rules.
- Held: The ICJ adopted an equitable solution, considering natural prolongation and
special geographical circumstances in the delimitation.
3. Libya v. Malta (Continental Shelf), 1985
- Facts: Libya and Malta disputed the delimitation of their continental shelf in the
central Mediterranean, with both claiming rights to resources in the overlapping area.
- Issues: The case revolved around the legal principles for delimiting the continental
shelf, particularly in areas where states’ coasts do not face each other directly.
- Relation to Public International Law: This case further refined the principles of
equitable maritime delimitation.
- Contribution: The ICJ emphasized the equidistance and proportionality principles,
further developing equitable delimitation standards and clarifying how natural
prolongation should be considered.
- Held: The ICJ ruled for an equitable boundary, emphasizing proportionality and
equidistance in the context of regional geography.
4. Aegean Sea Continental Shelf Case (Greece v. Turkey), 1978
- Facts: Greece brought a case against Turkey regarding disputed rights over the
continental shelf in the Aegean Sea, with both countries claiming potential rights to
resources.
- Issues: The ICJ had to determine jurisdiction over the dispute and clarify
principles for continental shelf delimitation in this region.
- Relation to Public International Law: The case underscored the importance of
peaceful dispute resolution in matters of continental shelf and maritime boundary
disputes.
- Contribution: This case highlighted the role of the ICJ in addressing jurisdictional
disputes and the necessity of bilateral negotiations when regional tensions are
involved.
- Held: The ICJ declined jurisdiction over the merits, but this case stressed the
importance of negotiation and mutual agreements in resolving maritime delimitation
disputes.
These cases have shaped international legal principles on the continental shelf,
reinforcing the importance of equitable delimitation and peaceful dispute resolution
under international law. They form the basis for many contemporary rules and
practices in maritime boundary cases.
Exclusive Economic Zone
An exclusive economic zone is a sea zone prescribed by UNCLOS, over which a
State has several rights regarding the exploration and use of marine resources
including energy production from water and wind. It stretches from the baseline, until
200 nautical miles (370.4 km) from its coast. In geographical terms, the EEZ may also
include the continental shelf.
The main difference between the territorial sea (12-mile rule) and the exclusive
economic zone is that while the territorial sea confers full sovereignty over the waters,
EEZ is merely a sovereign right which refers to the coastal State right below the
surface of the sea.
An example of an exclusive economic zone is the Bombay High, between 73 to 74
nautical miles of the Indian coast which is used for oil exploration by the Indian
government.
EEZs extend 200 nautical miles (370 KM) from the baseline
This includes Territorial Water and Contiguous Zone in it
The purpose of bringing in this zone is to avoid the heated clashes for fishing rights
and oil
1. Fisheries Jurisdiction Case (United Kingdom v. Iceland, 1974)
Facts:
Iceland extended its exclusive fishing rights from 12 nautical miles to 50 nautical
miles, impacting British fishing activities in these waters. The United Kingdom
challenged this extension, arguing Iceland lacked authority to unilaterally expand its
jurisdiction.
Issues:
- Legitimacy of unilateral extension of fishing jurisdiction.
- Conflicts over fishing rights and resource exploitation in high seas areas.
Relation to Public International Law:
The case dealt with the evolving concept of the EEZ before it was formally
established under the United Nations Convention on the Law of the Sea (UNCLOS).
Contribution to International Law:
The ICJ stressed that states should mutually agree on the scope of fishing rights, and
unilateral extensions could not be binding on others. This case influenced the later
establishment of the EEZ concept in UNCLOS.
Holding:
The ICJ ruled that Iceland's unilateral extension was not enforceable against the UK,
emphasizing the need for cooperation in managing fisheries and setting precedents for
EEZ principles.
2. Maritime Delimitation in the Gulf of Maine (Canada v. United States, 1984)
Facts:
A maritime boundary dispute arose between Canada and the United States over the
delimitation of the continental shelf and EEZ in the Gulf of Maine.
Issues:
- Criteria for determining EEZ boundaries in cases of overlapping claims.
- Application of equitable principles in maritime boundary delimitation.
Relation to Public International Law:
This case addressed how EEZ boundaries are drawn, particularly when neighboring
states’ claims overlap.
Contribution to International Law:
The case set guidelines for equitable delimitation of EEZs and continental shelves,
which influenced subsequent UNCLOS articles on boundary delimitation.
Holding:
The ICJ established a practical boundary using an equitable approach, emphasizing
that delimitation must be based on fairness, balancing geographic factors with state
interests.
Powers of the Coastal State
Sole right over exploitation rights over all natural resources
Powers of the other states
Navigation ,Overflight ,Laying of submarine pipes and cables not absolutely free
from conditions from the Coastal States.
High Seas
The high seas mean, all the parts which are not coming under EEZ, territory or inland
waters of a country. This rule was formulated by Grotius in his maxim on “Mare
Liberum” in 1609 and claimed that the sea could not be owned by anyone.
As a result, all States supported that ships can go and use freedom of navigation, fight,
fishing and building artificial islands etc. But, the command has been considerably
changed under the convention on the Law of the sea of 1982.
Article 87(2) of the convention lays down the limitation of the general nature on the
freedom of high seas by stating that the freedom of the high seas “shall be exercised
with due regard to the interests of other States in their exercise of the freedom of high
seas”. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) creates
a comprehensive command to govern the rights of nations in respect of the world’s
oceans. International Maritime Organization (IMO) is a specialized agency of the
United Nations responsible for improving maritime safety and preventing pollution
from ships.
FREEDOM OF SEA ; this concept was put forth by Hugo Grotius as early as 1609. It
did not become an accepted principle of international law, until the 19th century.
Freedom of the seas was ideologically the 19th-century freedoms, particularly laissez-
faire economic theory, and was vigorously pressed by the great maritime and
commercial powers, especially Great Britain.
Freedom of the high seas is now recognized to include freedom of navigation, fishing,
the laying of submarine cables and pipelines, and overflight of aircraft. 22 By the
second half of the 20th century, demands by some coastal states for increased security
and customs zones, for exclusive offshore-fishing rights and for conservation of
maritime resources including exploitation of resources, caused serious conflicts. The
first United Nations Conference on the Law of the Sea, meeting at Geneva in 1958,
sought to codify the law of the high seas but was unable to resolve many issues. A
second conference (Geneva, 1960) also failed to resolve this point; and a third
conference began in Caracas in 1973, later convening in Geneva and New York City
