Law of the Sea, From Grotius to the International Tribunal

for the Law of the Sea

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Law of the Sea, From Grotius
to the International Tribunal
for the Law of the Sea
Liber Amicorum Judge Hugo Caminos

Edited by

Lilian del Castillo

Honorary Board of Editors

Marcelo G. Kohen
Francisco Orrego Vicuña
Bernard H. Oxman
Tullio Treves
Rüdiger Wolfrum

LEIDEN | BOSTON

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Library of Congress Cataloging-in-Publication Data

Law of the sea : from Grotius to the International Tribunal for the Law of the Sea : liber amicorum Judge Hugo
Caminos / Edited by Lilian del Castillo.
pages cm
Includes bibliographical references and index.
ISBN 978-90-04-28379-4 (hardback : alk. paper) — ISBN 978-90-04-28378-7 (e-book)
1. Law of the sea. 2. Law of the sea—History. I. Castillo, Lilian del, editor. II. Caminos, Hugo, honouree.

KZA1145.L383 2015
341.4’5—dc23
2014035821

isbn 978-90-04-28379-4 (hardback)

isbn 978-90-04-28378-7 (e-book)

Copyright 2015 by Koninklijke Brill NV, Leiden, The Netherlands.

Koninklijke Brill NV incorporates the imprints Brill, Brill Nijhoff and Hotei Publishing.
All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or
transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise,
without prior written permission from the publisher.
Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV
provided that the appropriate fees are paid directly to The Copyright Clearance Center,
222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

This book is printed on acid-free paper.

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Contents

Preface xi
Biography of Hugo Caminos xiv
Publications of Hugo Caminos xvii
List of Abbreviations xxiv
Contributors xxvi

PART 1
Introduction

1 In Honor of Hugo Caminos 3

Bernard H. Oxman

PART 2
Historical Perspectives

2 The Contribution of Andrés Bello to the Law of the Sea in the Chilean
Civil Code 9
Jeannette Irigoin Barrenne

3 Hugo Grotius and the Law of the Sea 18

M.C.W. Pinto

4 The Origin of the Theory of Sovereignty of the Sea 48

Tullio Scovazzi

5 Reflections on the ‘Abstention Doctrine’ in the Diplomatic History of

Modern Ocean Law 64
Harry N. Scheiber

6 International Courts and Tribunals and the Development of the Law of

the Sea in the Age of Codification 77
Tullio Treves

7 The Freedom of Navigation: Modern Challenges Seen from a Historical

Perspective 89
Rüdiger Wolfrum

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vi Contents

PART 3
The United Nations Convention on the Law of the Sea (UNCLOS)

8 UNCLOS at 30: Some Reflections 107

Tommy Koh

9 Is the Internal Waters Regime Excluded from the United Nations

Convention on the Law of the Sea? 110
Marcelo G. Kohen

10 Le rôle du Secretariat des Nations Unies dans l’application de la

Convention des Nations Unies sur le droit de la mer 125
Annick de Marffy-Mantuano

11 The Contributions of Latin America to the Implementation of the

UNCLOS 144
Luis Valencia-Rodríguez

PART 4
The Law оf the Sea in Polar Regions

12 Some Comments on the Whaling in the Antarctic Judgment 175

Lilian del Castillo

13 The Exercise of Jurisdiction over Activities in Antarctica:

A New Challenge for the Antarctic System 192
Philippe Gautier

14 The System of Inspection of the Commission for the Conservation of

Antarctic Marine Living Resources 211
Ariel R. Mansi

15 Problems and Controversies Concerning Freedom of Navigation in

the Arctic 225
Janusz Symonides

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Contents vii

PART 5
The Area

16 International Subjectivity of Corporations Operating in the Area and

Universal Jurisdiction for Environmental Damage 245
Pablo Ferrara

17 The Common Heritage of Mankind: 21st Century Challenges of a

Revolutionary Concept 272
María Fernanda Millicay

PART 6
Islands and Archipelagic States

18 Archipelagic States and the New Law of the Sea 299

Vincent P. Cogliati-Bantz

19 About the Islands 318

Antonio Remiro Brótons

PART 7
Navigation: Freedom аnd Responsibility

20 Coastal and Flag States in Situations of Distress at Sea Giving Rise to

Environmental Damage 339
Agustín Blanco-Bazán

21 Law of the Sea, Naval Blockades and Freedom of Navigation in the

Aftermath of Gaza Flotilla Incident of 31 May 2010 356
Nilufer Oral

22 Les compétences de l’Etat côtier en matière de sécurité de la

navigation maritime 377
Roberto Virzo

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viii Contents

PART 8
Piracy

23 The Fight Against Piracy and the Enrica Lexie Case 397
Angela Del Vecchio

24 Piracy vs. International Armed Conflict 423

Yoram Dinstein

25 Un nouvel envisagement sur la piraterie maritime 435

Edison González-Lapeyre

26 Combating Piracy and Armed Robbery Off the Somali Coast and the
Gulf of Guinea 456
James L. Kateka

27 Combating Piracy: New Approaches to an Ancient Issue 469

Helmut Tuerk

PART 9
Recent Case Law оn Maritime Delimitation

28 Recent Judicial Decisions Concerning Maritime Delimitation 495

David H. Anderson

29 The Bay of Bengal Case before the International Tribunal for the Law
of the Sea 512
Gudmumdur Eiriksson

30 The Decision on the Maritime Boundary between Chile and Perú:

International Law Revisited 529
María Teresa Infante-Caffi

31 Some Remarks on the Territorial and Maritime Dispute

(Nicaragua v. Colombia) Case 545
Rafael Nieto-Navia

32 International Law Issues in the Judgment of the International Court

of Justice in the Peru-Chile Maritime Dispute Case 563
Francisco Orrego-Vicuña

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Contents ix

33 The Origin of the Principle of Natural Prolongation: North Sea

Continental Shelf Cases Revisited 583
Jin-Hyun Paik

PART 10
The International Tribunal for the Law the Sea

34 Fraud on the Tribunal? 597

Jean-Pierre Cot

35 The Juridical Personality and Nature of the International Tribunal for

the Law of the Sea 608
Miguel García García-Revillo

36 Les avis consultatifs du Tribunal International du Droit de

la Mer 622
Tafsir Malick Ndiaye

PART 11
Dispute Settlement Procedures and Unsettled Disputes

37 The Terra Nullius Requirement in the Doctrine of Effective

Occupation: A Case Study 657
Bing Bing Jia

38 United Nations Convention on the Law of the Sea and Provisional

Arrangements Relating to Activities in Disputed Maritime
Areas 674
Kamal Hossain

39 La délimitation du plateau continental du Golfe Persique :

une entreprise inachevée 685
Djamchid Momtaz

40 Regional Fisheries Bodies and Regional Fisheries Management

Organizations and the Settlement of Disputes Concerning Marine
Living Resources 698
Jean-François Pulvenis de Séligny-Maurel

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x Contents

41 The UNCLOS and the Settlement of Disputes: The ARA Libertad

Case 713
Susana Ruiz-Cerutti

PART 12
Submarine Cables

42 Submarine Cables and the International Law of the Sea 725

Thomas A. Mensah

List of Cases 751

Subject Index 755

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Preface

This Liber Amicorum has been prepared to honor a distinguished scholar with
an accomplished career path. In fact, this is the acknowledgement of disciples,
colleagues and friends all over the world to the multifacetic and prolific life of
Hugo Caminos, a professional who has excelled as a professor, diplomat, pub-
licist, international official, academic and judge and continues to contribute
his wisdom as an untiring author, and an active member of the Institut de
Droit International and of the National Academy of Law in Argentina. However,
regardless of his professional achievements, it would not be a faithful portrayal
of his personality if it were not accompanied by the unfaltering moral and
intellectual integrity that makes up his human essence.
A publication to celebrate such multiple achievements could have addressed
many subjects but the choice has been to focus on a field of vast knowledge
by the honoree, the Law of the Sea, as global a subject as global is the sea. In
fact, the uniqueness of the sea called for a single legal framework which after a
decade-long negotiations was achieved at the Third United Nations Conference
on the Law of the Sea when on April 30, 1982, it adopted the United Nations
Convention on the Law of the Sea (UNCLOS). The great endeavour of drafting
a comprehensive instrument to deal with areas and activities taking place at
sea, a compendium of rules to be applied by every State to the world oceans
without the preparatory work of the International Law Commission, as was
the case for the First United Nations Conference on the Law of the Sea,
was commissioned to a great extent to the Office of the Special Representative
of the Secretary-General of the United Nations for the Third United Nations
Conference on the Law of the Sea. Hugo Caminos was appointed Deputy
Director of that Office and all along the process carried out the relevant task of
decanting texts and institutions from myriads of proposals, fostering negotia-
tions among representatives. In his role, he was not an observer but a major
participant in the drafting of the new law of the sea and his commitment
marked a turning point in his professional life.
Later, when UNCLOS came into force on 16 November 1994 and the newly
established International Tribunal for the Law of the Sea became a reality in
1996, Hugo Caminos was elected Judge and performed in that capacity, follow-
ing his reelection, until 2011. Such an insightful approach to the drafting and
implementation of the modern law of the sea has made him one of the leading
specialists in the field of this branch of international law.
Consistent with the honoree’s background, the accomplished contributors
to this book address relevant issues of the law of the sea, dealt with in eleven

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xii Preface

chapters, covering from historical perspectives to the UNCLOS, the law of the
sea in polar regions, the Area, the particular issues of islands and archipelagic
States, the freedom of navigation and its attached responsibilities, piracy and
the latest awards on maritime delimitation, as well as recent practice of the
International Tribunal on the Law of the Sea (ITLOS), dispute settlement pro-
cedures and some unsettled maritime disputes, from the respective author’s
point of view.
Even though the vast experience of the honoree in the law of the sea
geared the content of these essays towards that subject, this circumstance
in no way undermines his expertise in international law as evidenced in his
publications.1 Life has granted him the opportunity to act in many capacities
and he has always honored those opportunities performing in every position
with utmost dedication. Accordingly, he has been able to successfully merge
the knowledge of a professor and an academician, both in his native Argentina
and abroad, the practice of the bilateral diplomacy as an Argentinean ambas-
sador to Brazil, the experience of multilateral diplomacy in his ten years
as the Under Secretary of Legal Affairs of the Organization of American States,
the commitment of a high-rank UN official in his eight years at the Law
of the Sea Conference, and the judicial function in his fifteen years’ tenure
at the bench as a Judge at the International Tribunal for the Law of the Sea.
In all these capacities, Judge Caminos brought in an exceptional ability to seek
consensus, reaping friendships in the various capacities he has performed and
the many cities in which he has lived. This ample experience has made Hugo
Caminos the respected scholar he currently is, turning his name into a hall-
mark of whatever activity he takes part in. To honor him in that capacity is a
pleasant duty for his friends and colleagues, and it was certainly the idea
behind the preparation of this book.
Finally, it is gratifying to recall that Hugo Caminos was my professor of
Public International Law at the School of Law of the University of Buenos
Aires, and a decisive influence on my choice of this branch of the law as my
niche in the legal world. After my graduation, while starting post graduate
studies I became an assistant teacher working at his chair for several years.
When other commitments led him to live abroad, he never relinquished his
affection for his country but kept in touch with his former disciples and col-
leagues whenever possible.
This Liber Amicorum has the privilege of enjoying the cooperation of a
renowned Honorary Board of Editors who have contributed with their knowl-
edge and time so that this tribute could become a reality, in addition to their

1 Infra 8–15.

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Preface xiii

essays and Introduction. To all of them, Marcelo G. Kohen, Francisco Orrego

Vicuña, Bernard H. Oxman, Tullio Treves and Rüdiger Wolfrum, our deepest
gratitude.
It is also a pleasure to highlight the cooperation in editing tasks carried out
by Dr. Pablo Ferrara, postdoctoral researcher at the University of Groningen,
The Netherlands, by some young teachers of the School of Law of the University
of Buenos Aires, Marina Fucito, Leopoldo Godio and Andrea Mackielo and of
an undergraduate teaching assistant, María Jimena Ricci, whom we thank for
the work undertaken. The support of Brill Nijhoff Publishers, provided by
Marie Sheldon and Lisa Hanson has been key to the successful outcome of this
project. The editing was, thanks to all those taking part, an enjoyable joint
undertaking.
On behalf of all the participants of a book made out of friendship, we trust
that Hugo Caminos will continue to contribute his wisdom to the realm of law.

Lilian del Castillo

Buenos Aires, June 2014

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Biography of Hugo Caminos

Hugo Caminos was born in Buenos Aires, Argentina, on March 16 1921, to an

intellectually gifted family. With his two brothers, Horacio and Ricardo, they
form a triad of outstanding scholars with remarkable careers both in Argentina
and abroad. A successful architect, Horacio Caminos was also an MIT profes-
sor and researcher whereas Ricardo A. Caminos, an Oxford DPhil, was a
renowned Egyptologist devoted to epigraphy and paleography whose invalu-
able library is today the Ricardo Caminos Memorial Library housed at the
British Exploration Society’s headquarters in London.
The international law scholar who years later would become a Judge at the
International Tribunal for the Law of the Sea attended High School at Colegio
Nacional Bartolomé Mitre in Buenos Aires. In 1942 he received his law degree
from the University of Buenos Aires School of Law, where he had been admit-
ted in 1939, and in 1964 was awarded the Juris Doctor degree. From 1945 to
1946 he pursued post-graduate courses on Public International Law at the
University of California at Berkeley, where he attended the courses and semi-
nars taught by Professor Hans Kelsen, who became an everlasting influence.
During the 1945 San Francisco Conference, Professor Kelsen found Caminos
a temporary position in the US Office of War Information, which involved
attending meetings and interviewing delegates. This gave him an opportunity
to experience a historic diplomatic conference for the first time.
Once back in Argentina, Hugo Caminos started his teaching career in Public
International Law at the University of Buenos Aires School of Law. He was in
charge of the General Course on Public International Law and progressively
became an Adjunct Professor (1956–1957), Associate Professor (1958–1962),
Full Professor (1963–1987) and Emeritus Professor (1988), crowning a lifelong
dedication to teaching, researching and writing on International Law.
Teaching has been, as the following brief enumeration shows, the unyield-
ing vocation of the honoree of this book, a remarkable human being with a
passion for teaching. Thus, Hugo Caminos was, in Argentina, a Professor of
Public International Law at the National Foreign Service Institute (ISEN), in
1963, 1967 and 1972, while he was abroad; Director of Studies of the English-
speaking Section (Public International Law), at The Hague Academy of
International Law (1973); a Lecturer on International Law and the Law of the
Sea at the United Nations Institute for Training and Research (UNITAR) courses
in Asia, Africa, Europe, the United States, Latin America and the Caribbean
between 1973 and 1985, e.g., he gave the first courses on the Law of the Sea in
Praia, Cape Verde, in Bissau, Guinea-Bissau and in Dacca, Bangladesh. He was

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Biography Of Hugo Caminos xv

also a Lecturer at the Institute of International Public Law and International

Relations of Thessaloniki, Greece, in 1986, 1992, 1994 and 1999; a Coordinator
of the annual courses on international law organized by the Organization of
American States Inter-American Juridical Committee from 1984 to 1994; a
Visiting Professor on International Law and the Law of the Sea at the University
of Miami School of Law from 1995 to 2011; and a Visiting Professor on
International Law of the Sea at the Libera Universitá di Studi Sociali, LUISS,
Rome, in 2008.
Alongside his development in the field of teaching, Hugo Caminos pursued
a successful career in diplomacy at the Ministry of Foreign Affairs and Worship
of Argentina. He was appointed Director of the International Organizations
Department (1971–1972), representing the country in the Sixth Committee of
the United Nations General Assembly (1971–1972). He was subsequently
appointed Legal Counsel (1972–1973) and later became Argentina’s Ambassa-
dor to Brazil (1981–1984).
Hugo Caminos additionally developed an impressive career in regional and
international organizations. In 1974 he was appointed Deputy Director of the
Office of the UN Secretary-General Special Representative for the Third United
Nations Conference on the Law of the Sea, a key role that he played in the
drafting of UNCLOS until 1981. At the regional level, he was appointed Under-
Secretary for Legal Affairs and Legal Counsel, Organization of American States
(OAS), Washington, D.C. (1984–1994).
The judiciary was a new field for Hugo Caminos when in 1996 he became
judge at the first election of the International Tribunal for the Law of Sea, and
re-elected in 2002. During his tenure, he was President of the Seabed Disputes
Chamber (2005–2008), Member of the Special Chamber appointed for the
Case concerning the Conservation and Sustainable Exploitation of Swordfish
Stocks in the South-Eastern Pacific Ocean 2000–2009, and President of the
Chamber for Fisheries Disputes for periods 1997–1999, 2002–2005 and 2008–
2011, when his term was over.
Regarding academic associations, Judge Caminos is a Member of the Institut
de Droit International (presented to the Selection Committee by Mme. Bastid
and Shabtai Rosenne, Associate 1979, Member 1983–present, 2nd. Vice-
President 2003–2005). He has been a Member of the Bar Association of
Buenos Aires since 1951; a Member of the International Curatorium of the
Institute of International Public Law and International Relations, Thessaloniki
since 1987; as well as a Member of the Association Internationale du Droit de
la Mer; an Emeritus Member of the American Society of International Law; a
Member of the Asociación Latinoamericana de Derecho Internacional Público
y Organización Internacional (ALADIP) and was a Former Correspondent

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xvi Biography Of Hugo Caminos

Member in Argentina of the Hans Kelsen Institut of Vienna, among other

institutions. He also served as a Member of Argentina’s National Group at
the Permanent Court of Arbitration (1962–1976) and as a Member of the
Arbitral Tribunal of the Administrative Commission of the River Uruguay
(2001–2003).
Hugo Caminos has been invited as a lecturer and key-note speaker by a vast
number of academic institutions, e.g., Columbia University (1973, 1978),
Cornell Law School (1977), St. John’s College, Oxford (1979), Inter-American
Defense College (1979, 1986), University of Brasilia, Department of Political
Science and International Relations (1982), University of Sao Paulo School of
Law, 1982; University of Pernambuco School of Law, Recife, 1983; American
University Law School, Washington, D.C., 1985; New York University Law
School, 1984 and 1985; Canadian Council on International Law, Ottawa, Annual
Meetings, 1984, 1985 and 1991, Georgetown University Law School, 1987;
George Washington University Law School, 1989; George Mason University
Center for Conflict Resolution, 1987–1993; University of Dayton, Department
of Political Science, Ohio, 1989.
In 1996, Hugo Caminos was awarded the ‘Konex Prize in Procedural,
International and Integration Law’, Konex Foundation; and in 2002 he was pre-
sented with the ‘Lawyer of the Americas Award’ by the University of Miami,
Inter-American Law Review (2002) and honored for his outstanding contribu-
tion in the field of international law by the Centre for International Legal
Studies, School of International Studies, Jawaharlal Nehru University, New
Delhi, India, in 2006. What is more, the Conference organized by the Law
of the Sea Institute on “Institutions and Regions in Ocean Governance” held at
the International Tribunal for the Law of the Sea in Hamburg, Germany, on
October 5–6, 2010, was dedicated to “Judge Hugo Caminos, Prolific Scholar,
Providing Clarity on Principles of International Law for his Lifetime
Commitment to the Development of the Law of the Sea.” A precise image of
Hugo Caminos’s vocation and wisdom.

