THE LAW OF THE SEA

I. INTRODUCTION

It is considered that life itself arose from the oceans & the ocean has always been an important
source of food for the life it helped generate since time immemorable, it has also served trade
and commerce, adventure and discovery. Earlier primary functions of the sea were considered
to be medium of communication & reservoir of resources. But the 20th Century witnessed
increased ways of using sea & claim of juridical authority by states over their coastal regions
(sometimes beyond). Thus, functions of sea have undergone changes with the development in
Commerce, Technology & Military requirements of States.

In the beginning of 17th Century, Grotius propounded the principle of “Mare Liberum” i.e.
freedom of the Seas. Grotius insisted on the fact more firmly that land and sea were
incommensurable because the one can be appropriated and the other cannot.1 He endorsed the
idea of “The free Sea” & believed in non-regulation & Laissez faire of the sea except that of
territorial waters. This principle was eclipsed by developments in commerce & realisation of
inexhaustible uses of sea from the middle of 20th Century.

“The Law of the sea” is a branch of Public International Law by which States (Coastal & Land
Locked), and/or International Organisations regulate their relations in respect of rights & duties
with regard to use & utilization of the sea.

II. CODIFICATION OF ‘THE LAW OF THE SEA’

The principle of the freedom of seas got a serious setback when president Truman in 1945
proclaimed jurisdiction over the continental shelf. Many other nations also made a sweeping
claim to protect their economic & military interests. These developments stressed the urgency
for codification of the law in order to strive uniformity & resolve maritime conflicts among
nations. The matter was put on the agenda of the International Law Commission (ILC) in 1949.
On the basis of the draft prepared by the ILC in 1958, The first United Nations Conference on
the law of Sea (UNCLOS I) took place at Geneva, which adopted the following four
conventions:

i. Convention on the Territorial Sea & Contiguous Zone.

1
Hugo Grotius, The Free Sea, Edited by David Armitage, Liberty Fund, Inc. 2004, pg. XIX.
 ii. Convention on the High Seas.
iii. Convention on Fishing & Conservation of Living Resources.
iv. Convention on the Continental Shelf.

This Conference, however left the issue of breadth of the territorial sea & fishery zone
undecided, & the exploitability criterion on Continental Shelf was highly controversial &
totally unacceptable to the developing nations. The second UN conference (UNCLOS II) at
Geneva in 1960 failed to resolve the above issues.

United Nations Convention on the Law of the Sea, 1982 (UNCLOS III) is a result of third UN
Conference started in 1973. The treaty provides a graduated system of sovereignty in which
countries can assert complete ownership of water within 12 nautical miles of their coastline.
Each country can also claim an additional 200 nautical miles as an exclusive economic zone,
However, all areas outside of these regions are immune to any nation’s control. The treaty also
outlines general responsibilities towards limiting marine pollution and preserving marine
resources. Additionally, it catalysed the creation of regulating authorities, including the
International Tribunal, the Commission on the Limits of the Continental Shelf, and the
International Seabed Authority.

III. THE TERRITORIAL SEA

Right of Sovereignty over the portion of the sea which is adjacent to the coastlines of states, is
known as territorial sea. This right has tremendous strategic, economic & navigational
importance for coastal states. According to Grotius, the sovereignty over the maritime belt
should extend only to that area which could be controlled by artillery on the shore. Due to this
principle of protection, ‘Canon Shot’ rule becomes the law, the range did neither provide for
uniformity nor a universal acceptability. ‘The three-nautical miles rule’ came to be accepted
by several maritime powers like USA, UK etc.

However, the issue was much confused by the claims of many coastal states to exercise certain
jurisdictional rights for particular purposes: for example, fisheries, customs and immigration
controls. It was not until after the First World War that a clear distinction was made between
claims to enlarge the width of the territorial sea and claims over particular zones.2

The UNCLOS I did not include an article on this subject because of disagreements while
UNCLOS II failed to accept US & Canadian proposal of six-mile territorial sea. However,

2
Malcolm N. Shaw, International Law, Sixth Edition, Cambridge University Press 2008, pg. 568.
Article 3 of the UNCLOS III provided for a limit not exceeding 12-nautical miles from the
baselines.