Buenos Aires, June 2014

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Publications of Hugo Caminos

Bibliografía de Hans Kelsen, (with E.C. Hermida), Tipográfica Editora Argentina,

Buenos Aires, 1949, 1–61.
“La Enseñanza Universitaria del Derecho Internacional Público en los Estados
Unidos”, Revista Jurídica de Buenos Aires, Buenos Aires, 1958, 3:137–160.
“La Corte Internacional de Justicia”, in Curso para la enseñanza sobre las
Naciones Unidas, Facultad de Ciencias Económicas, Comerciales y Políticas
de la Universidad Nacional del Litoral, Rosario, 1961.
“El Secretario General de las Naciones Unidas”, in Curso para la enseñanza
sobre las Naciones Unidas, Facultad de Ciencias Económicas, Comerciales y
Políticas de la Universidad Nacional del Litoral, Rosario, 1962.
Translation into Spanish (with E. C. Hermida) of Hans Kelsen’s Principles of
International Law, New York, 1952, El Ateneo, Buenos Aires, 1965, XIX, 1–397.
La Convención Europea sobre Derechos Humanos: Resultado de una experiencia
Internacional, Instituto de Publicaciones del Centro Naval, Buenos Aires,
1970, 7–22.
“Un Mecanismo Internacional para los Fondos Marinos”, Revista La Ley, Buenos
Aires, 1973, 157: 950–964.
“The Law of the Sea at the Caracas Session: a Brief Evaluation”, 14 Columbia
Journal of Transnational Law, 1975, 80–86.
“El aprovechamiento y preservación de los recursos vivos del mar—Los prob-
lemas involucrados en las negociaciones de Naciones Unidas y otros foros”,
Comisión Económica para América Latina: Economía de los Océanos, 1977, E/
CEPAL/L.156/Rev.1, 55–82.
“La Explotación de los Recursos Vivos del Mar: Los Problemas Involucrados en
las Negociaciones de Naciones Unidas y otros foros”, Comisión Económica
para América Latina: Economía de los Océanos, 1978, E/CEPAL/L.156/Rev.2,
75–96.
“El Régimen de la Pesca y la Conservación de los Recursos Vivos en la
Zona Económica Exclusiva: Implicaciones Jurídicas y Económicas”, Comis-
ión Económica para América Latina: Economía de los Océanos, 1978,
E/CEPAL/L.156/Rev.2, 97–125.
“Aspects of NIEO in the Third UN Law of the Sea Conference: Exclusive
Economic Zone ant the Continental Shelf”, in Legal Aspects of the New
International Economic Order, (K. Hossain, ed.), Frances Pinter Ltd., London,
Nichols Publishing Company, New York, 1980, 188–192.
“Algunas Consideraciones Sobre la Contribución de la Tercera Conferencia de
las Naciones Unidas sobre el Derecho del Mar a la Creación de un Nuevo

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xviii Publications Of Hugo Caminos

Régimen Jurídico para los Océanos”, Revista Argentina de Derecho Militar,

October 1981, 1:31–38.
“Nuevos mecanismos procesales para la eficacia de la solución pacífica de las
controversias, con particular referencia a la solución no judicial en el ámbito
de las Naciones Unidas”, in Perspectivas del Derecho Internacional
Contemporáneo, Vol. 2, Instituto de Estudios Internacionales, Universidad
de Chile, 1981, 11–31.
“The Régime of fisheries in the Exclusive Economic Zone”, in Exclusive Economic
Zone: A Latin American Perspective, F. Orrego Vicuña (ed.), Boulder, Colorado,
Westview Press, 1984, 143–158.
“The Question of Competence in Intra-Regional Conflicts and Disputes: The
United Nations and the OAS Charter”, in The Peaceful Settlement of Disputes,
Proceedings of the 1984 Conference of the Canadian Council on International
Law, Ottawa, 1984.
“The Law of the Sea Convention, Customary International Law and the Rule of
Law within the International Community”, 18 L. Sea Inst. Proc., University
of Hawaii, 1985, 475–479.
“Les sources du droit de la mer” (with V. Marotta Rangel), in Dupuy and Vignes
(eds.) Traité du nouveau droit de la mer, Paris-Bruxelles, Economica, 1985,
27–121.
“Progressive Development of International Law and the Package Deal” (with
M.R. Molitor), American Journal of International Law, 1985, 79:871–890.
The Latin American Contribution to International Law, ASIL 80th Annual
Meeting Proceedings, Washington, D.C., 1986, 157–161.
“La relación entre la Convención de las Naciones Unidas sobre el Derecho
del Mar y la costumbre internacional a la luz del acuerdo global”, Revista
Jurídica de Buenos Aires, Facultad de Derecho y Ciencias Sociales de la
Universidad de Buenos Aires, 1986, 9–41.
“Some considerations of the Protection of Refugees in the Inter-American
System, with Particular reference to the Situation of Refugees in Central
America,” in Human Rights and the Protection of Refugees under International
Law. Proceedings of a Conference in Montreal. November 29–December 2,
1987. Alan E. Nash (ed.) John P. Humprey (Rapporteur). The Institute for
Research on Public Policy. Halifax. Canadian Human Rights Foundation,
1988, 95–103.
“The Legal Regime of Straits in the 1982 Convention on the Law of the Sea”,
Académie de Droit International de La Haye, Recueil des Cours, Vol. 205,
1987, 9–245.
“The Inter-American Convention on International Commercial Arbitration”,
Foreign Investment Law Journal, International Centre for Settlement of
Investment Disputes Review, Vol. 3 Nro. 1, Spring 1988, 107–117.

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Publications Of Hugo Caminos xix

“La contribución de los países latinoamericanos a la Convención de las

Naciones Unidas sobre el Derecho del Mar de 1982”, Revista de la Asociación
Argentina de Derecho Comparado, Nro. 7, 1988, 75–77.
“New Departures in the Exercise of Inherent Powers by American States: The
Central American Situation”, (with Roberto Lavalle), American Journal of
International Law, 1989, 83:395–402.
“L’exercice de pouvoirs implicites par le Secrétaire Général des Etats améric-
ains dans le cadre de l’établissement de la paix en Amérique centrale”, XXXV
Annuaire français de Droit International, París, 1989, 189–203.
“Los Estrechos Exceptuados del Régimen Jurídico de los Estrechos utilizados
para la Navegación Internacional de la Convención de las Naciones Unidas
sobre el Derecho del Mar”, in Temas de Derecho Internacional en Homenaje a
Frida M. Pfirter de Armas Barea, Fundación del Centro de Estudios
Internacionales de Buenos Aires, 1989, 211–226.
“Algunas Consideraciones sobre la Protección del Medio Marino en los
Estrechos Utilizados para la Navegación Internacional en la Convención de
las Naciones Unidas sobre el Derecho del Mar”, 17 Revista de la Comisión
Permanente del Pacífico Sur, Bogotá, 1989.
“State Practice in the Developing World: Latin America”, Proceedings of the
14th. Annual Seminar of the Center for Oceans Law and Policy, State practice
and the UN Convention on the Law of the Sea. Cascais, Portugal, 19–22 April
1991, University of Virginia, School of Law (compiled by M.H. Nordquist
ed.), 1991, 92–109.
“Sources of the Law of the Sea” (with V. Marotta Rangel), in R.J. Dupuy and
D. Vignes (eds.), A Handbook on the New Law of the Sea, Vol. 1, Dordrecht,
Boston, Lancaster, 1991, 29–139.
“La Convención de las Naciones Unidas y la Práctica de los Estados
Latinoamericanos,” International Meeting of Legal Experts on Latin America
and the United Nations Convention on the Law of the Sea, Permanent
Commission for the South Pacific (PCSP), Santiago, Chile, May 1991, 13–17.
Paper presented at the Symposium on a Tribunal of Justice for the Southern
Cone Common Market (Mercosur), held at the Artigas Institute of the
Ministry of Foreign Affairs, Montevideo, 30 October–1 November 1991,
Ediciones del Instituto Artigas del Servicio Exterior, Montevideo, 1992, 75–81.
“The UN Convention on the Law of the Sea: Some Developments in the Legal
Regime of Marine Spaces under National Sovereignty of Jurisdiction”,
in Thesaurus Acroassium, Institute of Public International Law and
International Relations, Thessaloniki, 1991, 319–370.
“Luis A. Podestá Costa”, lecture delivered in tribute to his memory at the inau-
gural session of the XVIII Course of International Law, Interamerican
Juridical Committee, Vol. 12, Washington, D.C., 1991, 1–12.

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xx Publications Of Hugo Caminos

“La OEA: Pasado, Presente y Futuro”, in La Organización de los Estados

Americanos en el Centenario del sistema Interamericano, compiled by Louis
Perret and Águeda Reus-Bazán, Universidad Autónoma de México, Instituto
de Investigaciones Jurídicas, México, 1992, 18–26.
“Latin American and the Law of the Sea: Past, Present and Future”, in Miles and
Treves (eds.), The Law of the Sea: New Worlds, New Discoveries, Proceedings of
the Law the Sea Institute, Nro. 26, Genoa, Italy, 1992, 79–90.
“CONVEMAR y la práctica de los Estados Latinoamericanos”, Revista de la
Comisión Permanente del Pacífico Sur, Santiago de Chile, 1992, 20:43–54.
“Democratic Legitimacy in the Inter-American System,” 87th Annual meeting
of the American Society of International Law panel on “The Effects of the
New World Order on the Third World”, Proceedings, Washington, D.C.,
31 March–3 April 1993, 41–48.
“La legitimidad de la Democracia Representativa y su Reciente Evolución en la
Organización de los Estados Americanos”, in International Law in an Evolving
World: Liber Amicorum in Tribute to Professor Eduardo Jiménez de Aréchaga,
Montevideo, 1994, 1037–1057.
“Humanitarian Intervention and the Inter-American System”, in N. Al Nauimi
and R. Meese (eds.), International Legal Issues arising under the United
Nations Decade of International Law, Kluwer, Qatar, 1995, 963–998.
“La intervención humanitaria ante el derecho internacional”, Academia
Nacional de Derecho y Ciencias Sociales de Buenos Aires, Anales año XLI,
Nro. 34, Buenos Aires, 1996, 11–43.
“The Role of the United Nations and the Regional Organizations in the
Maintenance of International Peace and Security: The case of the Inter-
American System”, in Thesaurus Acroassium, Vol. XXIII, Institute of Public
International Law and International Relations, Thessaloniki, 1998, 187–215.
“Harmonization of pre-existing 200-mile claims in the Latin American region
with the United Nations Convention on the Law of the Sea and its exclusive
economic zone” (Symposium: Building new regimes and institutions for the
sea), 30 (1) University of Miami Inter-American Law Review, 1998, 9–30.
“The role of the Organization of American States in the promotion and protec-
tion of democratic governance”, Académie de Droit International de La
Haye, Recueil des Cours, Vol. 273, 1998, 103–237.
“La Declaración Universal de los Derechos Humanos: 1948–1998”, Academia
Nacional de Derecho y Ciencias Sociales, Anales Año XLIII, Buenos Aires,
1998, 36:9–19.
“Some Considerations on Harmonization of Pre-existing 200 Mile Territorial
Sea Claims in Latin America with Part V of the United Nations Convention

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Publications Of Hugo Caminos xxi

on the Law of the Sea”, in Volkmar Götz, Peter Selmer and Rüdiger Wolfrum
(eds.), Liber amicorum Günther Jaenicke—Zum 85. Geburtstag, Springer,
Berlin, 1998, 465–482.
“El individuo y las organizaciones no gubernamentales en las resoluciones
sobre Derecho Internacional del Medio Ambiente del Institut de Droit
international (Sesión de Estrasburgo, 1997)”, Seminar of Experts on the
Right to the Environment, Bilbao, Spain, 10–13 February 1999 under the aus-
pices of UNESCO-High Commissioner for Human Rights, in Declaración de
Biskaia sobre el Derecho al Medio Ambiente, Bilbao, 1999, 219–224.
“The Jurisdiction of the International Tribunal for the Law of the Sea:
an Overview” in M.H. Nordquist and J.N. Moore, eds., Oceans Policy: New
Institutions, Challenges and Opportunities, M. Nijhoff, 1999, 93–108.
“José María Ruda (1924–1994)”, in Liber Amicorum in Memory of Judge José
María Ruda, Kluwer Law International, 2000, XXXIII–XL.
“Algunas Consideraciones acerca de la Solución de Controversias en la
Convención de las Naciones Unidas sobre el Derecho del Mar y el Tribunal
Internacional del Derecho del Mar” in José M. Sobrino Heredia, Cuadernos
de Derecho Pesquero, Vol. 2, Fundación Pedro Barrié de la Maza, La Coruña,
2000, 23–34.
“Las normas sobre ejecución en la Convención de las Naciones Unidas sobre
Derecho del Mar”, in Cursos Euro-mediterraneos Bancaja de Derecho
Internacional, Vol. 5 (J. Cardona, ed.), Castellón, 2001, 565–612.
Law of the Sea, The Library of Essays in International Law, Ashgate-Darmouth,
England, 2001, XXVIII–510.
“The establishment of specialized courts”, in Myron H. Nordquist and John
Norton Moore (eds.), Current Marine Environmental Issues and the
International Tribunal for the Law of the Sea, The Hague, Martinus Nijhoff
Publishers, 2001, 33–40.
“Algunas consideraciones sobre la creación de tribunales internacionales espe-
cializados: el caso del Tribunal Internacional del Derecho del Mar”, 47 (2da.
Época, 40), Anales de la Academia Nacional de Derecho y Ciencias Sociales de
Buenos Aires, 2002, 1–20.
“The Creation of Specialized Courts: The Case of the Tribunal for the Law of
the Sea”, in Nisuke Ando, Edward McWhinneyand and Rüdiger Wolfrum,
eds., Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, 2002,
569–574.
“The Inter-American System for the Protection of Human Rights”, in Janusz
Symonides (ed.), Human Rights: International Protection, Monitoring,
Enforcement, UNESCO, Ashgate Aldershot, Burlington, 2003, 165–211.

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xxii Publications Of Hugo Caminos

“The written proceedings” in P. Chandrasekhara Rao and Ph. Gautier (eds.),

The Rules of the International Tribunal for the Law of the Sea: A Commentary,
Martinus Nijhoff Publishers, Leiden/Boston, 2006, 171–190.
“The International Tribunal for the Law of the Sea: an overview of its jurisdic-
tional procedure”, in Angela Del Vecchio (ed.), New international tribunals
and new international proceedings, Giuffrè Editore, Milano, 2006, 17–33.
“Algunas consideraciones acerca del desarrollo del derecho del mar en el
marco de la Convención de las Naciones Unidas sobre el Derecho del Mar”,
Jornadas de Derecho Internacional, Organization of American States,
Washington, D.C., 2007, 539–556.
“Categories of International Straits Excluded from the Transit Passage Regime
under Part III of the United Nations Convention on the Law of the Sea”, in
Tafsir M. Ndiaye and Rüdiger Wolfrum (eds.), Law of the Sea. Environmental
Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah,
Martinus Nijhoff, Leiden/Boston, 2007, 583–592.
“The Creation of the International Tribunal for the Law of the Sea as a
Specialized Court under the United Nation Convention for the Law of the
Sea”, in Marcelo G. Kohen (ed.), Promoting Justice, Human Rights and Conflict
Resolution through International Law: Liber Amicorum to Lucius Caflisch,
Martinus Nijhoff, Leiden, 2007, 823–835.
“The International Tribunal for the Law of the Sea and its alleged threat to the
unity of international law”, in Rafael Casado Raigón and Giuseppe Cataldi
(eds.), Mélanges de droit de la mer offerts à Daniel Vignes, Bruylant, Bruxelles,
2009, 69–81.
“The Creation of the International Tribunal for the Law of the Sea as a
Specialized Court”, in Aristotle Constantinides and Nikos Zaikos (eds.), The
Diversity of International Law: Essays in Honour of Professor Kalliopi K. Koufa,
Martinus Nijhoff, Leiden-Boston, 2009, 97–108.
“El desarrollo del Derecho del Mar en el marco de la Convención de las
Naciones Unidas sobre el Derecho del Mar”, in Luis Fernando Alvarez
Londoño, S.J., Rafael A. Prieto Sanjuán y Andrés Téllez Núñez (eds.), El
Derecho Internacional: entre lo jurídico y lo político. Homenaje al profesor
Rafael Nieto Navia, Pontificia Universidad Javeriana, Facultad de Ciencias
Jurídicas, Sociedad Latinoamericana para el Derecho Internacional, Grupo
Editorial Ibáñez, Bogotá, 2010, 241–259.
“Enforcement Jurisdiction under the United Nations Convention on the Law of
the Sea: An overview”, in Kalliopi Koufa (ed.), International Law Enforce-
ment. New Tendences, Thesaurus Acroasium, Vol. XXXVI, Institute of Public
International Law and International Relations, Thessaloniki, 2010,
327–372.

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Publications Of Hugo Caminos xxiii

“Algunas Consideraciones sobre la Creación de Tribunales Internacionales

Especializados: El caso del Tribunal Internacional del Derecho del Mar”, in
Memorias de la CPPS—Ponencias sobre recursos vivos y no vivos, Guayaquil,
Ecuador, 2010, 30–41.
“La Convención de las Naciones Unidas sobre el Derecho del Mar y el desar-
rollo del Derecho del Mar”, XXXVIII Curso de Derecho Internacional,
Organization of American States, Washington, D.C., 2012, 265–283.
‘Contiguous Zone’, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public
International Law, Vol. II, Oxford University Press, Oxford, 2012, 714–719.
‘I’m Alone, The’, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public
International Law, Vol. V, Oxford University Press, Oxford, 2012, 82–84.
‘Hot Pursuit’, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public
International Law, Vol. IV, Oxford University Press, Oxford, 2012,
1000–1003.
‘Saavedra Lamas Treaty (1933)’, in R. Wolfrum (ed.), The Max Planck Ency-
clopedia of Public International Law, Vol. VIII, Oxford University Press,
Oxford, 2012, 1082–1085.
“Enforcement Jurisdiction under the United Nations Convention on the Law of
the Sea”, in Holger P. Hestermeyer, Doris König, Nele Matz-Lück, Volker
Röben, Anja Seibert-Fohr, Peter-Tobias Stoll and Silja Vöneky (eds.),
Coexistence, Cooperation and Solidarity, Liber Amicorum Rüdiger Wolfrum,
Martinus Nijhoff Publishers, Leiden-Boston, 2012, 737–776.
“The Jurisdiction and Procedure of the International Tribunal for the Law of
the Sea: An Overview”, in, J.M. Van Dyke, S.P. Broder, S. Lee and J.-H. Paik
(eds.), Governing Ocean Resources: New Challenges and Emerging Regimes, A
Tribute to Judge Choon-Ho Park, Martinus Nijhoff, Leiden-Boston, 2013,
259–273.
“The Growth of Specialized International Tribunals and the Fears of
Fragmentation of International Law”, in Nerina Boschiero, Tullio Scovazzi,
Cesare Pitea and Chiara Ragni (eds.), International Courts and the
Development of International Law: Essays in Honour of Tullio Treves, Springer,
2013, 55–64.
“A succint historical overview of the status of straits in international law”, in
Liber Amicorum Budislav Vukas, Koninklijke Brill N.V., Leiden (in print).
The Legal Regime of Straits: Contemporary Challenges and Solutions (with
Vincent P. Cogliati-Bantz) Cambridge University Press (in print).

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List of Abbreviations

ADM Annuaire de Droit de la Mer

AFDI Annuaire Français de Droit International
AJIL American Journal of International Law
ASIL American Society of International Law
BIMCO Baltic and International Maritime Council
BYIL British Yearbook of International Law
CNUDM Convention de Nations Unies sur le Droit de la Mer
ECHR European Court of Human Rights
EEZ Exclusive Economic Zone
EU European Union
ICC-IMB International Chamber of Commerce—Commercial Crime
Services’ International Maritime Bureau (IMB)
ICJ-CIJ International Court of Justice
ICSID International Centre for Settlement of Investment Disputes
ICYT International Criminal Tribunal for the former Yugoslavia
IDI Institut de Droit International
IHO International Hydrographic Organisation
IJMCL International Journal of Marine and Coastal Law
ILA International Law Association
ILC International Law Commission
ILM International Legal Materials
ILR International Law Reports
IMO International Maritime Organisation
IMO-MSC International Maritime Organisation—Maritime Safety
Committee
INDEMER Institut du Droit Economique de la Mer
ITLOS International Tribunal for the Law of the Sea
JMLC Journal of Maritime Law and Commerce
JYIL Japanese Yearbook of International Law
OAS Organization of American States
OMI Organisation Maritime Internationale
PCA-CPA Permanent Court of Arbitration
PCIJ Permanent Court of International Justice
RBDI Revue belge de droit international
RdC/RCADI Recueil des cours [Collected Courses] de l’Académie de droit
international de La Haye

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List Of Abbreviations xxv

RGDIP Revue Général de Droit International Public

[UN] RIAA [United Nations] Reports of International Arbitral Awards
UNCLOS United Nations Convention on the Law of the Sea
UNTS United Nations Treaty Series
VCLT Vienna Convention on the Law of Treaties
VJTL Vanderbilt Journal of Transnational Law
ZEE Zone Économique Exclusive

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Contributors*

David H. Anderson, CMG

Judge of the International Tribunal for the Law of the Sea (1996–2005).
Ad hoc Judge in the Arctic Sunrise (Provisional Measures) case (Netherlands v.
Russian Federation) (2013). Advisor to the Foreign and Commonwealth Office
on all aspects of international law, the law of treaties and the law of the sea
(1960–1996). Member of the British Delegations to the Vienna Conference
on the Law of Treaties, the III UN Conference on the Law of the Sea, the
Straddling Fish Stocks Conference and the Secretary General’s Consultations
about Part XI. UK Agent in the ICJ Fisheries Jurisdiction case (UK v. Iceland)
Merits (1972–4). Negotiator of over a dozen maritime boundary treaties.
Author of Modern Law of the Sea—Selected Essays (Brill, 2008). Listed as
Arbitrator under Annex VII of the UNCLOS.

Agustín Blanco-Bazán
Lawyer (University of Buenos Aires). Post-degree courses in Philosophy,
International Law and Political Sciences at the University of Vienna,
Austria. Former Head of the Legal Office of IMO (International Maritime
Organization). Currently working as an international lawyer and consultant
and lecturer specializing in maritime law and law of the sea; crimes at sea
(piracy and maritime terrorism), maritime environmental law (prevention
of pollution from vessels); and liability and compensation in the field of
maritime law. Resides in London.

Vincent P. Cogliati-Bantz
Holds a doctorate in international law from the Graduate Institute of
International Studies, Geneva. He lectures in the area of international and
comparative law at the TC Beirne School of Law, University of Queensland,
Australia. With Hugo Caminos, he is the author of the forthcoming The Legal
Regime of Straits: Contemporary Challenges and Solutions (Cambridge
University Press).

* The views expressed in the essays published in this book are those of the authors and do not
represent the positions of the institutions, courts or governments where they have been or
are members at present.

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Contributors xxvii

Jean-Pierre Cot
Professeur émérite, Université de Paris-I Panthéon-Sorbonne, Juge, Tribunal
international du droit de la mer.

Lilian Del Castillo

Doctor (UBA), Public International Law chair at the University of Buenos
Aires School of Law. Member of the Argentine Council for Foreign Relations
(CARI), the Academy of Environmental Sciences and the Sea Academy of
Argentina. Author of The Rio de la Plata and its Maritime Front Legal Regime
(Brill), as well as monographs and articles on natural resources, environment,
water law, jurisdictional immunities, international jurisdictions, territorial
issues and international law sources.

Angela Del Vecchio

Full professor of International Law and Director of Master/LLM on Law and
Government of the European Union at LUISS G. Carli University of Rome.
Member of the Rome Bar. Member of the Board of the Network of Maritime
Safety and Security (MARSAFENET). Member of the Board of Editors of the
Revue du Droit de l’Union Européenne, Estudios Internacionales, Studi
sull’integrazione europea and Rivista del diritto della navigazione. Author of
Le Parti nel Processo Internazionale, Giuffrè, 1975; Zona economica esclusiva e
Stati costieri, Le Monnier, 1984; Giurisdizione internazionale e globalizzazione,
Giuffré, 2003; International Courts and Tribunals between globalisation and
localism, Eleven, 2013; editor of International Law of the Sea: Current Trends
and Controversial Issues, Eleven, 2014.

Yoram Dinstein
Member of the Institute of International Law, Professor Emeritus at Tel Aviv
University (Israel), and since 2010 has been the President of the United
Nations Association of Israel. In the past, he served as President, Rector and
Dean of the Faculty of Law of Tel Aviv University. Professor Dinstein was
twice a Stockton Professor of International Law at U.S. Naval War College
(2002/2003, 1999/2000). He was also a Humboldt Fellow at the Max Planck
Institute for International Law at Heidelberg (Germany), 2000/2001.

Gudmumdur Eiriksson
Gudmundur Eiriksson is a Professor at the O.P. Jindal Global Law School and
Executive Director of its Centre for International Legal Studies. He served in
the Office of the Secretary-General of the United Nations for the Law of the
Sea from 1974 to 1977. He was an Assistant Legal Advisor and Legal Advisor

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xxviii Contributors

in the Ministry for Foreign Affairs of Iceland from 1977 to 1996 and was a
member of the Icelandic delegation at the Third United Nations Conference
on the Law of the Sea from 1978 to 1982. He was a Judge of the International
Tribunal for the Law of the Sea from 1996 to 2002 and President of its
Fisheries Dispute Chamber from 1999 to 2002. He was a member of the
United Nations International Law Commission from 1987 to 1996. He has
served as Ambassador of Iceland in Ottawa, Pretoria and New Delhi.

Pablo Ferrara
Assistant Professor of Public International Law at Xiamen University’s South
China Sea Institute (China). Formerly, he was Postdoctoral Researcher at the
Centre of Energy Law at the University of Groningen (Netherlands). In 2003,
he graduated at the University of Buenos Aires School of Law (Argentina),
and in 2010 obtained his doctorate at the University of California at Berkeley
(USA) on cooperation in offshore oil and gas development for sovereignty
disputed areas. In 2011, he was a research fellow at the Max Planck Institute
for Comparative Public Law and Public International Law (Germany).
Lecturer on general international law at the University of Buenos Aires,
Universidad Di Tella and Universidad del Salvador in Argentina; also at
Berkeley (USA), Max Planck (Germany), and The Netherlands.

Miguel García García-Revillo

Senior Lecturer on Public International Law and European Union Law at
the University of Córdoba (Spain), where he obtained his Ph.D. with a thesis
on the International Tribunal for the Law of the Sea. Chair of the Law of the
Sea Interest Groups of ASIL (LOSIG) and ESIL (LAWSEA IG), Delegate of
Communications of the Association Internationale du Droit de la mer.
Lecturer on Law of the Sea conferences in Naples, Mexico DF, Valencia,
Buenos Aires, Washington DC, Porto and others. Adviser for public and
private entities and Governments in International Law and European Union
Law issues.

Philippe Gautier
Registrar of the International Tribunal for the Law of the Sea since 2001.
He joined the Tribunal in 1997 as Deputy Registrar. From 1984 until 1997,
he worked for the Ministry of Foreign Affairs of Belgium where he served
as Head of the Unit “Law of the Sea, Antarctica, recognition of States”
(1991–1995) and Director of the treaty Division (1995–1997). He is a Doctor
of Law and holds a masters degree in Philosophy from the Catholic University

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Contributors xxix

of Louvain (Louvain-la-Neuve) where he has been teaching as a Professor

since 1996. His doctoral thesis (1993) is devoted to the definition of treaties
and he is the author of numerous publications on international law.

Edison González-Lapeyre
Ambassador Edison González Lapeyre has a Doctorate in Law and Social
Sciences of the University of the Oriental Republic of Uruguay. Formerly, he
was a Professor of Private International Law and Public International Law at
the Faculty of Law of this University. He was Vice-President of the Uruguayan
Delegation at the III UN Conference on the Law of Sea (Caracas 1974) and in
2003 taught the course on “Transport maritime et régime portuaire” at The
Hague Academy of International Law (RdC 308,2004). Additionally, he was
President of the National Administration of Ports of Uruguay and President
of the Interamerican Ports Organisation. He has authored more than a
hundred of articles and books in his speciality.

Kamal Hossain
Vice-Chairman, Executive Council of the ILA. Senior Advocate of the
Supreme Court of Bangladesh and Barrister. BCL and doctorate in
International Law, University of Oxford. Chairman of the Constitution
Drafting Committee of Bangladesh (1972); Minister of Law (1972–73);
Minister of Foreign Affairs (1972–75); Visiting Fellow, All Souls College,
Oxford (1975); Chairman, (Panel D-2) and Member, UN Compensation
Commission, Geneva (1999–2005). Ad hoc Judge, ITLOS, Malaysia vs.
Singapore case (2003). Member, Arbitral Tribunal in Annex VII of the
UNCLOS, Land Reclamation Malaysia and Singapore case, (2004–2005), and
Maritime Delimitation case involving Guyana and Suriname (2005–2007).
Chairman and Member of International Arbitral Tribunals (ICSID, ICC and
UNCITRAL).

María Teresa Infante Caffi

Holding a degree in Law from the University of Chile and a post-graduate
from the Institut Universitaire de Hautes Etudes Internacionales, Geneva.
Researcher at the Hague Academy of International Law. Full professor at the
University of Chile and Director of the Institute of International Studies until
1995. Director of the Graduate School. Co-director of the Master’s Programme
in International Law, University of Heidelberg & University of Chile. Member
of the Institut de Droit International; President of the Chilean Society of
International Law for different terms. She was Director of the National

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xxx Contributors

Directorate of Frontiers and Limits, Chilean Ministry of Foreign Affairs from

1997 to 2014. Co-agent in the lawsuit case filed by Perú against Chile at the
International Court of Justice, 2008–2014.

Jeannette Irigoin Barrenne

Director of Political and Legal Affairs, National Academy for Political and
Strategic Studies, Ministry of National Defense; former Director, Institute
of International Studies University of Chile; Full Professor, School of Law,
University of Chile. Member of the Institut de Droit International. Ph.D.
studies in International Law, Complutense University of Madrid; Masters
degree in International Studies, University of Chile; Graduate Degree in
Juridical & Social Sciences, University of Chile and Attorney-at-law,
Chilean Supreme Court. Visiting Professor: Complutense University of
Madrid; University of Puerto Rico; Advanced Center of International Studies,
University of Buenos Aires; XVIII Course of International Law, OAS, Rio de
Janeiro, Brazil; School of Law, Ruprecht-Karls-Universität of Heidelberg.

Bing Bing Jia

D. Phil. (Oxon.), Professor of International Law, Law School, Tsinghua
University, Beijing, China, since 2004. Legal Officer in the Appeals Chamber
of the United Nations International Criminal Tribunal for the former
Yugoslavia (The Hague) (ICTY), 2002–2004; Legal Officer in Trial Chamber III
of the ICTY, 2000–2002; Associate legal officer in the Appeals Chambers of
the ICTY and of the International Criminal Tribunal for Rwanda (ICTR),
1998–2000.

James L. Kateka
Judge of the International Tribunal for the Law of the Sea. Member of the
Institut de Droit international. Judge ad hoc of the ICJ in the DRC v Uganda
case. Arbitrator in the Mauritius v United Kingdom and Malta v Sao Tome &
Principe cases. Former member of the ILC. Partner in the South Law
Chambers and Advocate of the High Court of Tanzania. Legal Advisor and
Ambassador of Tanzania to Germany, the Russian Federation and Sweden.
Delegate of Tanzania to the III UN Conference on the Law of the Sea, the
London IMO Conferences on the Anti-Dumping (1972) and Marine Pollution
(1973) Conventions, among others. Author of numerous articles. Awarded
in 1993 the Papal Honour of the Grand Cross with the Star of the Order of
Pius IX.

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Contributors xxxi

Tommy Koh
Professor Tommy Koh is currently Ambassador-At-Large at the Ministry of
Foreign Affairs of Singapore; Special Adviser of the Institute of Policy Studies
and Chairman of the Centre for International Law, National University of
Singapore. He is also the Rector of Tembusu College at the University Town
of the National University of Singapore. He was Singapore’s Permanent
Representative to the United Nations, New York (1968–1971) (concurrently
accredited as High Commissioner to Canada) and again from 1974 to 1984
(concurrently accredited as High Commissioner to Canada and Ambassador
to Mexico) and Ambassador to the United States of America (1984–1990).
He was President of the Third UN Conference on the Law of the Sea
(1981–1982).

Marcelo Kohen
Professor of International Law at the Graduate Institute of International and
Development Studies in Geneva, Member of the Institut de Droit International,
Director-General of the Latin American Society of International Law. Author of
about hundreds of works in the field of International Law, in French, English
and Spanish,his book ‘Possession Contestée et Souveraineté territoriale’
(Adverse Possession and Territorial Sovereignty) was awarded the Paul
Guggenheim Prize 1997. He has acted as counsel and advocate for a number
of States in contentious and advisory proceedings before the International
Court of Justice, the International Tribunal for the Law of the Sea and arbitral
tribunals. He is also an arbitrator.

Ariel R. Mansi
Professor of International Law, University of Mar del Plata. Representative of
Argentina at the Commission for the Conservation of Antarctic Marine Living
Resources and at Antarctic Treaty Consultative Meetings (1997–2012).

Annick de Marffy-Mantuano
International strategy consultant on maritime affairs and law of the sea. PhD
in Law (Docteur en Droit d’Etat, France), Diplôma in International Relations
from the « Institut du Droit de la Paix et du Développement » (IDPD, Nice,
France); President of the Scientific Board of the Economic Law of the Sea
Institute (INDEMER); Member of the Board of the Oceanographic Institute,
Monaco; Member of the Global Forum on Oceans, Coasts and Island,
University of Delaware (USA); Former Director of the Division for Ocean
Affairs and the Law of the Sea, Office of Legal Affairs, UN (2001–2004);

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xxxii Contributors

Member of the UN Secretariat participating in the III UN Conference on the

Law of the Sea (1974–1982); author of “La genèse du droit international de la
mer: le Comité des fonds marins”.

Thomas Mensah
Former Judge of the International Tribunal for the Law of the Sea and
Arbitrator in International Law and the Law of the Sea.

María Fernanda Millicay

Argentine career diplomat since 1997, she holds a degree in Law from the
University of Buenos Aires and began her career at the Legal Advisor Office
of the Ministry of Foreign Affairs, Argentina, focusing on law of the sea and
related issues. Delegate of Argentina to many law of the sea meetings,
including at the United Nations, the FAO and the International Seabed
Authority. In 2003, she was awarded the 18th Hamilton Shirley Amerasinghe
Memorial Fellowship on the Law of the Sea for her work on the legal regime
for the biodiversity of the Area (2007). Currently she works on law of the sea
issues at the Permanent Mission of Argentina to the United Nations and is
Co-Chair of the UN Regular Process for Global Reporting and Assessment of
the State of the Marine Environment, including Socio-economic Aspects.

Djamchid Momtaz
Professeur à l’Université de Téhéran. Membre de l’Institut de droit
international. Ancien Président de la Commission du Droit International.

Tafsir Malick Ndiaye

Judge of the International Tribunal for the Law of the Sea (ITLOS). President
of the Chamber for Fisheries Disputes. Member of the IAAF Ethics
Commission.

Rafael Nieto-Navia
Colombian Ambassador to the Scandinavian Countries (2009–2011). Judge
of the Appeals Chamber of the International Criminal Tribunals for the
former Yugoslavia and Rwanda, The Hague, The Netherlands (1997–2001)
and judge of a Trial Chamber (2001–2003). Arbiter and President of the
Argentinean-Chilean Arbitration Tribunal for the Laguna del Desierto
Case, Rio de Janeiro, Brazil (1991–1995). Judge (1982–1994) and President
(1987–1989 and 1993–1994) of the Inter-American Court of Human Rights,
San José, Costa Rica. Head of the Public Law Department at the Law Faculty,
Universidad Javeriana, Bogotá, (1986 to 1997). Distinguished Professor of

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Contributors xxxiii

International Law, Javeriana University (Bogota, Colombia) (1962–1997).

Deputy Justice of the Colombian Supreme Court (1980-1984).

Nilufer Oral
Member of the Law Faculty at Istanbul Bilgi University Law School. The
author served as one of the legal advisors to the Turkish Foreign Ministry for
the Gaza Flotilla incident. The views reflected in this chapter belong solely
to the author and do not reflect the views of any government. The author
gratefully acknowledges the valuable contribution and guidance provided by
the late Prof. Jon Van Dyke.

Francisco Orrego-Vicuña
Professor of International Law at the Heidelberg University Center for Latin
America in Santiago, Chile, he has served as Judge and President of the World
Bank Administrative Tribunal and currently is a judge at the International
Monetary Fund Administrative Tribunal. He has served as ad-hoc Judge at the
International Tribunal for the Law of the Sea and the International Court of
Justice. He is a member of the Institut de Droit International and former
President of this institution and author of major publications on
international law, the law of the sea and international dispute settlement
and arbitration.

Bernard H. Oxman
A Richard A. Hausler Professor of Law at the University of Miami School of
Law and Director of the Master of Laws Program in Ocean and Coastal Law.
Co-editor in chief of the AJIL (2003 to 2013). Member of the Institut de Droit
international. Judge ad hoc of the ICJ and the ITLOS, as well as arbitrator and
counsel in public and private international cases. Granted A.B. and J.D.
degrees from Columbia University, he later served in the International Law
Division of the Office of the Judge Advocate General of the Navy, and
subsequently as Assistant Legal Adviser for Oceans, Environment, and
Scientific Affairs at the U.S. Department of State. United States Representative
to the III UN Conference on the Law of the Sea and chair of the English
Language Group of the Conference Drafting Committee.

Jin-Hyun Paik
Judge of the International Tribunal for the Law of the Sea (ITLOS). Ph.D.
(International Law) University of Cambridge. Professor of International
Law, Graduate School of International Studies, Seoul National University
(1997–present). Author of Maritime Issues in the 1990s: Antarctica, the Law of

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xxxiv Contributors

the Sea and Marine Environment (co.ed.), Seoul Press, 1992; United Nations
Convention on the Law of the Sea and East Asia (co-ed.), Seoul Press, 1996;
Asian Approaches to International Law and the Legacy of Colonialism (co-ed.)
Routledge, 2012; Sharing and Distributing Ocean Resources (co-ed.), Oreum
Publishing House, 2012; Regions, Institutions, and the Law of the Sea, Studies in
Ocean Governance (co-ed.), Martinus Nijhoff, 2013.

M.C.W. Pinto
Attorney of the Supreme Court of Sri Lanka, and of the Inner Temple,
Barrister; Consultant on international law to the Government of Sri Lanka;
Member of the Institut de Droit International. Formerly, Legal Adviser of
the Ministry of External Affairs of Sri Lanka; Representative of Sri Lanka
to the U.N. Seabed Committee and to the Third U.N. Conference on the
Law of the Sea, 1968–1982; Member of the International Law Commission,
1973–1981, and Chairman of the Commission, 1980.

Jean-François Pulvenis de Séligny-Maurel

Senior Policy Advisor, Inter-American Tropical Tuna Commission (IATTC).
Formerly, Director, Fishery and Aquaculture Economics and Policy Division
(previously Fishery Policy and Planning Division), FAO (2002–2011);
Ambassador to Guyana and Representative Observer to CARICOM
(2000–2002); Director, Land and Maritime Boundaries, Ministry of External
Relations (Venezuela) (1988–2000); joined the Ministry in 1974; promoted
to Ambassador in 1985. Participated in numerous bilateral, regional and
international negotiations on the law of the sea, fisheries and in the field of
the environment and sustainable development. Graduate and post-graduate
degrees in law, international law and literature (University of Nice, France).

Antonio Remiro Brótons

Professor of Public International Law of the Universidad Autónoma de
Madrid. Member of the Institut de Droit International.

Susana Ruiz-Cerutti
Ambassador. Legal Adviser, Ministry of Foreign Affairs, Argentina. Former
Minister of Foreign Affairs (1989); former Vice-Minister of Foreign Affairs
(1987–1989 and 2000).

Harry N. Scheiber
Director, Law of the Sea Institute, UC Berkeley, Stefan A. Riesenfeld Chair
Professor of Law and History, Emeritus, University of California, Berkeley,
School of Law.

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Contributors xxxv

Tullio Scovazzi
Professor of International Law, University of Milano-Bicocca, Milan, Italy.

Janusz Symonides
Graduated from the Diplomatic and Consular Department of the Main
School of Foreign Service in Warsaw (1959). Ph.D. in Law from Nicolaus
Copernicus University in Toruń (1963). Professor Extraordinarius (1973)
and Ordinarius of Law (1980). 1965 Diploma of the Hague Academy of
International Law. Head of the Chair of International Law (1968–1977);
Director of the Division of Human Rights, Democracy and Peace at UNESCO,
Paris (1989–2000); Professor at the Institute of International Relations,
University of Warsaw (1984–1987, and since 1999). Author of Geographically
Disadvantaged States under the 1982 Convention on the Law of the Sea,
Dordrech-Boston-London, 1988, among more than five hundred scientific
publications, monographs and collections of documents in multiple
languages.

Tullio Treves
Professor of International Law at the University of Milano, Judge of the
International Tribunal for the Law of the sea (1996–2011); advocate and
arbitrator in international cases; author of numerous books and articles in
various languages on public and private international law subjects. Member
of the Institut de Droit International and of the Curatorium of the Hague
Academy of International Law.

Helmut Tuerk
Judge of the International Tribunal for the Law of the Sea in Hamburg
(Vice-President 2008–2011).

Luis Valencia-Rodríguez
Lawyer. Member of the Ecuadorean Foreign Service. Minister for Foreign
Affairs of Ecuador (twice). Ambassador of Ecuador to Bolivia, Brazil,
Peru (twice), Venezuela and Argentina. Permanent Representative to
the United Nations. Member of the Committee for the Elimination of
Racial Discrimination and Chairman of this Committee (three times).
Chairman, Delegation of Ecuador to the III UN Conference on the Law
of the Sea. Member, Delegation of Ecuador to the UN Conference on the
Law of Treaties. Member of the Ecuadorean Commission for the settlement
of the frontier with Peru. Former Professor of International Law at the
Central University (Quito) and of Private International Law at the International
University (Quito). Author of texts on international law and on human rights.

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xxxvi Contributors

Roberto Virzo
Researcher of International Law and professor of International Organizations
and International Economic Law at the Faculty of Economy of the Università
del Sannio di Benevento (since 2008). Graduated with honors in Political
Sciences at the LUISS “Guido Carli” University of Rome. Researcher
(2002–2006) and Professor of International Organizations at the School of
Law of the LUISS “Guido Carli” University of Rome (2008/2009). Author
of Il regolamento delle controversie nel diritto del mare: rapporti tra
procedimenti, Padova, CEDAM, 2008.

Rüdiger Wolfrum
Judge of the International Tribunal for the Law of the Sea since 1996,
re-elected in 1999 and 2008, Vice-President 1996–1999; President of
the Chamber for Marine Environment Disputes 1997–1999; President of the
Tribunal 2005–2008. Professor, Faculty of Law, University of Heidelberg
(1993–2013); Director, Max Planck Institute for Comparative Public Law and
International Law, Heidelberg (1993–2013); Member, Board of the Max Planck
Foundation on International Peace and Rule of Law (2012-present). Author
and editor of numerous books and articles on various issues of public
international law, law of the sea, international environmental law, human
rights, United Nations and the Antarctic and editor of the Max Planck
Encyclopedia for Public International Law, ten volumes, 2011.

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 PART 1
Introduction

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 Chapter 1

In Honor of Hugo Caminos

Bernard H. Oxman

There are countless reasons to honor Hugo Caminos. His contributions to

international law and international relations are as varied and numerous as
they are profound: teacher; scholar; lawyer; diplomat; judge. When we try
to analyze and assess the meaning of his accomplishments in each of these
capacities, we discover that we have a sum that transcends its parts. And that
sum reveals virtues that future generations would do well to learn about and
to emulate.
Born in Buenos Aires in 1921, by 1946 Hugo Caminos had earned his law
degree at the University of Buenos Aires and pursued postgraduate studies in
international law at Berkeley, Columbia, and UCLA. He received his doctorate
from the University of Buenos Aires in 1964.
Hugo Caminos the teacher reveals all of the characteristics of his other
careers: in the classroom he is scholarly, lawyer-like, diplomatic, and judicious.
He began his teaching career at the University of Buenos in 1956, where he
became a full professor in 1963, a position he held until being named professor
emeritus in 1988. He never left teaching. Students throughout the world have
benefitted for well over a half century from his insights, his example, and his
devotion. They continue to do so.
Whether attending a full course or a special discourse, whether at the Hague
Academy or at Columbia, Cornell, Georgetown, Miami, NYU, Oxford, Rome,
São Paolo, Santiago, or other universities, his students have learned far more
than the subject matter of his lectures. From his teachings and from his exam-
ple, they have come to see that understanding must rest on a foundation of
curiosity and careful scholarship, that modesty and self-assurance are facets
of the same coin, that goals are best advanced by means that respect the aspi-
rations of others, and that duty and decency are enduring characteristics of a
just social order.
Hugo Caminos began contributing to the corpus of international law
even before he began teaching, with a bibliography of Hans Kelsen in 1949
and a translation into Spanish in 1952 of Kelsen’s influential work, Principles
of International Law. This was followed by a doctoral thesis in 1964 on

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international maritime transport of mail.1 In 1979 the significance of his

contributions was recognized by his election to the august Institut de Droit
international.
Hugo Caminos’s scholarly contributions have never stopped. They address,
in English, French and Spanish, not only the law of the sea but other aspects
of public international law as well, including human rights, environmental
protection, humanitarian intervention, settlement of disputes, and the Inter-
American system. This scholarly work product would be impressive even for
someone who had spent his entire career as a full-time university professor. It
is astonishing for someone who spent many years in demanding legal, diplo-
matic, and judicial posts at a high level. Even as this book goes to press, so does
a new book on straits by its honoree,2 a fitting capstone to his much-admired
Hague Academy course on the subject.3
Hugo Caminos’s careers as a lawyer and a diplomat overlap to a consider-
able extent. In the early 1970’s, he served in the Argentine Ministry of Foreign
Affairs as Director of the Department of International Organizations and then
as Legal Adviser. During that period, preparations for the Third United Nations
Conference on the Law of the Sea were already underway. Both Argentina, and
Hugo Caminos personally, were destined to play an active role in furthering
what was to become one of the most important efforts to advance the rule of
law in international affairs in the post-colonial era.
The success of those efforts was due in no small measure to the deci-
sion of the Secretary-General of the United Nations to appoint a Special
Representative for the Third United Nations Conference on the Law of the
Sea, and to convince Hugo Caminos to take on the responsibilities of Deputy
Director of that office in 1974. Caminos assumed his duties at a time of critical
need for coherence and direction in a law-making endeavor that was as mas-
sive in its geographic and substantive objects as in the number and diversity
of participating government personnel and affected stakeholders. No one
could have written with greater authority and perspective on what it took and
what it meant, after over a decade of negotiation, to achieve agreement on

1 Hugo Caminos, La Unión Postal de las Américas y España y el Transporte Marítimo

Internacional de la Correspondencia (doctoral thesis), School of Law and Social Sciences,
University of Buenos Aires, 1964.
2 Hugo Caminos & Vincent Cogliati Bantz, The Legal Regime of Straits: Contemporary
Challenges and Solutions (in press).
3 Hugo Caminos, “The Legal Régime of Straits in the 1982 United Nations Convention on the
Law of the Sea”, in Collected Courses, vol. 205 (Hague: Hague Academy of International Law,
1987), 9–246.