The width of the territorial sea is defined from low-water mark/line around the coasts of the
State. This principle is settled customary international law & was also adopted in 1958
Convention3 & 1982 Convention.4 However, sometimes the deeply indented features of the
State’s coast or existence of numerous islands running parallel to coast or bays cutting coast
lines caused certain problems. Special rules in this regard have evolved with cases, like in The
Anglo-Norwegian fisheries Case,5 the Norwegians constructed a series of straight baselines
(skjaergaard) linking the outermost parts of the land running along the fringe of the islands.
This led to enclosing within its territorial limits parts of what would have been High Sea if
traditional method was applied. As a result, dispute involving certain disputes involving British
fishing boats arose, & UK challenged the legality of this method.

ICJ held that the Norwegian method is a result of geographic, historic & economic realities.
The normal method was not applicable in this case because it was to necessitate complex
geometrical constructions in view of the extreme indentations of the coastline & the existence
of the series of islands fringing the coast. Secondly, this method has been practiced by Norway
for many years & no objections was raised by other states, thus this method has been in
sufficient long practice & attitude of States imply that they did not consider it to be contrary to
International Law. Hence, from this case court provided certain criteria for determining the
acceptability of any such delimitations.

The Juridical Authority

The coastal state enjoys sovereign rights over its maritime belt & extensive jurisdictional
control, having regard to the relevant international law.6 The coastal state may exclude foreign
nationals & vessels from fishing within its territory & reserve the same for its own nationals.
Thus, the control due to custom & security lie extensively with the state but powers exercised
must be in consonance to international law.

The Right of Innocent Passage

3
United Nations Convention on the Law of the Sea, Apr. 29, 1958, 450 U.N.T.S. 169 (hereafter, UNCLOS I),
Art. 3
4
United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 (hereafter, UNCLOS
III), Art. 5.
5
United Kingdom v. Norway, ICJ Rep. (1951) 116.
6
Supra note 2, pg. 569
The fundamental restriction on the sovereignty of coastal states is the right of other nations to
innocent passage through territorial sea.7 The right of foreign merchant ships (as distinct from
warships) to pass unhindered through the territorial sea of a coast has long been an accepted
principle in customary international law.8 The doctrine reconciles the interest of the world
community on one hand & that of Coastal State on other. Article 149 states that the Coastal
state must not hamper innocent passage & must publicise of any danger to navigation in the
territorial sea of which it is aware of. Article 1710 states that foreign ships are also supposed to
comply with the laws of the coastal states.

Article 1911 developed the notion by providing for prejudicial passage i.e. threat or use of force,
weapons practice, fiscal, immigration or sanitary regulations etc. Article 2412 reiterates the
principle of Article 14 of 1958 Convention. Article 2113 lays down certain topics on which
coastal state can make laws to ensure innocent passage:

a. Safety of navigation & regulating maritime traffic

b. Protection of navigational aids & facilities
c. Conservation of living resources of the sea
d. Marine scientific research, preservation of marine environment etc.

When the passage is not innocent Coastal States can take steps to prevent breach of sovereignty.
Passing of warships is not considered innocent, thus, it is considered to be disturbance to
national peace. In the Corfu Channel Case,14 ICJ opined that States in time of peace have a
right to send their warships through straits used for international navigation between two parts
of the high seas without the previous authorisation of a coastal state, provided that the passage
is innocent.

IV. CONTIGUOUS ZONE

The part of sea which is beyond & adjacent to territorial waters of the coastal state is known as
Contiguous Zone. The Coastal state does not exercise sovereignty over this part but such
restricted jurisdiction zones have been established or asserted for a number of reasons: for

7
UNCLOS III, Art. 2.
8
Supra note 2, pg. 570
9
Convention on the territorial sea & Contiguous zone, 1958, Art. 14.
10
Id, Art. 17.
11
UNCLOS III, Art. 19.
12
Id., Art. 24.
13
Id., Art. 21.
14
United Kingdom v. Albania, ICJ Rep. (1949) 4.
instance, to prevent infringement of customs, immigration or sanitary laws of the coastal state,
or to conserve fishing stocks in a particular area, or to enable the coastal state to have exclusive
or principal rights to the resources of the proclaimed zone.15

The limit of Contiguous zone was 12 nautical miles from the baselines from which the breadth
of the territorial sea is measured; thus, it was meaningless to states which have already claimed
the territorial sea upto 12 nautical miles. This limit was extended by Article 3316, by stating
that it may not extend beyond twenty-four nautical miles from the baseline. Thus, it is 12
nautical miles beyond the territorial sea.