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In Honor Of Hugo Caminos 5

a comprehensive Convention that addresses basic security, economic, and

environmental interests in the use and protection of over two-thirds of the
planet—a single indivisible Convention to which reservations are not permit-
ted and to which the overwhelming majority of states in all regions are now
party.4
In 1981, Argentina named Hugo Caminos its ambassador to its largest neigh-
bor, Brazil. Even while he held this high diplomatic post, the international
lawyer, scholar, and teacher are evident in his lectures and writings in Brazil
and elsewhere. One would also not be surprised to discover that he discreetly
helped his Brazilian colleagues lay the foundation for Brazil’s decision to ratify
the UN Convention on the Law of the Sea later in the decade, the first coastal
state on the South American continent to do so. Brazil’s decision to accept the
new regime of the exclusive economic zone in the area in which it had previ-
ously claimed a territorial sea doubtless facilitated the decision of other states
in the region and elsewhere to become party to the Convention.5
In 1984 Hugo Caminos was named Under-Secretary for Legal Affairs and
Legal Counsel of the Organization of American States, once again combin-
ing law and diplomacy in the same position. The range of matters with which
he dealt in the decade in which he held this position was very broad. As one
would expect from Hugo Caminos, the experience informs a very substantial
scholarly contribution on the Inter-American system.6 It is a source of abid-
ing satisfaction to this writer that the University of Miami School of Law was
among the institutions that gratefully afforded Hugo Caminos the opportunity
to concentrate his attention on teaching and scholarship in the period follow-
ing his departure from the OAS.
Yet again duty called. Following the entry into force of the UN Convention
on the Law of the Sea on November 16, 1994, the parties proceeded in 1996 to
elect the first members of the new International Tribunal for the Law of the
Sea. Not surprisingly, Hugo Caminos was among them. He served two terms
for a total of 15 years. During this formative period, when prompt release and

4 See Hugo Caminos & Michael L. Molitor, “Progressive Development of International Law and
the Package Deal”, American Journal of International Law, vol. 79, (1985): 871–90.
5 See Hugo Caminos, “Some Considerations on Harmonization of Pre-existing 200 Mile
Territorial Sea Claims in Latin America with Part V of the United Nations Convention on the
Law of the Sea”, in Liber amicorum Günther Jaenicke-Zum 85 Geburtstag, ed. Volkmar Götz,
Peter Selmer & Rüdiger Wolfrum (Heidelberg: Springer, 1998), 465–482.
6 See, for example, Hugo Caminos, “The Role of the Organization of American States in
the Promotion and Protection of Democratic Governance”, in Collected Courses, vol. 273
(The Hague: Hague Academy of International Law, 1998), 103–238.

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6 Oxman

provisional measures requests dominated its docket, the Tribunal established

its reputation for timely, efficient, and effective disposition of cases and expert
interpretation and application of the Convention and related rules of interna-
tional law. There can be no doubt that Hugo Caminos played a significant part
in shaping the new Tribunal. He did so quietly and discreetly, as would be his
wont. He was usually in the majority. Only once did he formally dissent from a
judgment, objecting to a jurisdictional dismissal on grounds not advanced by
the respondent.7 He eschewed lengthy separate opinions, typically contenting
himself where need be with a concise joint declaration or opinion in which a
significant number of judges joined together.
Hugo Caminos the mentor was honored even by the decision on who would
succeed him on the Tribunal. The States Parties elected another distinguished
Argentinian, one in whose career Hugo Caminos had long taken an active
interest. That Judge Elsa Kelly is also the first woman elected to the Tribunal
is doubtless a source of additional satisfaction to a man who was ahead of his
time in promoting the careers of women in international law and diplomacy.
And so continues the remarkable journey that is the career of Hugo Caminos.
According to Plutarch, Socrates said he was not an Athenian or a Greek but
a citizen of the world. Hugo Caminos transcends the dichotomy. He serves and
honors Argentina. He serves and honors the Americas. He serves and honors
the world.
It is right and fitting that through this volume his friends and colleagues
from Argentina, from the Americas, and from the world should honor Hugo
Caminos.

7 Joint Dissenting Opinion of Judges Caminos, Marotta Rangel, Yankov, Yamamoto, Akl, Vukas,
Marsit, Eiriksson and Jesus, in The “Grand Prince” Case (Belize v. France), ITLOS Case No. 8,
Judgment (2001).

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 PART 2
Historical Perspectives

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 Chapter 2

The Contribution of Andrés Bello to the

Law of the Sea in the Chilean Civil Code

Jeannette Irigoin Barrenne1

Introduction

To study the history and development of international law, especially in what

refers to the American continent and the special problems affecting our coun-
tries with their peculiar characteristics, you must obligatory address to the
brilliant work of Andrés Bello. His contribution was not only in the develop-
ment of the general theory of contemporary international law, but also in the
design of Latin American foreign policy and the empowerment of its political
institutions.
In the book Principles of International Law, he always proclaimed our rights
as sovereign nations facing the interests of the domain of European countries.
He was also able to guide the study of these subjects in a framework where
the new world countries were recently incorporated into the group of inde-
pendent Nations and where the rules of international law only considered the
needs and convenience of European countries considering subjects and prob-
lems that were often distant of our American reality.
It is said that Andrés Bello is, perhaps, the most complete man of letters pro-
duced by our America and a kind of comparison has been established between
the work of Bello and the work of Thomas Jefferson. In this concern, there is
no doubt that Bello exceeds the comparison, because Jefferson was fundamen-
tally a brilliant politician, but Bello “rises above politics—without disregarding
it—by diving it into the large universe of his scientific curiosity and rooting it
with the other concerns of human knowledge”.2

1 Director of International Law Affairs, National Academy of Political and Strategic Studies,
(ANEPE) Ministry of Defense, Chile. Professor of the University of Chile School of Law.
Member of the International Humanitarian Fact Finding Commission. Member of l’Institut
de Droit International.
2 Mario Barros van Buren, “Andrés Bello y la Cancillería chilena”, Revista ATENEA, Nº 443–444
(1981): 229.

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10 Irigoin Barrenne

Andrés Bello was sent to London in 1810 by the conservative Board of

Venezuela in an integrated mission with Simón Bolívar and attorney Luis López
Méndez and remained in that city until his trip back to Chile in 1829. During his
permanence in the english capital, he read avidly the works of Grotius, Vitoria,
Suarez, Puffendorf and other important authors, following closely the events
of European policy, discusses with wisdom and serenity the international
period which elapses between the Napoleonic wars and the French restoration
and begins his diplomatic life on June 1th of 1822, when the Chilean Minister
Irisarri designated him as Secretary of the Legation in London. In 1823, with
the fall of Bernardo O’Higgins, a parenthesis is opened in his diplomatic career
which ended in November of 1824, when the Government of Colombia wel-
comes him as Secretary of their Legation. At this time he starts starts writing as
a practical internationalist, of the Chilean foreign policy and at the same time
he demonstrates to be a great analyst that in many ways caused an evolution
of the doctrine of international law through theoretical concepts that prevail
until now. In this sense it can be argued with no doubt that “Bello was the first
scientist in modern international law”.3
Even if he was primarily inspired by the work of Vattel, he didn’t follow a sin-
gle school of knowledge and maintained an eclectic position by assimilating
the views of various authors, process that made him achieve an important bal-
ance. He created his own school of thought, with a clear line of independence.
His theoretical work, the “Principios de Derecho Internacional”, was the first
complete and systematic treaty on this subject in Latin America and it’s was
studied in Chile since 1834 at the Instituto Nacional and later at the University
of Chile. This work was published for the first time by the printing house ‘La
Opinión’ in Santiago with the title Principio de Derecho de Jentes in 1832, the
second edition was printed in Valparaíso in 1844 under the title of Principios
de Derecho Internacional and reprinted in Paris by the printing house Gramier
Hnos. It was published later in other Latin American countries and translated
into English, French and German.
It is in this important work where we can find the present consecrated prin-
ciples of law of the sea, giving special importance to the contemporary delimi-
tation of the maritime spaces that has been developed through concepts
provided by Andrés Bello more than one hundred and thirty years ago. It is to
these legal institutions that we want to dedicate the present article.

3 Francisco Orrego Vicuña, “La labor internacional de Andrés Bello”, Revista de Derecho Público
Nº 4 (septiembre 1965): 67–83.

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The Contribution of Andrés Bello to the Law of the Sea 11

The Territorial Sea and the Contiguous Zone

A fundamental aspect of the codification work of Andrés Bello is reflected

in the Chilean Civil Code of 1855, legal instrument to which he dedicated
24 years of his very productive intellectual activity. The interesting thing is that
this work was not limited to encode only the civil law, but it also embodied
in addition some precepts of a clear international content. For example, the
article 593 of the Civil Code of the Republic of Chile establishes that:

The adjacent sea, up to the distance of one marine leagues, measured

from the lowest brand line, is territorial sea and national domain, but the
right to police, for objects relating to the security of the country and
the enforcement of financial laws extends to the distance of four marine
leagues measured in the same way.

Let us remember that during the 16th and 17th centuries uncertainty reigned
about the limits of the territorial sea, since for some persons it would extend
up to the limit of visual range and for others just up to the length of a can-
yon shot. Only in the 18th century this last concept was imposed, especially
because of the category formulation made by the jurist Dutch Van Binkershoek
in his work “Dominio Maris” in 1703 and in the Questiones Juris Public” in 1737,
work that gave significance and new status to the notion that the coastal State
is sovereign of the sea that bathes its coasts to the extent of the canyon, even if
there where no canyons or could not be placed one. In 1872, Ferdinand Galiano,
based on the ballistics time data, identified the rule of the canyon shot within
the three nautical miles, that was the reach that the artillery had at that time.
The Article 1 of the Convention on the Territorial Sea and Contiguous Zone
made at the Conference on the Law of the Sea at Geneva in 1958, lays down
that: “The sovereignty of a State extends, outside its territory and internal
waters, to an area of adjacent sea to its coasts designated as the territorial sea”.
This provision strengthens the idea that the rights of the coastal State over
the territorial sea is no different in its nature from the sovereignty that the
State practices on the other parts of its territory. Territorial sea is a part of
the territory of the State and the decisive reason for this recognition of State
sovereignty on the sea adjacent to its coasts is that it is essential for its safety
and for the protection of its legitimate interests.
Despite several attempts to determine the breadth of the territorial sea
which had not been achieved in a codification conference in 1930 under the
auspices of the League of Nations, at the Geneva Sea of the Law Conference

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12 Irigoin Barrenne

of 1958 no proposals were approved on this topic, even though it can be con-
cluded that no State had objections to the three-mile minimum determined
in the Chilean Civil Code and laws of other countries that followed the Bello’s
model.
There was an attempt to reach an agreement on the problem of the
breadth of the territorial sea for the second time at the Geneva Law of the Sea
Conference of 1960 sponsored by the United Nations. Even when a formula
presented by the United States and Canada proposed to extend it to six nauti-
cal miles and granted States the right to establish a zone of exclusive fisheries
on the high seas adjacent to its territorial sea up to a maximum twelve miles,
it failed to be approved by the required number of two-thirds of the partici-
pating States for only one vote. The proposal only was codified in law on the
United Nations Third Conference on the Law of the Sea in which was signed
the United Nations Convention on the Law of the Sea of 1982 in Montego Bay-
Jamaica. This instrument provides that:

Article 3 “breadth of the Territorial Sea: Every State is entitled to establish

the breadth of its territorial sea up to a limit not exceeding twelve nauti-
cal miles from baselines determined in accordance with this Convention”.

In relation to the contiguous zone, the article 593 of the Chilean Civil Code dis-
tinguishes between an area of territorial sea of one league (that is, three miles
measured from the lowest tide line) and a contiguous zone of four marine
leagues (12 nautical miles), that in fact has a nine-mile extension because the
first three are an integral part of the Chilean territorial sea.
Even though this new maritime space was not given at the time a special
name:

due to its essential characteristics there is no doubt that this sea area
responded to a new space concept, different to the territorial sea and the
high seas, that until then constituted the Summa Divisio of the sea in
accordance with the international maritime law prevalent at the time.4

The Convention on Territorial Sea and Contiguous Zone in its article 24, No. I,
consecrates the statute by saying that

4 Jaime Harris Fernández, “Andrés Bello: su aportación al desarrollo del Derecho del Mar
en América Latina”, Revista de Derecho (Valparaíso: Ediciones Universitarias de Valparaíso,
1982), 518.

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The Contribution of Andrés Bello to the Law of the Sea 13

in a zone of high seas adjacent to the territorial sea, the coastal State
could adopt the necessary control measures: a) to prevent infringements
of their customs, tax, immigration and sanitary police control laws that
could be committed in its territory or territorial sea; b) to suppress viola-
tions of those laws committed within its territory or territorial sea.

In this way, the contiguous zone is part of the high seas and in this zone the
coastal State does not possess sovereign fullness competition, but a few rights
listed individually. Article 24 does not include military security or fishing
rights. According to the 1960 Convention, States can set the contiguous zone
up to twelve-miles extension, limit that was consecrated by Andrés Bello in the
Chilean Civil Code of 1855.
In the United Nations Law of the Sea Convention of 1982, the article 33
establishes that the contiguous zone can’t be extended beyond 24 nautical
miles counted from the baselines from which the breadth of the territorial sea
is measured.

The Exclusive Economic Zone

The geographical characteristics of Chile have determined that our country

may have an always increasing interest in the development of the Law of the
sea and in this framework, Andrés Bello was the forerunner of the need to pro-
tect our marine resources hwn he stated the following:

But, under another aspect, the sea is similar to the Earth. There are many
marine productions that are limited to certain places: because, as well as
the lands do not give all the same fruits, not all seas will supply the same
products. Corals, pearls, amber, whales are not placed but in limited por-
tions of the ocean, which are impoverishing every day and finally will run
out . . .: and no matter how generous can be the fecundity of nature in
other species, no one may doubt that the concurrence of many peoples
would make fishing more difficult and less fruitful and would end extin-
guishing them, or at least putting them away from one type of seas
to others . . . Not being endless, it seems that it would be lawful for the
people to appropriate the lands where they currently stay and that are
not possessed by another.5

5 Andrés Bello, Principios de Derecho Internacional, en Obras Completas (Santiago: Universidad

de Chile, 1836), See, Francisco Orrego Vicuña, Chile y el Derecho del Mar (Santiago: Editorial
Andrés Bello, 1972), 399.

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14 Irigoin Barrenne

Therefore, with this idea Bello tried to consacrate in the Chilean Civil Code
not only the concepts of Territorial Sea and Contiguous Zone, but also, in book
number II, aimed at “the goods, their domain, possession, use and enjoyment”,
Article 585 establishes that high sea is a common space to all States, whose use
and enjoyment are regulated by the internal domestic laws among the people
of a nation “and by international law, among different nations”.
In the first section we analyzed article 593 and now we point out the value
of the following article: Article 594 defines the concept of beach; Article 597
stipulates the domain of the State on the new Islands formed in the territorial
sea or in rivers and navigable lakes; Article 598 establishes that the sea and
beaches are national assets for public use, whose use and enjoyment should be
regulated by the domestic legislation; Article 604 refers to the norms to access
to ports of national and foreign ships; and Article 611, on fishery, specifically
argues that in the territorial sea “only can fish Chileans and foreigners domi-
ciled”. This last article is one of the few of our legislation that distinguishes
between Chileans and foreigners making exceptions to the general rule of arti-
cle 14 of the Chilean Civil Code which provides that “The law is obligatory for
all inhabitants of the Republic, including foreigners”.6
With this brief mention of the main rules of the Chilean Civil Code and
above all with the initial citation of this section, it can be appreciated that
Andrés Bello may be considered a visionary of this new institution of the Law
of the Sea, which is the Exclusive Economic Zone, starting with the process
that breaks the classical dualism between territorial sea and high sea.
For developing countries, the economic interest to take an advantage of liv-
ing resources in adjacent waters to their coasts of the sea meant a constant
struggle with countries that have large fishing fleets. Thereby the importance
of unilateral extension acts of sovereignty over the resources began with the
initiative of Chile through President Gabriel González Videla statement of
23 June 1947 after the Truman Proclamation on the Continental Shelf of 1945.
In this statement, President González Videla proclaims the protection and con-
trol over the continental socket and the adjacent sea to the distance of 200
nautical miles, what meant the recognition of the right of coastal States to pro-
tect, conserve, regulate and monitor the exploitation of all the known natural
resources or those to be discovered in the future.7

6 Id.
7 See, Francisco Orrego Vicuña & Jeannette Irigoin Barrenne, ed., La aplicación de la Zona
Económica Exclusiva y el régimen de pesca (Santiago: Instituto de Estudios Internacionales,
Universidad de Chile, 1982), 149. See, Edmundo Vargas Carreño, América Latina y los
problemas contemporáneos del Derecho del Mar (Santiago: Editorial Andrés Bello, 1973), 159.

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The Contribution of Andrés Bello to the Law of the Sea 15

This new doctrine took shape in the “Santiago Declaration” that was signed
by Chile, Peru and Ecuador in the first Conference on Conservation and
Exploitation of the Marine Resources in South Pacific in 1952 (instrument that
was signed by Colombia in 1980) an that created the Permanent Commission
for the South Pacific.
Chilean jurist Edmundo Vargas Carreño presented to the OAS Inter-
American Juridical Committee a thesis on ‘patrimonial sea’ that was no doubt
based on the doctrine of Andrés Bello, and that was accepted in the Confer-
ence of the fifteen countries of the Caribbean Sea in Santo Domingo in June
1972 and by the opinion of the Inter-American Juridical Committee in 1973.
In this proposal the patrimonial sea was given a condition of an in-between
area with precise competency of the coastal State in it and capacity to make
compatible the legitimate rights of the international community in the field
of communications and the economic aspirations of coastal States. It was was
welcomed with the only dissenting opinion of the Mexican judge Luis Padilla
Nervo in the case concerning the competence of the International Court of
Justice in the field of fisheries between the German Federal Republic and
Iceland (I.C.J. Reports, 1972, p. 44).8
In parallel to the establishment of this 200-mile maritime space in Latin
America, the African-Asian Advisory Committee, that had been represented
by Senegal as an observer in the Latin American meeting on aspects of the
Law of the Sea held in Lima in August 1970, passed a resolution in the same
direction.
A few months after the coordination measures adopted by the Montevideo
Declaration on the Law of the Sea of May 8, 1970, there had been unilateral
proclamations of different extension before the extended jurisdiction over
maritime zones. In the frame document of the 12º session of the African-Asian
Consultative Committee held in Colombo-Sri Lanka in January 1971, appears
the notion of zone of exclusive economic jurisdiction but doesn’t determine
clearly the maximum width of the zone. In June 1972, a document presented
by Kenya to a Regional Seminar on the Law of the Sea for African States held in
Yaoundé—Cameroon defined more clearly the concept and the main recom-
mendations were very similar to the Latin-American declarations of Lima and
Montevideo.9

8 See Edmundo Vargas Carreño, Latin America and the contemporary problems of the law of the
sea, (Santiago: Editorial Andrés Bello, 1973), 159.
9 See, Julio César Lupinacci, “The legal nature of the exclusive economic zone in the light
of the Conference on the law of the sea”, in The exclusive economic zone: a Latin American
perspective, ed. Francisco Orrego Vicuña (Santiago: Patmos/University of Chile, 1982), 191.

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16 Irigoin Barrenne

Consequently, the creation of the exclusive economic zone consacrated in

the United Nations Law of the Sea Convention of 1982, has its remote anteced-
ent in the Chilean Declaration of 1947, it is strengthened as a multilateral instru-
ment at the Santiago Declaration of 1952 subscribed by Chile, Ecuador and
Peru, it is developed through unilateral declarations of various Latin American
States and in the resolutions of Montevideo and Lima in 1972, gets the sup-
port of the group of African countries during 1972 and 1973 and the endorse-
ment of four major Western countries—Australia, Canada, New Zealand and
Norway—and finally it is consolidated by the consensus achieved during
the negotiation of the III UN Conference on the Law of the Sea (UNCLOS),
between the years 1973 and 1982. Therefore, it is a conventional customary
norm of contemporary international law because it is unanimously accepted
as an institution by 160 countries. This wide acceptance was proven by the fact
that in the sessions to approve the Convention there was no discussion about
the existence of the exclusive economic zone but only about the problems of
its legal nature and the legal authority of the coastal State.
The concept of the exclusive economic zone, which is essentially oriented
to the administration and optimal use of the resources in the 200 miles sea
area, can find its essential antecedent in the visionary conception of Andrés
Bello who in 1832 stated that given the fact that some ocean resources were not
endless, “it would be legal for the people of a determined place to appropriate
the places where they can find the resources and that are not owned by other”.

Final Considerations

Takin into account the background we have summarily reviewed, it can be

concluded with all justice that Andrés Bello was one of the most important
precursors of the concept of contiguous zone: First, for having thought of it
more than one century in advance of its international recognition in the I UN
Conference on the Law of the Sea in 1958, and second, for having been its prin-
cipal diffuser in Latin America through the enormous influence that exercised
the Chilean Civil Code in the other civil codes.
The merit of Andrés Bello does not wear out exclusively in this area of his
work. He was also the first American internationalist to shape a kind of think-
ing, a concept that served as sustenance for the further development in Latin
America of the law of the sea and that relates to the legitimate right that assists
coastal States to preserve the existing maritime resources off its coast. Even
though he did not materialize this idea in an article of the Chilean Civil Code,

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The Contribution of Andrés Bello to the Law of the Sea 17

it remains valid his visionary view about what should be a just order in the
regulation of maritime areas and the exploitation of their resources.
The mayor value of Bello’s thought was its ability to measure a particular
dimension of State sovereignty, which he applied to the maritime spaces.
He was one of the first promoters of the concept of “projection of special-
ized competences”, basic concept on Latin American claims and which today
has general acceptance to explain the basis of the new law of the sea and the
legal nature of the “exclusive economic zone” enshrined in the United Nations
Convention on the Law of the Sea of 1982.

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 Chapter 3

Hugo Grotius and the Law of the Sea

M.C.W. Pinto

From the pages of his work, the picture emerges of a man absorbed in
his ideals, of a devout and profound seeker after truth and right, and of a
passionate and unswerving advocate of himaneness and conciliation—
a picture borne out by his life.
Arthur Nussbaum, A Concise History of the Law of Nations

Hugo Grotius, Huigh de Groot to his countrymen, was born into a family of con-
siderable wealth and influence on 10 April 1583, at Delft in The Netherlands.
Prodigiously talented, he composed poetry in Latin and Greek from the age of
seven and was admitted to the practice of law when he was 16. At 24 Grotius
was appointed Advocate-General of the provinces of Holland, Zeeland and
Friesland (a position said to have been similar to that of Attorney-General in
Britain or the United States) and in 1613, when he was 30, he was appointed
Pensionary (principal representative and negotiator)of Rotterdam. At a time
of acute tension between, on the one hand, Prince Maurits and the Calvinist
majority of the United Provinces of The Netherlands, who believed in the reli-
gious doctrine of the predestination of souls and on the other, the citizens of
the Province of Holland, who held more liberal views, Grotius offered vigor-
ous support to the latter, bringing the country to the brink of civil war, and
incurring thereby, the wrath of the Prince. Grotius was tried and sent to prison,
from where he made a dramatic escape, going into exile in France. Grotius’
reputation as philosopher and scholar had by then spread throughout Western
Europe, and when invited by the Swedish King Gustav IV to be his ambassador
in Paris,he accepted the position. But as scholar and idealist, it seemed that life
and work as a diplomat did not engage him. After his recall by Sweden, Grotius
decided to return to Holland, but the ship on which he sailed was wrecked on
the Pomeranian coast. Grotius survived, but while on the way to Lübeck in an
open cart, exhausted and alone, he died on 29 August 1645. The life that had
begun with so much promise, ended in tragedy.
Grotius grew to manhood during the last of the European religious wars,
the Thirty Years War (1618–1648). As a humanist and idealist the carnage and
destruction wrought by the conflict would certainly have inspired him to

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_004

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Hugo Grotius And The Law Of The Sea 19

write the two important works1 for which he is justly famous: De Jure Praedae
(On the Law of Prize, 1604–5, which included, as Chapter XII, his essay Mare
Liberum)2 and De Jure Belli ac Pacis (On the Law of War and Peace, 1625).3
The second of these, considered his masterpiece, comprises three books.
Book I is an inquiry into the lawfulness of war, and the nature of sovereign
power; Book II deals with acquisition and jurisdiction over property, the con-
clusion and interpretation of treaties, the rights of embassies, the obligation
to make reparation for damage caused by injury, what constitutes an unjust
war, and precautions against rashly engaging in war; Book III is a detailed
treatment of the conduct of a lawful war, and includes obligations toward non-
combatants and neutrals, the conclusion of treaties of peace, the institution of
arbitration, and the detention and redemption of hostages and pledges.4
The work concludes with a fervent admonition that throughout any war, the
objective of peace should be kept in mind, and to that end, the preservation
of good faith:

For good faith, in the language of Cicero, is not only the principal hold by
which all governments are bound together, but is the key-stone by which
the larger society of nations is united. Destroy this, says Aristotle, and you
destroy the intercourse of mankind.5

On his masterwork De Jure Belli ac Pacis rests Grotius’ right to be recognized as

the “Father of the Modern Law of Nations”. Drawing on Roman Law sources,

1 For a list of the principal works of Grotius, see W.S.M. Knight, The life and work of Grotius
(London, 1925) p. 291; for a more extensive list, H.C. Rogge, BIbliotheca Grotiana, 1883).
2 For references to the publication and translation of this work, which includes Mare Liberum
as Chapter XII, see The Freedom Of The Seas, A Dissertation By Hugo Grotius, translated
by Ralph van Deman Magoffin, pp. vi–ix (Oxford University Press, New York, 1916). The
English translation of Mare Liberum often referred to in this essay is that by Magoffin, and is
throughout abbreviated to “ML”.
3 The English translation entitled The Rights Of War And Peace to which reference is made
in this essay is by A.C. Campbell and published in the series Universal Classics Library by
M. Walter Dunne, New York and London, 1901, and is abbreviated to “DJB (Campbell)”; and to
Prolegomena translated by Francis W. Kelsey, New York (Reprint) 1964, abbreviated to “PRO
(Kelsey)”.
4 For recommended analyses and discussions of Grotius’ works see Arthur Nussbaum,
A concise history of the law of nations (New York: The MacMillan Company, 1954), Chapter IV,
n. 134.
5 DJB (Campbell): 417.

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20 pinto

familiar with the theological teachings of St. Augustine and St. Thomas
Aquinas, as well as work of the Spanish scholars Vitoria, Suarez and Ayala and
the Italian Gentilis, Grotius’ conception of the Law of Nations was founded
neither on Catholic theology, nor notions concerning relations among states
of the Empire of which Holland was a part.

Elements of Grotius’ Thought

For Grotius, the law binding on States is derived from two sources: the Law of
Nature and the Law of Nations, which are seen as having the possibility con-
stantly to interact with one another. The Law of Nature has its roots in the
social nature of man:

. . . among the traits characteristic of man is an impelling desire for soci-

ety, that is for the social life . . . this social trend the Stoics called ‘sociable-
ness’ . . . This maintenance of the social order . . . which is consonant with
human intelligence, is the source of law properly so-called. To this sphere
of law belong the abstaining from that which is another’s, the restoration
to another of anything of his which we may have, together with any gain
which we may have received from it; the obligation to fulfill promises, the
making good of loss incurred through our fault, and the inflicting of pen-
alties upon men according to their needs.6

According to Grotius, it is the free will of God that has implanted this charac-
teristic ‘sociableness’ in man. But having made this statement firmly acknowl-
edging the Creator’s central rôle and lending his work a tone, which must have
been re-assuring in its time, of pious orthodoxy, the focus shifts at once to Man:
for this ‘free will of God’ is something “to which beyond all cavil our reason tells
us we must render obedience”.7 (emphasis added). Again Grotius says:

Natural right is the dictate of right reason, showing the moral turpitude,
or moral necessity, of any act from its agreement or disagreement with a
rational nature, and consequently that such an act is either forbidden or
commanded by God, the author of nature.8

6 PRO (Kelsey), paragraphs 6–8.

7 PRO (Kelsey) paragraph 12.
8 DJB (Campbell), Book I, Ch. I.x.

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Hugo Grotius And The Law Of The Sea 21

The Law of Nature, while related to God, is provided with a secular foundation
in human reason. It is a law without sanctions, effective because its essential
rationality makes obedience to it expedient, and because it is re-inforced
by actions rooted in reciprocity and solidarity.9 As to the second source,
Grotius says:

. . . by mutual consent it has become possible that certain laws should

originate as between all States, or a great many States; and it is apparent
that the law thus originating had in view the advantage, not of particular
States, but of the great society of States. And this is what is called the law
of nations, whenever we distinguish that term from the law of nature.10

While the Law of Nature, being based on reason, is universal and unchanging,
the Law of Nations, or ‘positive law’, being based on the consent of States, may
vary from age to age from place to place. The Law of Nature, deriving from the
‘sociableness’ of man, is the means through which the highest human values
of justice, fairness, morality and goodness enter the law binding on States, and
temper the merely expedient to which the Law of Nations could, and in the
time of Grotius often did, tend. That Grotius strove to curb such a tendency
by emphasizing the moderating influence of the Law of Nature is seen in his
firm rejection of popular aphorisms with pretensions to ‘realism’, such as that
in the case of a king or imperial city “nothing is unjust which is expedient”; or
that “the administration of a State cannot be carried on without injustice”;
or, again, that “deception, harshness and injustice are the regular business of
battles”.11
Evidence of both the Law of Nature and of the Law of Nations are to be
found in custom or the recurring affirmation of principle. While no clear hier-
archy is established between them, it seems that the Law of Nations is seen as
complementary to the Law of Nature, for Grotius says: “For whatever cannot
be deduced from certain principles by a sure process of reasoning, and yet is
closely observed everywhere, must have its origin in the free will of man.”12

9 PRO (Kelsey), paragraphs 21–3.

10 PRO (Kelsey), paragraph 17.
11 PRO (Kelsey), paragraph 3.
12 PRO (Kelsey), paragraph 40.
H. Lauterpacht, “The Grotian tradition in international law”, 26 British Yearbook of
International Law (1946), at p. 28 cites a passage from the judgement of Mr. Justice Story
in La Jeune Eugénie affirming the role of the Law of Nature:

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22 pinto

The Law of Nature, with its roots in the social character of man, and call-
ing continually for the application of morality and reason lies at the heart of
the Grotian legacy. Its essentials are set forth in the passage cited above.13
Grotius’ elaboration of the concept, however, contains derived principles of
far-reaching significance:

(1) the sovereign equality of States and the illegality of the subjugation and
exploitation of one State by another, and;
(2) the economic and military inter-dependence of States.

Asserting first the unity of mankind and the subjection of all alike to law, he
goes on to denounce the illegality of the use of force by one State to subjugate
another and despoil it of its property, thus placing all States, regardless of reli-
gious belief and level of civilization, on an equal footing. He says:

[God] had not separated human beings, as He had the rest of living
things, into different species and various division, but had willed them to
be of one race and to be known by one name . . . He had drawn up certain
laws . . . these laws were binding on great and small alike . . .14

Amplifying one of his basic natural law concepts he says:

Cicero has said, that it is contrary to natural justice, for one man to
improve his own advantage at the expense of another, and in another
place, that nature does not allow us to increase our resources, riches and
power, from the spoils of others. There is so much of equity in this saying,
that many legal writers have made it the basis of their definitions, to

“It may be unequivocally affirmed that every doctrine, that may be fairly deduced by
correct reasoning from the rights and duties of nations, and the nature of moral obli-
gations, may theoretically be said to exist in the law of nations; and unless it be relaxed
or waived by the consent of nations which may be evidenced by their general practice
and customs, it may be enforced by a court of justice whenever it arises in judgement.”
(2 Mason 409, 448).
13 Lauterpacht, op. cit., n. 12, p. 9, concludes:
“On the whole, we are probably right in assuming that the most frequent use of the
notion of the law of nature by Grotius is what we should describe as general principles
of law arrived at by way of a generalization and synthesis of the principal systems of
jurisprudence.”
14 ML, Preface (p. 1).

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Hugo Grotius And The Law Of The Sea 23

supply the deficiency of the strict letter of the law, always appealing to
equity as the most sure and clear rule of action.15

He rejects the claims of the Portuguese to sovereignty over India, Ceylon

and other Asian countries by discovery or any other means. They were not,
he points out, res nullius, but had their own kings, their own governments,
their own laws, and their own legal systems. They were “not the chattels of the
Portuguese, but are free men and sui juris”.16 He quotes Thomas Aquinas in
support of the view that religious belief

does not do away with either natural or human law from which sover-
eignty is derived. Surely it is heresy to believe that infidels are not masters
of their own property; consequently to take from them their possessions
on account of their religious belief is no less theft and robbery than it
would be in the case of Christians.17

In a vigorous defence of the right of non-Christian States to live in peace and

free from interference by foreign powers, he recalls:

Plutarch said long ago that it was greed that furnished the pretext for
conquering barbarous countries, and it is not unsuspected that greedy
longing for the property of another often hid itself behind a pretext of
civilizing barbarians. And now that well-known pretext of forcing nations
into a higher state of civilization against their will . . . is considered by all
theologians, especially those of Spain, to be unjust and unholy.18

Although Grotius had been commissioned by the Netherlands East India

Company to defend its right to explore and trade anywhere in the world, it is
not difficult to imagine that his liberal personal views as well as his patriotic
fervor might have fuelled his enthusiasm for the task of demolishing the arro-
gant and extravagant claims of Portugal and Spain that were based entirely on
the presumed authority of the Catholic Church.19

15 DJB (Campbell), Book II, Ch. X.ii.

16 ML, Ch. IV (pp. 11, 21).
17 ML, Ch. II (p. 13).
18 ML, Ch. II (p. 14).
19 By 1456, the papal decrees (bulls) of Popes Nicholas and Calixtus had granted to Portugal
exclusively the lands of non-Christians seized by it, and also legal authority over other
Catholics in all the lands and seas within the territory so granted. Accordingly, no

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24 pinto

Finally, and most significantly, he asserts, as the very foundation of his thesis
in Mare Liberum, that: “Every nation is free to travel to every other nation, and
to trade with it.”(ML, Ch. I, p. 7).
It could be suggested then, that the following principles may be derived
from these passages by necessary implication:

(1) Human beings constitute a unity, and each has legal rights and obliga-
tions equal to the other.
(2) One human being cannot (in the absence of agreement) as from superior
right, increase his resources by taking from another. It is the function of
ownership to protect private property.
(3) Sovereignty is derived from human law. Its function is to protect a State’s
territory in the way that ownership protects private property, and it does
so to an equal extent with respect to each State.
(4) Every State has equality with all others in the right of navigation for the
purpose of trade.
(5) Every State has equality with all others in matters pertaining to trade.
Accordingly, the foregoing passages (which are cited as examples
from among others of similar import in Grotius’ work) compel us to con-
clude that they are based on the notion of the sovereign equality of States;
that that notion was among the fundamental elements of Grotius’
thought.

other Catholics (which, as has been pointed out, at that time included all Europeans)
were permitted to sail the ocean near the newly-discovered African lands for trade or
exploration, on pain of excommunication. In 1479, the Treaty of Alcàçovas between
Portugal and Spain allocated to Portugal, with papal sanction, “all lands discovered and to
be discovered . . . which might be found and conquered from the Canary Islands beyond
towards Guinea”, and acknowledged Spanish sovereignty over the Canary Islands, at
the time the subject of dispute between the two countries. Finally, three papal bulls of
Rodrigo Borgia, as Pope Alexander VI in 1493, purported to divide the world between
Spain and Portugal along a specified line of demarcation stretching from Pole to Pole in
the middle of the Atlantic Ocean. All lands discovered and to be discovered west of the
line would belong to Spain, while all land east of the line would belong to Portugal. No
ships of other nations would have a legal right to sail in those areas without specific prior
consent from either Spain or Portugal, a breach of the prohibition being punishable by
excommunication. For a detailed and lively account of the period, see Stephen R. Bown,
“1494—How a Family Feud in Medieval Spain Divided the World in Half”, St. Martin’s
Press, New York (2011), especially Chapter 6.

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Hugo Grotius And The Law Of The Sea 25

Dickinson20 lists a distinguished array of writers who have concluded that

the “principle of State equality” was in fact part of the Grotian tradition, but
proceeds to adduce reasons why they were wrong, and himself asserts that:
“There was nothing in Grotius’ conception of the international society which
made the equality of States an essential principle”. Indeed, elsewhere he says
that “Publicists have fallen into a careless way of attributing to Grotius theories
which he had no part of establishing . . .”
It is possible to ascribe too much significance to the fact that Grotius did
not develop a general theory on a subject so important and related to his
area of interest as the equality of States. There could be many reasons why he
refrained from doing so other than that he did not subscribe to such a theory.
Grotius wrote in order that his work should be read, and should be influential.
His style, often that of the advocate, rather than of the scrupulously objective
scholar, seems to indicate this. Indeed, the enduring attractiveness of his work
may be related to that very style of presentation. He would have been careful
not to alienate the intellectuals of his day by appearing to espouse theories the
validity of which may have impressed him but which might nevertheless have
seemed dangerously radical. Thus, while giving the Law of Nature a founda-
tion in reason, he is careful, taking into account the religious sensitivities of
the time, to make the whole spring from the ‘free will of God’. Again, while his
abhorrence of war is patent, he is careful not to place it outside the pale of law,
and in so doing, at once ignore the realities of his world and alienate a powerful
military class most of whom belonged to ruling houses. He prefers instead to
attempt to temper the barbarous practices of the battlefield by influencing the
minds of the generals through suggesting rules of law that would allow them
to rationalize the harshness of their profession with their social conscience.
It seems likely then, that Grotius, familiar with bitter doctrinal controversies
such as those concerning the predestination of souls, would choose to avoid
the criticism and argument which might have developed around a general
theory of the equality of States, and engendered a prejudice against his work
in influential quarters, inhibiting its penetration and acceptance. Would it not
have appeared to him preferable to avoid the perils of expounding the prin-
ciple in which he believed, and yet further its recognition by building it into
the foundation of a generally popular piece of advocacy—Mare Liberum? Had
that been Grotius’ intention, he was more than partially successful in transmit-
ting it to us.

20 E.D. Dickinson, The equality of States in international law (Cambridge: Cambridge

University Press, 1920), 34–68.

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While States are sovereign, the external exercise of that sovereignty in rela-
tion to other States is subject to law, and is not absolute. It is not to the advan-
tage of any State, however powerful and self-sufficient, to act in a manner
inconsistent with its obligations as a member of the society of States. In asser-
tions such as these we may discover the foundations of a principle perhaps
universally held, but acknowledged only in times of crisis like our own: the
inter-dependence of States:

. . . great States, since they seem to contain in themselves all things

required for the adequate protection of life, seem not to have need of that
virtue which looks toward the outside, and is called justice.
But . . . law is not founded on expediency alone, there is no State so
powerful that it may not some time need the help of others outside itself,
either for purposes of trade, or even to ward off the forces of many foreign
nations united against it. In consequence we see that even the most pow-
erful peoples and sovereigns seek alliances, which are quite devoid of sig-
nificance according to the point of view of those who confine law within
the boundaries of States. Most true is the saying that all things are uncer-
tain the moment men depart from law.21

The principle of the inter-dependence of States is, by implication, supported

by the principles of reciprocity and solidarity which themselves have their ori-
gin in the social nature or ‘sociableness’ of man.
Three elements of Grotius’ thought might be suggested:

(1) the subjection of all States to rules of law, which are the product of an
inter-action between the Law of Nature and the Law of Nations;
(2) prohibition of the subjugation and exploitation of one State by another
which, in the light of Grotius’ assertions of the unity of the human race,
emphasizes the sovereign equality of States; and
(3) the inter-dependence of States in economic and security matters.

21 PRO (Kelsey), paragraphs 21–22. Compare with following passage from Suarez, Tractatus
de Legibus ac Deo Legislature (1612), Book 2II, Ch. 19, paragraph 5, quoted by Lauterpacht,
op. cit., 20:
“Mankind, though divided into numerous nations and states, constitutes a political
and moral unity bound up by charity and compassion; wherefore though every repub-
lic or monarchy seems to be autonomous and self-sufficing, yet none of them is, but
each of them needs the support and brotherhood of others, both in a material and a
moral sense. Therefore they also need some common law organizing their conduct in
this kind of society.”

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Hugo Grotius And The Law Of The Sea 27

In each of these elements we may discern the residues of morality attributable

to the influence of the Law of Nature. In a world of States in which colonial
exploitation has left a sense of grievance and the motivation to construct a
new world order in which a measure of social justice might be assured, such
elements as these have an increasingly normative effect on the development
of international law. As one distinguished modern commentator has said of
Grotius’ teachings: What remains eternal is the appeal to the jus commune inter
populos—the enlightened conscience of mankind.22

Essential Εlements of Grotius’ Legacy Relative to the Law of the Sea

Mare Liberum, on the face of it a work of legal advocacy, if not propaganda,

was first published in 1609 evidently at the instance of the Dutch East India
Company in defence of Admiral Heemskerck’s capture of a Portuguese ship in
the Straits of Malacca. Some 17 years later Grotius dealt with important aspects
of the Law of the Sea in De Jure Belli ac Pacis published in 1625. The second
work assists us to interpret certain statements in the first in their true per-
spective, and these works together demonstrate a consistency of approach for
which Grotius has not always been given credit.