V. THE EXCLUSIVE ECONOMIC ZONE (EEZ)

It marks a compromise between those states seeking a 200-mile territorial sea and those
wishing a more restricted system of coastal state power.17 The 1958 Geneva Convention on the
Territorial Sea did not reach agreement on the creation of fishing zones and article 24 of the
Convention does not give exclusive fishing rights in the contiguous zone. The European
Fisheries Convention, 1964 was first attempt to reconcile the interests of the coastal state with
those of other states who could prove customary fishing operations in the relevant area. The
debate was finally over when 1982 Convention explicitly provided for it. Article 55 provides
that EEZ shall not extend beyond 200 nautical miles from the baseline from which the breadth
of territorial sea is measured.

EEZ is an intermediate area between high seas & the territorial seas & can be called sui generis,
as it does not fit in either territorial sea, high sea or contiguous zone. In the Fisheries
Jurisdiction case,18 ICJ stated that the concept of exclusive fishing zone has gained status of
customary law especially after the 1958 Convention, but the question of validity of zone
beyond 12 nautical miles was not answered, hence, it was left open for interpretation based on
facts & degree of recognition by other states. Further, In the Libyan Arab Malta Case,19 the
existence of EEZ as a rule of customary law was firmly established.

The 1982 Convention tries to strike balance between the rights, jurisdiction & duties of Coastal
States, and that of other States. Article 5620 lays down that the Coastal State has sovereign

15
Supra note 2, pg. 578
16
UNCLOS III, Art. 33.
17
Supra note 2, Pg. no. 580
18
United Kingdom v. Iceland, ICJ Rep. (1974) 175.
19
Libya v. Malta, ICJ Rep. (1985) 13.
20
UNCLOS III, Art. 56.
rights for the purpose of exploring and exploiting, conserving and managing the natural
resources, whether living or non-living, & jurisdiction with regard to the architecture and use
of artificial islands, installations and structures, marine scientific research & the protection and
preservation of the marine environment. Similarly, Article 58 lays down rights & duties of
other States by providing them freedom of navigation, overflight, laying pipelines & submarine
cables etc subject to lawful uses & regard to laws of Coastal States.

VI. CONTINENTAL SHELF

The continental shelf is referred to the ledges that project from the continental landmass into
the seas and which are covered with only a relatively shallow layer of water (some 150–200
metres) and which eventually fall away into the ocean depths (some thousands of metres
deep).21 It is rich in oil, natural gas resources & is habitat for extensive fisheries thus, this led
to exploitation by Coastal States. The 1958 Convention, did not provide for definition but laid
down two alternative criterions for defining the continental Shelf. These were depth of the sea
& exploitation criteria. The former extends to the depth of 200 metres of the sea while later
was based on the exploitable capacity of resources.

This unsettled provision caused confusion & led to exploitation beyond 200 metres by the
technologically advanced nations. Thus, giving rise to conflicts. In the North Sea Continental
Shelf Case,22 ICJ held that the basis of title to continental shelf is geographical criterion & not
effective control or occupation. The right under the sea is an extension of right over land for
the purpose of exploring the seabed and exploiting its natural resources.

The UNCLOS III clarifies the extent of continental shelf, it states that the continental shelf
comprises of seabed & subsoil of the submarine area upto the outer edge of continental margin
or to a distance of 200 nautical miles whichever is more.23

The area of Continental shelf cannot be appropriated by the States & therefore cannot exercise
sovereignty over it but it may exercise sovereign rights over it for the purpose of exploring it
& exploiting its natural resources.24 Article 8225 lays down liability of payments and
contributions upon the States which exploit the continental shelf beyond 200 nautical miles for
non-living resources. These rights of Coastal States do not affect the legal status of other States

21
Supra note 2, pg. 584.
22
Germany v. Denmark, ICJ Rep. (1969) 3.
23
UNCLOS III, Art. 76(1).
24
Id., Article 77 r. w. Art. 81.
25
Id., Art. 82.
over the suprajacent waters or the air space above those waters provided they do not engage in
any unjustifiable interference with navigation & other rights of State.