The Regime of the Open Sea Distinguished from the Regime of

Areas under Coastal State Jurisdiction

As the first element of Grotius’ legacy relative to the Law of the Sea, we may
note the distinction, not always clear from a reading of Mare Liberum alone,
but quite apparent when the latter is read in the light of certain passages of
De Jure Belli ac Pacis, between the regime of the open sea which is the subject
of Mare Liberum, and that of maritime areas within national jurisdiction. The
title Mare Liberum (“Free Sea”) perhaps translated with more elegance than
accuracy into English by generations of scholars as “The Freedom of the Seas”
may have been responsible (together with a certain predilection in the pre-
vailing political climate for interpretations that tended to promote a right to
maximum naval mobility) for ascribing to the principle a somewhat wider
meaning than that contemplated by Grotius himself. Grotius’ immediate
objective was to establish a principle of freedom of trade, an activity which
Portugal in the East, and Spain in the West, claimed to monopolize. Thus, he
refers at the outset to the “most specific and unimpeachable axiom of the Law

22 R.W. Lee in 62 Law Quarterly Review (1946): 53–7.

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of Nations, called a primary rule or first principle, the spirit of which is self-
evident and immutable, to wit: Every nation is free to travel to every other
nation, and to trade with it”.23
Self-evident though it might be, Grotius goes on to offer extensive proofs of
this freedom of trade which is at the centre of his concern. On the other hand,
since the sea is the medium or surface over which ships must pass in order that
freedom to trade with distant lands may be exercised, he recognizes a principle
which he relates to Roman law, that the sea is free for use by all. Roman law,
not having been faced, as was Grotius, with the specific need to counter foreign
claims to monopoly over distant seas, offered mainly notions of res commu-
nis and res publicae, more appropriate for application in domestic or national
law questions concerning the sea-shore, fishing and other activities in coastal
waters, harbours and road-steads and coastwise trade.
In conceiving a Law of Nations based essentially on reason, as emanating
from human ‘sociableness’ and inter-acting with an innate Law of Nature, itself
a product of human reason (whether or not placed there by God), Grotius was
inspired and drew heavily upon Roman Law, refusing to recognize a debt to
feudal law, to the law of the Empire, or the authority of the Church. While
his extraordinary capacities were generally acknowledged in the Europe of his
day and thereafter, there have been both adversaries and critics of his work. If
Grotius’ recognition as the “Father of International Law”, rests on his work De
Jure Belli ac Pacis, the spread of his fame rests more on his work Mare Liberum.
Written primarily to refute the pretensions of Portugal and Spain to exclu-
sive oceanic claims in the East and the West respectively, his arguments were
opposed by erudite contemporaries defending the rights of Spain, Portugal,
England and Venice in their claims to exclusive possession of parts of the
open sea.24

23 ML, Ch. I (p. 7).

24 E.g. Alberico Gentili, Hispanicae advocationis libriduo (1613); Sir John Welwood, Abridge-
ment of all sea lawes (1613); John Selden, Mare clausum sive de dominio maris (1618);
Seraphim de Freitas, De justo imperio lusitanorum asiatico (1625); Sir John Burroughs,
The sovereignty of the british seas (1653). Freitas defended the Portuguese position on
legal grounds. Agreeing with Grotius that the open sea was res communis, he argued
that Portuguese activity in east Asia was not based on claims of conquest, but on forms
of agreement with local rulers, who retained the power to rescind those agreements;
defended the papal donation to Spain and Portugal on the ground that its purpose
related to propagation of the Christian faith and would not lead to conflict unless a ruler
were to forbid that activity; and developed a theory described as that of “quasi-possession”
of sea routes, allegedly based on practices of countries surrounding the Indian Ocean,
that empowered the “possessor” to exclude from those routes the ships of those opposed
to the possessor’s interests. See Alexandrowicz, infra n. 31, 67–71.

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Hugo Grotius And The Law Of The Sea 29

Rousseau25 interpreted Grotius’ lack of support for opposition to the rule

of Christian kings, as a tendency to favour tyrants. Some found Grotius’ style
‘wordy’26 while another accused Grotius of plagiarism, in his extensive reli-
ance on the work of Gentilis in Chapter I of Mare Liberum with slight acknowl-
edgement of the debt.27 It appears that James Brown Scott saw Grotius’ work,
in particular Mare Liberum, as that of a professional advocate hired to defend
a particular position of his government on contemporary maritime issues,
rather than as a unique contribution to legal philosophy that would support
his recognition as the “Father of International Law”.28
Some delegates to the Third UN Conference on the Law of the Sea, rather
carelessly it would seem, saw in Mare Liberum a work that condoned or sup-
ported colonialism. Nothing could be further from the facts, as is shown by the
opening passage from Mare Liberum which demonstrates Grotius’ passionate
opposition to exploitative and proselytizing dominance, and is reminiscent
in tone of statements by delegates from former colonial territories seeking to
change the received doctrines of the Law of the Sea being discussed at the
Conference:

The delusion is as old as it is detestable with which many men, especially

those who by their wealth and power exercise the greatest influence, per-
suade themselves, or as I rather believe, try to persuade themselves, that
justice and injustice are distinguished the one from the other not by their
own nature, but in some fashion merely by the opinion and the custom of
mankind. Those men therefore think that both the laws and the sem-
blance of equity were devised for the sole purpose of repressing the dis-
sensions and rebellions of those persons born in a subordinate position,
affirming meanwhile that they themselves, being placed in a high posi-
tion, ought to dispense all justice in accordance with their own good
pleasure, and that their pleasure ought to be bounded only by their own
view of what is expedient. This opinion, absurd and unnatural as it clearly
is, has gained considerable currency; but this should by no means occa-
sion surprise, inasmuch as there has to be taken into consideration not
only the common frailty of the human race by which we pursue not only
vices and their purveyors, but also the arts of flaterers, to whom power is
always exposed.

25 Contrat Social, Book I, Chapters II and IV.

26 Comments by Archbishop Abbot, quoted in Knight op. cit., n. 1, p. 144.
27 See Knight, op. cit., p. 94.
28 ML, Introductory Note, pp. vi–vii, and comment in Arthur Nussbaum op. cit., n. 4, at
Annex II.

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But, on the other hand, there have stood forth in every age indepen-
dent and wise and devout men able to root out this false doctrine
from the minds of the simple, and to convict its advocates of
shamelessness.29

The volume of writing on international law in European languages is incompa-

rably greater than that in languages from any other continent and it is only to
be expected that, as one recent authority observes:

The history of international ideas is intensely Eurocentric. Until the

twentieth century, the non-European world appeared to Europe predom-
inantly as an object of colonization, evangelization and civilization.30

Indeed, as European languages were projected across the world through colo-
nial domination, often supplanting—at least initially—the languages of the
colonized, it could not have been otherwise. Grotius too, and the great jurists
who preceded him and indeed, those who came after, were, without exception,
from countries which “by their wealth and power exercise the greatest influ-
ence”, drew almost exclusively on European sources of scholarship (although it
might be argued that citations from the Bible could fall outside that category)
as might Grotius’ own work which offered principles of the Law of Nations
grounded on ‘right reason’, which may be thought to be a universal quality.
Given the times in which Grotius wrote, it is difficult to see how he could
have drawn on sources other than those available in the Europe of his day. His
writing was done in the midst of violent religious conflicts. Communication of
any kind, and access to written works by Arab and other Asian authors would
have been virtually impossible, not least because reliable translations from the
original languages and scholarly interpretation of texts would not have been
accessible. Works on law, public administration and social control had existed
in Asia for nearly 2000 years before Grotius’ systematic exposition of a ‘Law of
Nations’, but were translated into European languages only since the end of the
18th century.31 Although those texts are evidence of the existence of ordered

29 ML, p. 1.
30 M. Koskenniemi, “International Law in the world of ideas” in The Cambridge Companion To
International Law, ed. J. Crawford & M. Koskenniemi (Cambridge: Cambridge University
Press, 2012), 54.
31 The Laws of Manu (Manusmrtior Manavadharmasastra) a work in Sanskrit dealing with
a vast range of social obligations in Hindu India, including the duties of individuals at

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Hugo Grotius And The Law Of The Sea 31

civilizations in Asia, as well as of the rules applicable in relations among them,

including use of the sea and its resources, it cannot be assumed that knowl-
edge of them would have substantially influenced Grotius in the elaboration
of his conception of the Law of Nations.

The Enduring Legacy of Grotius’ Thought: The New Law of the Sea

In reflecting upon the enduring influence of Grotius’ thought on the modern

Law of the Sea, we need first to recall two related general principles which,
it is suggested, may be derived from his work, viz. (1) the sovereign equal-
ity of States, requiring formation of the rules of an international legal order
by interaction between the Law of Nature (understood to be “the dictate of
right reason”) and the consent of all, or the great majority of States; and (2) the

different stages of life, the proper way for a righteous king to rule, the sanctity of treaties,
procedures for settling disputes, and punishment for improper behaviour, is said to have
been composed around the beginning of the Common Era. A translation into English by
Sir William Jones was published in Kolcatta in 1794, followed by a translation of that text
into German in Weimar in 1797. A difficult text consisting of some 2685 verses, it attracted
the attention of Nietzsche, but is unlikely to have contributed to Grotius’ thinking when
working on Mare Liberum in 1809, even if he had been made aware of it. More relevant
as such a possible contribution was the Arthasastra, a work of encyclopaedic scope on
the functions of government both internal and external, civil, military, commercial, fiscal
and judicial. Reputedly composed between the years 321 and 300 Before the Common
Era by Kautilya, a powerful courtier whose efforts enabled Chandragupta Maurya to
establish the dynasty that would bring much of the sub-continent under its rule in the
centuries that followed, the work is divided into 15 books. It was discovered by the Indian
scholar Pandit Dr. R. Shamasastry, who published the first translation into English in 1909.
Several editions of the work have been published in English, first by Pandit Shamasastry
himself, later by Dr. R.P. Kangle, and more recently by Dr. L.N. Ranganathan (Penguin
Books India, Kolkatta 1987). The Arthasastra of Kantilya deals with a wide range of matters
touching international relations including diplomacy, making war and peace, control of
the exploitation of mines and marine resources, as well as regulation of navigation on the
ocean as well as on rivers and lakes.
Charles Alexandrowicz, in his magisterial Introduction to the history of the law of
nations in the east indies (16th, 17th and 18th centuries) (Oxford, 1967) draws attention
to substantial maritime activity in the Indian Ocean being subject, in the 14th century of
the Common Era to Chinese naval regulations, and to the existence of a “Maritime Code
of Macassar” and a “Maritime Code of Malacca”, citing (at pp. 63–4) translations of these
works by J.M. Pardessus in 1845.

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inter-dependence of States for purposes of trade, development and security.

Thereafter, the extent to which the prescriptions of Grotius are reflected in
the 1982 UN Convention on the Law of the Sea (and its 1994 Implementing
Agreement) will be considered.

The Sovereign Equality of States

To create an international legislative process designed to establish a new, com-

prehensive Law of the Sea taking those principles into account—a law binding
on all States whether coastal or land-locked, and designed to regulate their
international relations concerning the Sea and its resources, would require not
merely a conclave of the powerful as occurred, for example, in Vienna in 1815,
and on other State conferences during the 19th Century, but instead (1) the
convening of an international conference in which all States would be invited
to participate; and (2) that the aim of such a Conference would be to encour-
age all States to be present and defend their interests regarding a range of
subjects and issues of the Law of the Sea, to be followed by negotiation and rec-
onciliation of positions, and the formulation of rules, regulations and proce-
dures that could garner the consent of all, or the largest number of States. That
was the monumental task undertaken at the Third United Nations Conference
on the Law of the Sea from 1973 until 1982, supplemented by institutional
preparatory work, and further negotiation that continued until 1994, a total
of nearly 20 years. It was a process based on (1) universal participation, and
(2) efforts to secure the consent of all, or the greatest number of States, recall-
ing Grotius admonition to seek the consent “not of particular States, but of the
great society of States”.
In Grotius’ time maritime jurisdiction was by Papal Decree, apportioned
between just two countries—Spain and Portugal. It was not long before
England, the Netherlands and France asserted their rights as naval and mer-
cantile powers. The emergence of Germany, Italy and other European powers,
the United States, and the recognition as ‘civilized’32 of a handful of Asian,
Latin American and African countries expanded the world of States. During
the Peace Conference at The Hague in 1899, representatives of some 26 nations
gathered to pay tribute to Grotius’ memory. The Hague Conference of 1930,
which attempted to deal with some aspects of the Law of the Sea on the basis of
preparatory work done by the Leagues’ Committee of Experts, was attended by

32 See as to the applicable standard of ‘civilization’, Bernard Röling, International Law in an

expanded world (Amsterdam: Djambatan, 1960) Chapter IV, and the works cited therein.

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Hugo Grotius And The Law Of The Sea 33

48 States. Some 86 States participated in the First United Nations Conference

on the Law of the Sea held at Geneva in 1958, and a similar number attended
the Second UN Conference on the Law of the Sea in 1960.
No fewer than 164 States (as well as other entities, including Namibia,
“self-governing associated States”, territories which enjoy full internal self-
government, and National Liberation Movements, all as potential managers of
marine natural resources) attended the Third UN Conference on the Law
of the Sea. Negotiations on aspects of the Law of the Sea that preceded the
Conference, the Conference itself as well as the negotiations that supple-
mented it, engaged the United Nations in an unique experiment in collabora-
tive law-making, extending over more than a quarter of a century along lines
that might have been applauded by Grotius, but beyond any scale he could
have imagined.
Not only was the Conference without precedent as to the number of its
participants, and the range and variety of the issues—legal, economic and
technological—to be dealt with; it was the first Conference at which an attempt
would be made by plenipotentiary representatives to deal with all those issues
simultaneously. There would be no division of the issues into groups for sepa-
rate negotiation and the piece-meal conclusion of treaties, as had occurred at
Geneva in 1958; nor would the Conference have the benefit of a prior study and
digestion of the issues such as had been carried out for the 1958 Conference
by the International Law Commission. The new Conference was to negotiate
and conclude a single treaty of comprehensive scope, in the presence, as far
as possible, of all States and interested entities, so that participation in the
legislative process would induce confidence in the new law, and consequently
acceptance of and compliance with it. In the spirit of Grotius, there would be
no gaps in the law:33 reservations and exceptions are narrowly restricted;34 the
relationship between the Convention and other international agreements is
regulated;35 the Convention offers a comprehensive system for the settlement
of disputes, compulsory over a wide range of subjects;36 while the Preamble in
its final paragraph, affirms that “matters not regulated by this Convention con-
tinue to be governed by the rules and principles of general international law.”
Decision-making at the Conference was itself designed to give effect to
the principle of universal participation in a manner sensitive to the variety of
interests potentially involved. Thus, the fundamental rule was that decisions

33 Above, note 9.
34 United Nations Convention on the Law of the Sea (UNC), Article 309.
35 UNC, Article 311.
36 UNC, Part XV, Section 2.

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would be taken on the basis of one-State-one-vote, by a majority ‘qualified’

according to the importance of the decision.37 In this the Conference, follow-
ing other United Nations codification conferences, recognizes the sovereign
equality of States. However, by way of re-assurance to States holding minor-
ity views, the Rules of Procedure incorporate ‘cooling-off periods’38 and other
means of postponing votes to permit renewed attempts to reach agreement
and, most importantly, contain an additional element: appended to the Rules
is a ‘Gentlemen’s Agreement’, an undertaking whereby

The Conference should make every effort to reach agreement on substan-

tive matters by way of consensus and there should be no voting on such
matters until all efforts at consensus have been exhausted.

The Rules were thus designed to take into account the views of all States
equally, and regardless of their political or economic influence, but would not
permit a deadlock to occur through prolonged confrontation.
Recognition of the sovereign equality of States and the efficacy of taking
account of all views through consensus-directed rules for decision-making,
which had so influenced the Conference process, is apparent in the provisions
of the Convention as well. The fourth paragraph of the Preamble recalls at the
outset the spirit of the Grotian tradition, in

Recognizing the desirability of establishing . . . with due regard for the

sovereignty of all States, a legal order for seas and oceans which will facil-
itate international communication, and will promote the peaceful uses
of the seas and oceans, the equitable and efficient utilization of their
resources, the conservation of their living resources, and the study, pro-
tection and preservation of the marine environment.

The sovereign equality of all coastal States is recognized and subjected to uni-
form rules as to the extension of their maritime competence.39 The only limita-
tions on the exercise of those competences are those imposed by the accidents
of geography or history through greater or lesser endowment of the States with
maritime zones of economic potential. The problems of States placed at a dis-
advantage in that respect or lacking a coastline altogether, are recognized and,

37 Rules of Procedure of the Third UN Conference on the Law of the Sea, document
A/CONF.62/30/Rev. 3, Articles 38, 39.
38 Id. Article 37.
39 See generally the rights conferred on coastal States in UNC, Parts I–VI and XII–XIV.

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Hugo Grotius And The Law Of The Sea 35

to the extent possible, compensated for.40 All States enjoy the freedoms of the
high seas, and the rights accorded them in exclusive economic zones, territo-
rial seas, internal waters and archipelagic waters,41 and are equally subject to
the corresponding duties and responsibilities.42
The sovereign equality of States is specifically mentioned and reflected in the
institutional provisions of part XI of the Convention. Thus, the International
Seabed Authority established pursuant to Section 4 of Part XI as “the organiza-
tion through which States Parties shall . . . organize and control activities in the
Area, particularly with a view to administering the resources of the Area”, is
in explicit terms “based on the principle of the sovereign equality of States.”43
Again, the Assembly, described as ‘the supreme organ’ of the Authority and
given the power to establish its general policies, is accorded that responsibility
“as the sole organ of the Authority consisting of all the members.”44 The one-
State-one-vote principle applies to decisions by the Assembly, as it does in the
Council,45 the Authority’s executive organ of limited but representative mem-
bership, and their subsidiary organs, as well as in the Governing Board of the
Enterprise—the organ of the Authority responsible for carrying out sea-bed
mining activities.46
The one-State-one-vote principle reflecting the sovereign equality of States
applies in all other institutional provisions of the Convention as well, such as
conferences or meetings of States Parties convened, for example, to consider
amendments to the Convention,47 or to elect the members of the International
Tribunal for the Law of the Sea.48
Systems of ‘weighted voting’ based on levels of budgetary contribution
though sometimes proposed, were never adopted. However, in order to encour-
age acceptance of the Convention by the industrialized countries whose
technology and financial support were needed to enable the Convention’s pro-
visions on sea-bed mineral exploitation to yield the envisioned benefits, the
1994 Implementation Agreement amends the Convention in ways intended
to balance the voting strength of the majority with the interests of a minority

40 See for example UNC, Articles 69, 70, 82 and Part X.

41 See for example UNC, Articles 86, 87, 90, 110–2, 116.
Article 157 Nature and fundamental principles of the Authority
42 See for example UNC, Articles 88, 89, 91–4, 98–109, 117–119.
1. The Authority is the organization through which States Parties shall, in
43 UNC, Article 157. accordance with this Part, organize and control activities in the Area,
particularly with a view to administering the resources of the Area.
44 UNC, Article 160. 2. The powers and functions of the Authority shall be those expressly
conferred upon it by this Convention. The Authority shall have such
45 UNC, Article 161 (7) and (8). incidental powers, consistent with this Convention, as are implicit in and
46 UNC, Annex IV, Article 5. necessary for the exercise of those powers and functions with respect to
activities in the Area.
47 UNC, Article 312. 3. The Authority is based on the principle of the sovereign equality of all its
members.
48 UNC, Annex VI, Article 4. 4. All members of the Authority shall fulfil in good faith the obligations
assumed by them in accordance with this Part in order to ensure to all of
them the rights and benefits resulting from membership.

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of industrialized countries without abandoning the one-State-one-vote system

or resorting to a system of ‘weighted’ voting. This was achieved (1) by requir-
ing each organ of the International Sea-bed Authority to make every effort
to reach its decisions by consensus, (2) by providing for an enhanced role for
the Council, the executive organ of the Authority; (3) by re-structuring the
Council to comprise interest-based ‘chambers’, and providing that a major-
ity opposed to a proposal in any chamber would result in rejection of the
proposal,49 and (4) by requiring that any decision having financial or budget-
ary implications would be ‘based on’ the recommendations of a new organ of
the Authority, the Finance Committee.50

The Inter-dependence of States

A principle of the inter-dependence of States is implicit in Grotius’ statement

that:

. . . great States, since they seem to contain in themselves all things

required for the adequate protection of life, seem not to have need of that
virtue which looks toward the outside, and is called justice . . . there is no
State so powerful that it may not some time need the help of others out-
side itself, either for purposes of trade, or even to ward off the forces of
many foreign States united against it. In consequence we see that even
the most powerful peoples and sovereigns seek alliances . . .51

The principle is closely connected with, and indeed could be said to follow
from, his concept of States equal in their sovereignty, and subject in all their
dealings to a universal law. Rejecting hegemony and exploitation of one State
by another, his vision is of a world of sovereign States bound together in time
of peace by trade, an activity which is both natural and fundamental.
This theme of the inter-dependence of States52 was given eloquent and
amplified expression by the majority of States through adoption by the

49 1994 Implementing Agreement, Section 3. Decision-making.

50 1994 Implementing Agreement, Section 9. The Finance Committee.
51 PRO (Kelsey) paras. 21–22.
52 For the views of some recent writers emphasizing the importance of the principle of
mutual dependence, or inter-dependence as between developing and developed States,
see Röling, op. cit., xii–xiv.

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Hugo Grotius And The Law Of The Sea 37

General Assembly of the United Nations in 1974, of the Declaration on the

Establishment of a New International Economic Order,53 a document which
offered guidance and inspiration to many at the Conference on the Law
of the Sea. That Declaration proclaims the determination of States to work
for the establishment of a new international economic order “based on equity,
sovereign equality, inter-dependence, common interest and co-operation
among all States . . .”54
While passages in the Declaration recall, in their reference to equity, sov-
ereign equality and inter-dependence, certain fundamentals of the Grotian
legacy, they take a step further in proclaiming a duty of international co-
operation for development. International co-operation is the positive aspect of
the inter-dependence of States. International co-operation for development is
an extension of the principle, which recognizes the need for a balanced and
equitable mutuality of economic benefit between States and is directed to
achieving that end. The obligation of positive action by way of co-operation,
provided for frequently in the Convention on the Law of the Sea, represents a
comparatively recent and valuable development of international law, and one
that will require considerable creativity in its implementation. The term co-
operation brings to mind an essentially voluntary type of activity and the idea
of compelling co-operation by legislation providing for incentives and sanc-
tions could present law-makers with new challenges.
The Convention on the Law of the Sea more than any other international
agreement in history is designed to create obligations for States to take positive
action to co-operate with one another and with international organizations
in a wide variety of marine activities. These obligations arise either implicitly,
as in the case of directives to States to enact national legislation in specified
fields; or explicitly, by imposing, in terms, the duty to co-operate in specific
ways. For example, the Convention calls for co-operation between the users of
straits used for international navigation, and the States bordering such straits
in the maintenance and improvement of navigational safety aids, as well as in
the prevention and abatement of marine pollution (Article 43).
A general obligation to co-operate in conservation of the living resources
of exclusive economic zones of States is provided in Articles 63–67 of the

53 UN General Assembly Resolution 3201, and Resolution 3202 (Programme of Action)

1 May 1974; see also: UNGA Resolution 3281, Charter of the Economic Rights and Duties
of States (12 December 1974); UNGA Resolution 3362, “Development and Co-operation”.
(Seventh Special Session 1975).
54 UNGA Resolution 3201, Preamble.

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Convention, while co-operation in the conservation of the living resources

of the high seas is covered by Articles 117–120. Articles 100, 108 and 109 deal
respectively with co-operation in the suppression of piracy, of illicit drug traf-
fic, and of unauthorized broadcasting from the high seas. Articles 197, 199, 200
and 201 deal with co-operation in the prevention and abatement of marine
pollution, while Article 123 deals with co-operation among a special group of
States: States bordering enclosed or semi-enclosed seas.
Of particular importance in the context of inter-dependence are those
forms of co-operation which are designed to have an economic impact,
through augmenting a developing country’s marine research capability or
technological competence. Articles 202–3 provide for technical assistance
to and preferential treatment of, the developing countries in the matter of
pollution control. The Convention provides for international co-operation “in
accordance with the principle of sovereignty and jurisdiction and on the basis
of mutual benefit” in Articles 242–44 and 249; while co-operation in the field of
transfer of marine technology is dealt with in Articles 266 and 270–2.
The Convention’s provisions which reflect the principles of inter-
dependence and co-operation in their most developed form, are those dealing
with the regime governing the sea-bed beyond the limits of national jurisdic-
tion, i.e., beyond the continental shelf as defined by Article 76. Those provi-
sions are contained in Part XI (Articles 133–191), and in Annexes III and IV of
the Convention, as well as in Resolution I and II of the Third UN Conference
on the Law of the Sea. At the heart of those provisions lies the concept of the
sea-bed and the ocean floor beyond the limits of national jurisdiction, and
their resources, as the ‘common heritage of mankind’55 proposed at the twenty-
second session of the UN General Assembly in 1967 by Malta’s Ambassador
Arvid Pardo. The principles relating to the ‘common heritage’ were adopted,
without dissent, in 1970 by the entire membership of the United Nations in the
Declaration of Principles governing the Sea-bed and the Ocean Floor beyond
the Limits of National Jurisdiction, Resolution 2749 (XXV).
The concept of the sea-bed and its resources beyond the limits of national
jurisdiction as it evolved and found expression in the modern Law of the Sea
resembles Grotius’ concept of the open sea as the common property of all

55 Some provisions of Part XI and its related annexes of the 1982 UN Convention dealing
with international co-operation were amended or suppressed by the 1994 Agreement as
being excessively complex or unlikely to be implemented contractually and thus having
a negative impact on the development of seabed mining activity. See the present author’s
lectures at the Hague Academy of International Law entitled “The Common Heritage of
Mankind: Then and Now”, Recueil des Cours, vol. 361, 91 et seq.

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Hugo Grotius And The Law Of The Sea 39

nations. Thus, the Declaration of Principles and the Convention of the Law
of the Sea, having declared the sea-bed beyond national jurisdiction and
its resources to be the common heritage of mankind, go on to affirm that
neither the Area nor its resources can be appropriated, i.e., cannot be made
the property of any State or person, and cannot be made subject to the sover-
eignty of any State—a status claimed by Grotius for the open sea. Further, the
Declaration of Principles which first proclaimed that status and, in the opinion
of the great majority of countries, thus gave expression to a rule of customary
law that had evolved, was adopted by the entire membership of the United
Nations without dissent or, to use Grotius’ phrase, “by the consensus of opin-
ion of all mankind”. Thus, the status of the resources of the sea-bed beyond
national jurisdiction as the common heritage of mankind, is sui generis and
subject—exclusively subject—to the regime set forth in the new Convention.
The International Sea-bed Authority provided for in Part XI of the
Convention will regulate and supervise mineral resource-related activities
over some two-thirds of the earth’s surface. It will, when fully operational,
collect revenues from miners within its jurisdiction as well as from mineral
exploitation within certain national jurisdictions,56 and distribute these
financial benefits, all according to policies and rules adopted by its organs of
either universal, or equitably representative, membership.57
For Grotius, the principle of the inter-dependence of States was one that
applied not only in economic, but also in security matters.58 There are manifes-
tations of the principle in security-related provisions of the new Law of the Sea
as well. Most important among them are those provisions which seek to ensure
the mobility of the armed forces of those States which believe that world peace
is preserved through the maintenance of a constant balance of military (in the
present case, naval and air) strength, of vigilance, and retaliatory capacity. That
this belief is widely shared by the majority of coastal States at the present time
seems evident in their willingness to concede to the major military powers
the right of unimpeded transit through waters over which they might claim
to exercise full sovereignty. Thus, the Convention provides for free and unim-
peded passage through straits used for international navigation in accordance
with a concept of ‘transit passage’: i.e., freedom of navigation and over flight
for the purpose of continuous and expeditious passage through the strait.59
Similar provisions guarantee freedom of navigation and over flight through

56 UNC, Article 82.

57 UNC, Article 140, and Articles 160, paragraph 2 (f) (i) and 162, paragraph 2 (o) (i).
58 PRO (Kelsey) paras. 21–22.
59 UNC, Article 38.

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archipelagic waters.60 While provisions of the text confer sovereignty on the

coastal State in respect of resources in an exclusive economic zone 200 miles
wide, the coastal State concedes that “freedom of navigation and over-flight”,
and “other internationally lawful uses of the sea related to these freedoms such
as uses associated with the operation of ships, aircraft and submarine cables
and pipelines . . .” are to be preserved within that zone.61

Specific Principles Concerning the Regime of Maritime Areas

within National Jurisdiction

Grotius recognized that the sovereignty of a coastal State could extend, beyond
its land territory and internal waters, to an adjacent belt of sea. While he speci-
fied no maximum breadth for such a belt, it was not to be unlimited and should
somehow be proportionate to the adjacent land area. Such sovereignty had
to be acquired, and he appears to make its retention depend both upon the
coastal State’s interest in establishing land-related controls, and its ability to
exercise them effectively. Coastal State interests recognized by Grotius appear
to be (1) protection of its security, (2) the management (exploitation, conser-
vation, revenue collection) of the resources (essentially fish) of the maritime
belt, and (3) maintenance of navigational aids, and recovery of a proportion of
the expenses involved in that undertaking. The coastal State must not obstruct
navigation “which is of innocent intent”.
The framework of principle which Grotius saw as forming the basis of
coastal State jurisdiction is in its essentials the framework of today’s law. But
the forces for change have inevitably engendered conflicts, and the law, in
striving to be effective in their resolution, has evolved in complexity. Security,
and resource-related interests of coastal States, however, with their roots in
a powerful territorial imperative inherent in the concept of the nation-State,
remain the principal determinants of change in the Law of the Sea. Rapid
technological advances in a few States were seen by the coastal States among
the rest as dramatically increasing hazards to them from (1) highly efficient
resource-harvesting capability, (2) accidental or deliberate release of danger-
ous substances into the sea, and (3) transit of military ships or aircraft. Rising
expectations among the numerically superior ‘new’ members of the com-
munity, were matched by heightened apprehensions arising from their being
at the wrong end of a widening technological gap. By way of response to the
perceived threat came claims of sovereignty or exclusive jurisdiction over

60 UNC, Articles 53, 54.

61 UNC, Article 58.

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Hugo Grotius And The Law Of The Sea 41

broad areas of the adjacent seas which clashed eventually with the irreduc-
ible minimum demanded by the major maritime States: naval (and military
aircraft) mobility in order to respond effectively to a perceived threat to their
own security.
The new Convention resolves these conflicts by recognizing a spectrum of
jurisdictions, in each band of which coastal State concerns are reconciled with
the concerns of the major maritime powers. The right of foreign ships to unim-
peded navigation, so important to Grotius as being necessary in order to give
effect to his ‘axiom’ of freedom of trade, survives in some degree through each
band of the spectrum: in the territorial sea, as innocent passage62 for ships,
without the right of over-flight; in straits used for international navigation, as
‘transit passage’63 for ships and aircraft; in archipelagic waters, as archipelagic
sea-lanes passage64 for ships and aircraft; in the exclusive economic zone, as
freedom of navigation,65 subject only to the coastal State’s resource-, environ-
ment- or research- related competences; and in the open sea as freedom of
navigation66 subject only to certain general obligations67 imposed in the inter-
ests of the community as a whole.
On the other hand, the coastal State’s resource interests are secured through
recognition of its sovereignty in the territorial sea;68 and its “sovereign rights
for the purpose of exploring and exploiting, conserving and managing the nat-
ural resources” of its exclusive economic zone,69 and of its continental shelf,70
the latter being equivalent, in most cases, in its modern conception to the
entire continental margin up to the abyssal plain. The Convention recognizes
the right of the coastal State to enforce its laws and take other action in the
exercise of its sovereignty in the territorial sea;71 to enforce certain specified
laws within a contiguous zone,72 and to exercise an even more restricted range
of surveillance and environmental protection rights in the exclusive economic
zone and continental shelf.73

62 UNC, Part II, Section 3.

63 UNC, Part III.
64 UNC, Article 53.
65 UNC. Article 58.
66 UNC, Article 87, 90.
67 For example, UNC, Articles 94, 98, 118, 119.
68 UNC, Article 2.
69 UNC, Article 56.
70 UNC, Articles 56 (3), 77.
71 UNC, Articles 2, 21, 22, 23, 27 (criminal jurisdiction), 28, 30 (civil jurisdiction).
72 UNC, Article 33.
73 UNC, Articles 56, 73 (EEZ); 77, 80, 81, 246, 253 (Continental Shelf).

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An essential element of the Grotian legacy—recognition of the sovereign

equality of States—has over time made obsolete the requirement that coastal
State jurisdiction over adjacent maritime areas must be claimed and main-
tained effectively, by force if necessary. Under the Convention, all coastal States
will enjoy the full spectrum of rights in adjacent marine areas, subject only to
the constraints of geography, and the limits they establish in accordance with
rules prescribed, with respect to their territorial sea, contiguous zone, exclu-
sive economic zone and continental shelf. Those rights derive directly from
the Convention and, in the opinion of many, from customary international
law as well. In the case of coastal State rights over the continental shelf, the
Convention emphasizes that they “do not depend on occupation, effective or
notional, or any express proclamation.”74
The physical limits of the continental shelf must, however, be established
in accordance with Article 76, and for certain States, in accordance with the
Statement of Understanding adopted by the Conference on 29 August 1980
(reproduced as Annex II to the Final Act of the Conference)and submitted
for consideration by the Commission on the Limits of the Continental Shelf
(Annex II to the Convention).
Coastal States’ rights to protect their security and the adjacent marine
environment—both concerns which come to us from Grotius’ time—are
extensively developed in the new Convention. Thus, foreign ships have only
a right of ‘innocent passage’ through the territorial sea75 and in certain inter-
nal waters.76 That right—which does not include the right of over-flight—is
described in greater detail than ever before,77 and coastal State rights78 and
duties,79 are to reflect a balance of interests of user and littoral State. A simi-
lar balance is sought to be achieved in provisions on ‘transit passage’ through
straits used for international navigation.80 Frequency of passage, perhaps
enhancing the hazard to littoral State security, is matched by an increase in
the user’s interest in securing passage to achieve naval mobility also perceived
as essential to security. Prescribed application of generally accepted interna-
tional regulations, procedures and practices seem to compel the coastal State

74 UNC, Article 77 (3).

75 UNC, Part II, Section 3.
76 E.g., UNC, Article 8 (2).
77 UNC, Articles 19–20.
78 E.g., UNC, Articles 19–23, 25, 26.
79 E.g., UNC, Article 24.
80 UNC, Articles 40–2 (rights of Coastal State); Article 44 (duties of coastal State).

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Hugo Grotius And The Law Of The Sea 43

to greater standards of objectivity.81 The regime of archipelagic sea-lanes pas-

sage follows closely that of transit passage through straits.82
The Convention gives the coastal State powers to legislate to prevent, reduce
and control marine pollution from foreign vessels in the territorial sea83 and,
in conformity with generally accepted international rules and standards, in
its exclusive economic zone.84 The enforcement powers of coastal States with
respect to marine pollution are conferred and regulated by the Convention.85
Finally, in the context of development of the Grotian legacy in relation to
maritime areas within national jurisdiction, we should recall his reference to a
‘right of passage over land’. As with the concept of free navigation, the founda-
tion of this right is the right to trade. “No one”, says Grotius, “. . . has the right
to hinder any nation from carrying on commerce with any other nation at a
distance.”86 Passage over territory demanded ‘without evil intent’ must, in his
view, be granted, and the existence of an alternative route is not a sufficient
reason for refusal. While no general right of one State to transport of its goods
over the territory of another appears to have come down to us, the idea, based
as it is on the right to trade, finds important expression in the right of land-
locked States to freedom of access to and from the sea and freedom of transit87
across the territory of an intervening or ‘transit’ State, based on contractual
arrangements with the latter.

Specific Principles Concerning the Regime of the High Seas

Grotius’ ‘outer sea’ which corresponds to the ‘high seas’ or the sea beyond the
limits of national jurisdiction, is dealt with in Part VIII of the Convention. In
the basic concept of a ‘free sea’ it differs little from Grotius’ conception.
However, technology has vastly increased the scope of maritime activities, and
accordingly, apart from navigation and fishing which were activities for which
the sea was ‘free’ in Grotius time; and apart from the freedom to lay submarine
cables and pipelines, and to fly over the high seas which were added to the list
of freedoms by Article 2 of the 1958 Convention on the High Seas, Article 87

81 UNC, Article 39.

82 UNC, Article 54.
83 UNC, Article 211 (4).
84 UNC, Article 211 (5) and (6).
85 UNC, Part XII, Sections 6 and 7.
86 DJB (Campbell), Book II, Ch. II.xiii.5.
87 UNC, Part X.

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of the 1982 Convention includes two more such freedoms in a non-exhaustive

list: freedom to construct artificial islands and other installations permitted
under international law; and freedom of scientific research. In addition to
these six freedoms, Article 90 provides for the right of every State to sail ships
flying its flag, on the high seas.
Several of the Convention’s provisions on the regime of the high seas reflect
principles enunciated by Grotius. Thus, the ‘freedoms’ listed are to be exercised
in accordance with the rules of law applicable to them, and with due regard for
the interests of others exercising those freedoms; and with respect to activi-
ties on the sea-bed; there should be no interference with the carrying out of
other lawful activities. Again, recalling the Grotian principle that the high seas
cannot be the property to any one, Article 89 (as did Article 2 of the Geneva
Convention on the High Seas) provides that “No State may validly purport to
subject any part of the high seas to its sovereignty”.
The Grotian principle of the inter-dependence of States is reflected in sev-
eral articles calling for co-operation among States for the suppression of traf-
fic in slaves,88 or piracy,89 illicit traffic in narcotic drugs90 and unauthorized
broadcasting from the high seas.91 The principle of inter-dependence of States
and the Grotian principle of conservation of things that are “common property
for common use”, together find expression in the Convention’s provisions deal-
ing with co-operation among States in the conservation and management of
the living resources of the high seas.92

Specific Principles Concerning Liability to Sanctions

The principles enunciated by Grotius concerning the open sea, though sup-
ported abundantly with references to religion and morals, far from being
merely the counsels of perfection, were in fact to be rules of law; and being rules
of law were not to be broken with impunity. In Mare Liberum he contemplates

88 UNC, Article 99.

89 UNC, Article 100.
90 UNC, Article 108.
91 UNC, Article 109.
92 UNC, Part VII, Section 2. This follows from Grotius’ assertions that the sea and its resources
are things “created by nature for common use” (ML p. 28); “are common property for
common benefit” (ML p. 29); and that “the common right to all things that nature has
produced for the common use of man must be maintained.” (ML p. 27).

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Hugo Grotius And The Law Of The Sea 45

arbitral or judicial proceedings for the recovery of damages for infringement of

a right held in common.93
There is thus no finer expression of Grotius’ legacy to be found in the mod-
ern Law of the Sea, than the provisions of the new Convention which deal with
the settlement of disputes. These provisions, unprecedented in their scope as
to compulsory settlement procedures, and counting among their supporters
several States which are traditionally wary of such mechanisms, represent a
major step toward the establishment of a legal order for the oceans. The prin-
cipal provisions on dispute settlement are contained in Part XV of the Conven-
tion (Articles 279–299), in Annex V on conciliation, Annex VI The Statute of
the International Tribunal for the Law of the Sea, Annex VII on arbitration,
Annex VIII on special arbitration and, with particular reference to a defined
category of disputes arising out of seabed mining activities, Section 5 of Part
XI of the Convention, which provides for reference of such disputes to a spe-
cially constituted Seabed Disputes Chamber of the International Tribunal for
the Law of the Sea. In order to attract the widest possible support, the sys-
tem of dispute settlement in the Convention provides a measure of flexibility:
it allows a State, when expressing its consent to be bound by the Conven-
tion, or at any time thereafter, to choose by means of a written declaration,
one or more of the mechanisms for settlement of disputes concerning the
interpretation or application of the Convention, listed in Article 287, viz.,
the International Tribunal for the Law of the Sea, the International Court of
Justice, an arbitral tribunal constituted in accordance with Annex VII, or a spe-
cial arbitral tribunal constituted in accordance with Annex VIII. By paragraph
3 of Article 287, a State which is a party to a dispute but has not declared its
choice of means of settlement under Article 287, or if the parties to the dispute
have made different choices under that Article, the parties will be deemed to
have accepted arbitration under Annex VII, unless they agree otherwise.
Only certain defined categories of disputes may be ‘excepted’ from the
compulsory procedures entailing binding decisions provided for in Section 2
of Part XV, by declaration of a Member State at its option under Article 298.
Those categories include, for example, disputes concerning the interpreta-
tion or application of Articles 15, 74 and 83 of the Convention relating to sea
boundary delimitations, in particular disputes that necessarily involve consid-
eration of any unsettled disputes concerning sovereignty or other rights over

93 “He who puts his private interests before the public and common interests or who in any
way hinders another in the use of something which is his by common right is held in
damages to complete restitution in an amount fixed by an honourable arbitrator.” (ML
p. 75).

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continental or insular land territory; disputes concerning military activities,

and disputes in respect of which the Security Council of the United Nations is
exercising its functions. However, even disputes within such categories may be
submitted to Section 2 procedures with the consent of all concerned.94

Conclusion

Hugo Grotius lived and worked during the last and the deadliest of Europe’s
religious wars. Some modern critics see in his work, in particular Mare Liberum,
merely the product of a talented counselor hired to promote the interests of
The Netherlands—then an ‘emerging’ mercantile and naval power—in its
bid to break the trading monopoly of the established European powers of the
day, Portugal and Spain. Of course, the prodigy whom King Henry IV of France
called the ‘Miracle of Holland’, accomplished much more than success in that
particular endeavor, and his oeuvres in the legal field, have been more widely
influential and longer lasting than those of any who would deny him the title
“Father of International Law”.
Drawing upon neither the practices of warring European Princes in their
struggle for power, nor the over-arching and highly potent authority of the
Catholic Church, Grotius chose as the foundation of rules to govern the con-
duct of States, the universal and timeless principles that he would call ‘the Law
of Nature’, rooted essentially in a characteristic human ‘sociableness’, having its
origins in human reason; and a ‘Law of Nations’ formed by the mutual consent
“. . . not of particular States, but of the great society of States”. In so doing, he
challenged the authority of the Empire and the Catholic Church, and in par-
ticular the power of the Pontiff to divide the world among European Princes
by means of papal decrees. Of the global impact of those papal decrees, one
recent writer observes:

94 See generally Natalie Klein, “Dispute Settment”, in The U.N. Convention On The Law Of
The Sea (Cambridge: Cambridge University Press, 2005); J.G. Merrils, “The Law of the
Sea Convention”, in International Dispute Settlement (Cambridge: Cambridge University
Press, 2000), 170–196; A.E. Boyle, “Dispute Settlement and the Law of the Sea Convention:
problems of fragmentation and jurisdiction”, in 46 International and Comparative Law
Quarterly (1997): 37–54; Louis B. Sohn, “Settlement of Law of the Sea Disputes”, in 10
International Journal of Marine and Coastal Law (1995): 205–216.

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Hugo Grotius And The Law Of The Sea 47

These bulls are the sole basis for the European legal claim upon the new
lands ‘discovered’ by the explorers who had been sent out by the Spanish
and Portuguese crowns. They provide a justification for the conquest of
indigenous America and were the wedge that drove European nations to
hundreds of years of warfare, either defending or challenging the legiti-
macy of their claims.95

Feudal practices and the colonial schemes that followed, as well as the
temporal power of religious hierarchies, have long since withered away.
The influence of an eternal law rooted in human reason and the consent
of ‘the great society of States’, as conceived by Grotius, still beckons and inspires
us to refine its rules and strengthen its institutions in the pursuit of justice in
an increasingly complex world.