VII. THE HIGH SEAS

That part of the sea which is not included in the territorial waters & are beyond the national
jurisdiction. The high seas as defined in Article 126 is the sea that is not included in the territorial
sea or in the internal waters of a state. This reflected customary international law, although as
a result of developments the definition in Article 86 of the 1982 Convention includes, all parts
of the sea that are not included in the exclusive economic zone, in the territorial sea or in the
internal waters of a state, or in the archipelagic waters of an archipelagic state.27

The High Seas are free & a common heritage of mankind & may not be apportioned by any
one nation. It is not an absolute principle because it contains an inherent danger of abuse of
rights. This principle of ‘freedom of high seas’ is a highly recognized principle yet it is subject
to increasing international regulation because at present times it is also necessary to
accommodate the interests of the developing countries. The 1982 Convention lays down that
the High Seas shall be reserved for peaceful purposes.28 Article 87 also lays down certain
freedoms of the use of high seas like freedom of navigation, overflight, laying submarine cables
& pipelines, construction of artificial islands, fishing, scientific research etc.

The foundation of the maintenance of order on the high seas has rested upon the concept of the
nationality of the ship, and the consequent jurisdiction of the flag state over the ship. It is,
basically, the flag state that will enforce the rules and regulations not only of its own municipal
law but of international law as well. A ship without a flag will be deprived of many of the
benefits and rights available under the legal regime of the high seas.29

The basic principle concerning jurisdiction is that the flag State alone may exercise such rights
over the ship. This was discussed in detail in The Lotus Case,30 PCIJ held that “vessels on the
high sea are subject to no authority except that of the state whose flag they fly.” This exclusivity
is without exception, but Article 9131 stipulates that there must be a ‘genuine link’ between the
state & the ship.

26
Geneva Convention on the High Seas, 1958, Art. 1.
27
Supra note 2, pg. 609
28
UNCLOS III, Art. 88.
29
Supra note 2, pg. 611.
30
France v. Turkey, PCIJ (1927).
31
UNCLOS III, Art. 91.
The UN Conference on Conditions of Registration of Ships, held under the auspices of the UN
Conference on Trade and Development, was convened in July 1984 and an agreement was
signed in 1986.32 It provides for applicable laws on the ownership of vessel including national
participation as owner. Thus, establishing jurisdiction of the flag state. This rule of ‘Exclusive
Jurisdiction’ is subject to certain exceptions like Right to visit Foreign merchant vessel, right
to search & seizure on High Seas in case of Sea piracy, right to pursue & seize the foreign
vessel which has infringed the laws of coastal state (Hot Pursuit) etc.

VIII. DELIMITATION OF MARITIME ZONES

The problem of delimitation arises when two coastal states are situated opposite or adjacent to
each other. In case of delimitation of Territorial Sea, EEZ, Continental Shelf etc most widely
opted principle is that of “equidistance/special circumstances principle.” In cases like Qatar v.
Bahrain,33 Anglo-French Continental Shelf Arbitration Case,34 North Sea Continental Shelf
case35 the court reiterated this principle & its ambit. In the Gulf of Maine Case,36 the ICJ
emphasised the means of adopting this principle viz. firstly, agreement on delimitations
between the parties, & secondly, application of equitability criteria & use of practical methods
for ensuring geographic configuration of the concerned areas.

IX. INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (ITLOS)

An innovative & elaborative dispute settlement system is provided in the 1982 Convention. Its
decisions lead to a binding third party decision in one form or another & it automatically makes
each ratifying State a party to the dispute settlement provisions. Article 287 provides States
with the choice of means of dispute settlement. They are:

a. The ITLOS
b. The International Court of Justice
c. An Arbitral Tribunal
d. A Special Arbitral Tribunal

The jurisdiction comprises of all the disputes & all applications submitted to it for all matters
specifically provided. It has exclusive jurisdiction with respect to disputes relating to activities

32
Supra note 2, pg. 612.
33
ICJ Rep. (2001) 40.
34
United Kingdom v. France, (1977, 1978) 18 R.I.A.A. 3, 271.
35
Supra note 24.
36
Canada v. USA, ICJ (1984).
in International sea-bed area. The decisions are final & binding on the parties to the particular
dispute.

X. CONCLUSION

The Law of the Sea has primarily evolved from customs & treatise, & now with the availability
of comprehensive written International Laws & gap-filling adjudicatory pronouncements, it
seems that once unfathomable Sea now falls within the purview of control of Nations. But, the
continuous fight for the right of exploitation of its resources & means to exert power is
considerably shadowing the duty to protect its natural habitants & maritime environment. It
can be conclusively said that human greed is much vast than the Sea itself.