95 Stephen R. Bown, op. cit., n. 19, 144–145.

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 Chapter 4

The Origin of the Theory of Sovereignty of the Sea

Tullio Scovazzi

Grotius’ Opponents

Since the beginning of the 17th century, the great reputation won by a booklet
called Mare liberum and written anonymously by the Dutch scholar Huig de
Groot (Hugo Grotius, 1583–1645)1 was decisive in establishing a solid theoreti-
cal foundation in favour of the principle of freedom of the sea.2 In a very short
time the Mare liberum gained a widespread diffusion.
Among other arguments, Grotius developed a simple idea, based on the very
nature of the sea: the regime of the sea must be founded on freedom of use for
everybody, for it is impossible to occupy and delimit infinite and boundless
natural elements, such as the air or marine waters. The authority of reason and
the very nature of things were leading to such a conclusion:

Hujus generis est aër, duplici ratione, tum quia occupari non potest, tum
quia usum promiscuum hominibus debet. Et eisdem de causis commune
est omnium maris elementum, infinitum scilicet ita, ut possideri non
queat, et omnium usibus accommodatum: sive navigationem respicimus,
sive etiam piscaturam (. . .). Mare igitur proprium omnino alicujus fieri
non potest, quia natura commune hoc esse non permittit, sed jubet.3

1 More precisely: Mare liberum sive de jure, quod Batavis competit ad Indicana commercia,
dissertatio, Lugduni Batavorum, 1609 (No. 541 in the Bibliographie des écrits imprimés de Hugo
Grotius, ed. Ter Meulen & Diermanse [La Haye: Nijhoff, 1950). The name of Grotius as the author
appeared for the first time in a Dutch translation published in 1614.
2 The Mare liberum was only a chapter of an extensive treatise entitled De jure praedae
commentarius that was found accidentally only in 1864: Grotius, De jure praedae commentarius,
ex Auctoris Codice descripsit et vulgavit H.G. Hamaker, Hagae Comitum, 1868 (No. 684 in the
bibliography quoted above). The De jure praedae was written to be used in the proceedings
held in the Netherlands on the legality of the capture by the Dutch East India Company of the
Portuguese carack Catarina in the strait of Singapore. An English translation by G.L. Williams,
with a preface by G.A. Finch, was published in Oxford in 1950 (the decision taken in 1604 by the
Admiralty College of Amsterdam on the Catarina case is reproduced at p. 375; on this famous
case see, inter alia, Acquaviva, Libertà o dominio dei mari: il caso della Santa Catarina, in Anuario
de Derecho Internacional (2001): 239.
3 Grotius, De jure praedae commentarius, 219–220.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_005

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The Origin Of The Theory Of Sovereignty Of The Sea 49

Within a few years after the publication of the Mare liberum a number
of works were printed in favour of the opposite theory of the sovereignty of
the sea,4 based on the assumption that also the sea can be occupied. Among
Grotius’ opponents the Englishman John Selden is often remembered, while
authors such as the Scotsman William Welwood, the Venetian Paolo Sarpi
and Giulio Pace da Beriga, the Portuguese Serafim Freitas and the Genoese
Pietro Battista Borgo have been almost forgotten. They engaged Grotius and
his followers5 in a doctrinal dispute which is known as ‘the battle of books’
(la bataille des livres) and lasted the whole 17th century. As Grotius did in
regard of the Netherlands and the Vereenigde Oostindische Compagnie (Dutch
East India Company), also his opponents were prompted by the desire to sup-
port the political and economic interests of their own countries.
The theorists of sovereignty of the sea were not endowed with the clear and
elegant Latin style of Grotius, who was also a learned humanist. However they
deserve to be recalled, as they contributed to the development of one of the
three cornerstones on which international law of the sea is based still today
(freedom of the sea, sovereignty of the sea and the completely innovating
regime of common heritage of mankind).

William Welwood

In works published in English (1613)6 and in Latin (1615)7 William Welwood

(1566–1624) exposed several reasons that could support both the doctrine of
sovereignty of the sea in general and the proclamation adopted by King James I
on 6 May 1609 by which Great Britain decided to require licences from foreign

4 On the historical aspects of international law of the sea see Fulton, The Sovereignty of the Sea
(Edinburgh: W. Blackwood, 1911); Cialdea, La formazione dell’ordinamento marittimo nelle
relazioni internazionali (Milano: Giuffrè, 1959); Oudendijk, Status and Extent of Adjacent
Waters—A Historical Orientation (Leyden: A. W. Sijthoff, 1970).
5 Among Grotius’ followers see the Dutch jurist Dirk Graswinckel (1600–1666): Gras-
winckelius, Maris liberi vindiciae adversus Petrum Baptistam Burgum Ligustici maritime
dominii assertorem (Hagae Comitum, 1652); Graswinckelius, Maris liberi vindiciae adversus
Guglielmum Welwodum Britannici maritime dominii assertorem (Hagae Comitum, 1652).
6 Welwood, An Abridgement of All Sea-Lawes (London, 1613) (Chap. XXVII, which is intended as
a reply to Mare liberum, is reproduced in Muller, Mare Clausum—Bijdrage tot de geschiedenis
der rivaliteit van Engeland en Nederland in de zeventiende eeuw (Amsterdam: F. Muller, 1872,
324); the quotations hereunder refer to this edition.
7 Welwood, De dominio maris, juribusque ad dominium praecipue spectantibus, assertio brevis
ac methodica, Cosmopoli, 1615 (the quotations hereunder refer to the edition published at
Hagae–Comitum in 1653).

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vessels engaged in fishing within an area generically designated by the expres-

sion ‘our Coasts and Seas’ of Great Britain, Ireland and the adjacent islands.8
According to Welwood, the close link existing between the territory and
the adjacent waters allows an extension of jurisdiction from the coast up to the
limit of one hundred miles. It is only beyond this limit that the high seas, open
to everybody, begins:

Atqui ut Insulae in mari proxime adiacentes, sic & mare ipsum ad cen-
tum usque millaria pro territorio districtuque illius cui proxime appro-
pinquat, assignatur. Territorium porro omne Dominum habet aliquem
oportet, vel, (quod idem valet) in dominio alicujus sit, necesse est: Mare
ergo terrae proximum ejusdem terrae proximae Dominum agnoscere
cogetur: pars etenim illa maris proxima, sic terrae proximae copulatur, &,
ut sic loquar, incorporatur, ut ne Principi Dominove illius terrae regnive,
vel particulam, usumve alienare aut locare licet magis quam regnum
ipsum regnique patrimonium. Ultra has maris partes terrae proximas,
quicquid reliquum est, vastum videlicet immensumque aequor omnibus
gentibus ad omnes usus indifferenter patere debere, extra omnem con-
troversiam pono.9

The concept of sovereignty over the sea is composed of two primary rights
( jura primaria), relating to navigation ( jus navigandi) and fishing ( jus pis-
candi). In dealing with the latter, Welwood, quotes the passage where the Mare
liberum itself admits that fish can be depleted.10 He then elaborates on the sad
situation of the Scottish fishermen who are left with the burden of paying the
taxes due to the Crown and the Church without being able to catch the fish, as
it was already fully depleted by their Dutch competitors:

Laeduntur vero Britanni, immo spoliantur, dum maria sua peregrinorum

piscatorum quasi inundatione continua sic occupantur, ut non modo
pisces exhauriuntur, sed & piscium congregationes dissipantur; ita ut ubi
ante annos 30 pisces ad ispas aedes in cumulis exundabant, hodie ad

8 Text in Fulton, op. cit., 755.

9 Welwood, De dominio, chap. I, 13.
10 “Deinde vero etiam qui mari imperaret, nihil tamen posset ex usu omnium diminuere,
sicut populus Romanus arcere neminem potuit, quominus in littore imperii Romani cuncta
faceret, quae jure gentium permittebantur. Et si quicquam eorum prohibere posset, puta,
piscaturam, qua dici quodammodo potest pisces exhauriri, at navigationem non posset, per
quam mari nihil perit” (Grotius, De jure praedae, 230).

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multa milliaria dispersi fugatique, magno pauperum piscatorum labore

periculoque egerrime apprehenduntur. Ut verissimum illud Batavi com-
perio: Si quis mari imperaret, quicquam prohibere posset, maxime piscatu-
ram, qua quodam modo dici potest, inquit ille, pisces exhauriri. (. . .) Et
quod deplorandum magis est, piscationem hanc, conditione iniquiter
dispari, utrinque exerceri; illi enim domum remeant & piscibus nostris
onusti, & omni vectigali immunes; dum Scoti praeter justas Ecclesiae
decimas, etiam fisco piscariam, labores eorum sumptusque saepe super-
antem, persolvere, coguntur.11

If the sovereign of the sea were entitled to impose taxes and licenses on all fish-
ermen, fishing activities would be carried out on the basis of measures, such as
closed seasons, that could ensure the conservation of the different resources,
such as cods, tunas and whales, and the public benefit (commodum publicum)
as well:

Vectigalia ista claudit piscaria, ut maris domino, qui onus & curam
illius in se suscipit, merito debita, sed quae synalagma, ut & reliqua illa
imposita, inducit: scilicet ut maris dominus piscatores sollicite protegat,
piscationemque ipsam in commodum publicum prudenter ordinet,
praecipiendo ut statis aptisque temporibus omnia exerceantur: alia enim
est halecum captandarum, alia thymianae piscationis ratio opportunitas-
que. Nam si durante halecum piscatione pisces grandiores, ut thumnos,
balenas, & hujusmodi quis aggredi velit, halecum minorumque piscium
agmina facile dissipabit.12

The need of conservation and sound exploitation of fisheries and the special
interest of the coastal State are duly stressed by Welwood:

If the uses of the seas may be in any respect forbidden and stayed, it
should be chiefly for the fishing as by which the fishes may be said to be
exhaust and wasted; which daily experience these twenty years past and
more, hath declared to be ouer true: for wheras aforetime the white fishes
daily abounded euen into all the shoares on the Easterne coast of

11 Welwood, De dominio, Chap. III, p. 22. On the response see Tullio Scovazzi, “Dici
quodammodo potest pisces exhauriri: Fishing in the Mare Liberum”, in dir. Casado Raigón &
Cataldi, L’évolution et l’état actuel du droit international de la mer—Mélanges de droit de la mer
offerts à Daniel Vignes (Bruxelles: Bruylant, 2009), 853.
12 Id., Chap. IV, p. 40.

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52 Scovazzi

Scotland; now forsooth by the neere and daily approaching of the busse
Fishers the sholes of fishes are broken, and so farre scattered away from
our shores and coasts, that no fish now can be found worthy of any paines
and trauels; to the impouerishing of all the sort of our home-fishers, and
to the great damage of all the Nation.13

Grotius himself prepared a response to Welwood.14 He made clear that his

main purpose in writing the Mare liberum was to demonstrate freedom of nav-
igation and that he used freedom of fishing as a corollary for that aim.

Paolo Sarpi and Giulio Pace da Beriga

In the second decade of the 17th century Paolo Sarpi (1552–1623), legal advisor
of the Republic of Venice, made five ‘writings’ (scritture) on the sovereignty of
Venice over the Adriatic Sea that were intended for the use of the Venetian
political authorities and were published several years after his death.15 In this
case, the stake was not the sovereignty over vast portions of the oceans, but
the legal condition of a big gulf16 largely surrounded along its Northern and
Eastern shores by territories falling under the sovereignty of Venice.
According to Sarpi, Venice acquired sovereignty of the Adriatic Sea in a
progressive way, through the exercise of State authority in different matters,
in particular in the fight against pirates who infested the waters in question.
The Venetian sovereignty over the gulf was confirmed by a custom established
since immemorial time (more than 600 years):

Ma mentre dico che il Dominio del Mare sia naturale a questa Repubblica,
e nato insieme con lei, non voglio intendere, che tutto in un tempo abbia
acquistata la padronanza di tutto l’Adriatico, perché le forze nel principio

13 Welwood, An Abridgement, 330.

14 Grotius, Defensio capitis quinti Maris liberi oppugnati a Guilielmo Welwodo iuris civilis
professore capite XXVII eius libri scripti Anglico sermone cui titulum fecit Compendium legum
maritimarum, published many years after in Muller, Mare clausum cit.
15 Sarpi, Dominio del Mar’Adriatico e sue raggioni per il ius belli della Serenissima Republica di
Venetia, Venetia, 1685. The quotations made hereunder are taken from Sarpi, Opere varie
del molto reverendo Padre F. Paolo Sarpi dell’Ordine dei Servi di Maria teologo consultore della
Serenissima Repubblica di Venezia divise in due tomi, Helmstat, 1750, vol. II, 327, reproduced
in Acquaviva & Scovazzi (a cura di), Il dominio di Venezia sul Mare Adriatico nelle opere di
Paolo Sarpi e Giulio Pace (Milano: Giuffrè, 2007), 75.
16 Today, the Adriatic would be considered as a semi-enclosed sea located within another
bigger semi-enclosed sea (the Mediterranean).

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The Origin Of The Theory Of Sovereignty Of The Sea 53

non erano tante di poterlo custodire, e guardare tutto (. . .). Ma in

pregresso di tempo fatti gl’Imperadori un’altra volta deboli, cessarono di
mandare Armata in Ravenna, ed abbandonata quella parte, che è dal
fiume di Tronto in quà si ritirarono nella Puglia, il che mise in necessità
questa Repubblica, la quale era cresciuta anche di forze a pigliar custodia
più ampia del Mare, e tenerlo netto da’ Corsari per mantener sicura la
navigazione, incominciando dalla Riviera della Marca Anconitana, e dal
Quarner fino a Venezia: il che le costava ogn’anno molto sangue de’ suoi
Cittadini, e molto tesoro [. . .]. Per lo che siccome s’è detto, ch’il Dominio
del Mare è naturale alla Repubblica, principiato insieme con lei nelle
parti prossime a quest’inclita Città, così anche insieme si dee dire, che sia
amplificato successivamente nell’altre parti di esso Mare, che sono
abbandonate da quelli, che le possedevano prima, e prese in protezione,
e custodia dalla Repubblica fin tanto ch’ella s’è fatta Padrona di tutto il
Golfo, e perché ciò eccede sei centinaja d’anni, supera, e di già molto ha
superato ogni memoria, sicché è confermato con la consuetudine
immemorabile.17

The continuous possession by Venice over the Adriatic Sea was confirmed
by the appointment of authorities in charge of the government of it, by
the prohibition of entering into it without the Venetian authorization, by the
enactment of legislation on navigation and by the imposition of taxes:

La possessione continuata attuale, e veduta in tutti i tempi, e si vede

ancora al presente da tutti per quattro continuati, e non mai interrotti
esercizj di Dominio.
Il primo per la continuata elezione de’ Magistrati, ch’esercitano il
Governo particolare pel Capitano di Golfo.
Il secondo per la custodia armata continuamente tenuta, con proibire
ad ogn’uno d’entrarvi armato.
Il terzo per le leggi ogni tempo statuite sopra la navigazione, ed ese-
guite con pena contra i trasgressori.
Il quarto per l’esazioni imposte, e riscosse in ogni tempo.18

17 Sarpi, op. cit., 329–336.

18 Id., 336. Sarpi points out that possession must be exercised in a continuous way which covers
not only the past, but also the present time. Otherwise the legal title is lost: “Le quali cose
essendo tutte notorie, non può questo Dominio esser dedotto in controversia, nè disputato;
ma resta solo il continuar la possessione coll’esercizio de’ medesimi atti giurisdizionali,
opponendo la forza a tentativi, che fossero fatti in contrario; perchè siccome le ragioni, ed i
titoli de’ privati sono cadaveri senz’anima, quando non sieno vivificati dalla forza della legge

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54 Scovazzi

Sarpi takes into consideration the opposite theory of freedom of the sea, as
exposed by ‘some Dutch writers’ (the reference to the anonymous author of the
Mare liberum is evident here) and by the Spanish jurist Vázquez de Menchaca:19

Per la prima ragione dicono, che nelle Leggi spesso si ritrova, che il Mare
non è d’alcuno, ch’è comune di sua natura, ch’è pubblico per ragione delle
genti, che non può esser occupato, perché non può esser confinato, nè
posto dentro i termini; e però non può esser posseduto. Aggiungono, che
siccome l’aria, ed il lume sono comuni, perché per l’uso d’uno non viene
impedito il poter valersi dell’altro, così parimente è comune il Mare; per-
ché per l’uso, che uno abbia d’esso navigandolo, non viene impedito, che
non lo possa navigare un altro; per la qual ragione anche difendono, che il
Mare non si possa acquistare eziandio per lunghissima, ed immemora-
bile prescrizione; delle quali ragioni si vagliono alcuni Scrittori Olandesi
per mostrare, che dagli Spagnuoli non può esser loro proibita con ragione
la navigazione all’Indie; e Ferdinando Vespio Dottor Spagnuolo trattando
questa materia fa grand’invettive contra que’ Giureconsulti, i quali hanno
detto, che i Veneziani, ed i Genovesi sieno Padroni ne’ loro Mari, e pos-
sano proibire la navigazione ad altri, dicendo che sono opinioni contrarie
alla Natura; cioè, che nel Mare niun può avere uso, se non comune.20

As regards possession, according to Sarpi there is no reason to make a hardly

tenable distinction between land and sea. It is in the common interest if the
sea is occupied by a State, for this would make the marine spaces safer and less
exposed to acts of violence:

e del giudizio, che danno il vigore; così la ragione, ed il titolo del Principe sono cadaveri,
quando non sieno animati dalla forza, ed uso di quella, dalla quale ricevono la vita” (ibidem,
337).
19 Grotius acknowledges the contribution provided to him by Vázquez de Menchaca (1512–
1569), who had already sustained (Vasquius Menchachensis, Controversiarum illustrium
aliarumque usi frequentium libri tres, Venetiis, 1564, book II, chap. 39) that the use of the
sea must be common to everybody, as marine resources cannot be exhausted, and had
excluded that sovereignty over the sea could be acquired through prescription or custom:
“Verum omnem hanc quaestionem diligentissime tractavit Vasquius, decus illud Hispaniae,
cujus nec in explorando jure subtilitatem, nec in docendo libertatem umquam desideres”
(Grotius, De jure, 236). On the position taken by Alberico Gentili, who also made some
remarks on the freedom of the see in his De iure belli libri III, published for the first time in
1598, see Tullio Scovazzi, “Alberico Gentili e il diritto del mare”, in Vassalli di Dachenhausen,
ed., Atti del Convegno in memoria di Luigi Sico (Napoli: Editoriale Scientifica, 2011), 489.
20 Sarpi, op. cit., 349.

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Ma questo Scrittore [= Vázquez de Menchaca], ed altri, che seguono la

sua opinione hanno poco considerato, come s’intende che il Mare per
legge naturale sia comune; imperocché non è comune altrimente
per Natura, nè più, nè meno di quello, ch’è comune la Terra, la quale Dio,
e la Natura hanno concessa tutta al Genere umano, e non l’hanno divisa;
hanno però lasciato nella podestà degl’Uomini di dividerla, secondo la
loro comodità, ed utilità, siccome giustamente un popolo, che ha trovata
una Regione non posseduta da alcuno, ha potuto occuparla, e farla tutta
sua, proibirne l’uso ad un altro senza offesa di Dio, e della Natura, anzi
con divina permissione, ed approvazione; così parimente chi ha trovato
un Mare non custodito, e non guardato da alcuno ha potuto per sua uti-
lità pigliarne la custodia con consentimento di Dio, e degli Uomini; anzi
come in Terra a pubblico servizio del genere Umano comple, che le
regioni sieno divise, e custodite, perché così si rendono sicure dalle vio-
lenze; e quelli che ne hanno assunto il Dominio usano le forze nella
custodia; dove che se non fossero appropriate per l’imperfezione umana
di trascurar le cose comuni, resterebbero neglette ed esposte ad ogni
ingiuria; così torna a pubblico servizio di tutti, che i Mari sieno resi sicuri;
nè mai alcuno potrà trovar ragione di questa chimerica differenza, che
vogliono mettere frà la terra, e l’acqua; anzi le stesse ragioni d’occupa-
zioni, possessioni, prescrizioni, e consuetudini, le quali danno ragione in
terra, la danno parimente in acqua.21

A distinction can instead be made between the air and the sea, as only for the
latter there is a need that a State exercises authority to keep the waters free
from pirates. The State in question has the right to levy taxes on navigators not
because they use the sea, but because they are also bound to contribute to the
expenses that are made for the benefit of everybody:

L’esempio dell’aria, e del lume non sono a proposito, perché nell’aria non
possono mettere impedimento i cattivi Uomini all’uso; e perciò non ha
bisogno d’essere custodita dall’ingiuria loro; ma il Mare sarebbe da’
Corsari turbato, e reso senza alcun buon uso; nè si fanno pagar dazj a’
Naviganti, perchè usano, navigando, il Mare, poiché quello non si con-
suma, ma si fanno pagare, perché non si può tenere il Mar sicuro senza
spese, secondo quella sicurezza e ’l benefizio loro; onde è di dovere, che
contribuiscano; cosa naturale, che chi è a parte dell’utilità, sia anche a

21 Id., 350.

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56 Scovazzi

parte del peso; ed avendo così statuito la Maestà divina, che chi è protetto
dal Principe lo riconosca colle contribuzioni, e co’ Dazj.22

Sarpi, taking advantage of a passage that could be found in Grotius’ Mare libe-
rum itself,23 points out the difference between the possession of the oceans,
which was claimed by Spain, and the possession of much a more restricted
sea, which was claimed by Venice:

Non è pari la controversia trà gli Spagnuoli, e gli Olandesi alla Causa della
Serenissima Repubblica; prima perché le pretensioni degl’Olandesi non
sono sopra un Mare serrato, limitato, posseduto, e custodito con fatiche,
e spesa da tempo immemorabile, com’è questo di Venezia; trattano
dell’Oceano, che per la sua immensità da niuna Potenza umana può esser
guardato tutto. Più s’aggiugne, che ancora non eccede la memoria degli
Uomini il principio della navigazione degli Spagnuoli già meno di
cent’anni principiata; laddove nell’Adriatico il Dominio è nato colla
Repubblica, e stabilito da consuetudine immemorabile; perloché non si
ha da fare alcuna comparazione di queste ragioni.24

According to Sarpi, the extent of sovereignty over the sea cannot be expressed
in a predetermined distance from the shore, but is based on the needs of the
coastal State:

Cercano i Giureconsulti quanta parte del Mare appartenga a ciascheduna

Città: ed alcuni d’essi hanno detto cento miglia; ma parlando propria-
mente ella è tanto grande, quanto può ad operare a suo uso, senza ingiu-
ria de’ Vicini; perché una grande, e popolata Città sul Mare, la quale
abbondi di siti terrestri, dove cavi il suo vitto, avrà pochi, che vogliano far
il mestiere di Pescatore, e si valerà di poco Mare, dove una picciola Città
con un poco di commodità in Terra attenderà a cavare il vitto dal Mare, e

22 Id., 350.
23 “Nemo jam non videt ad usum rei communis intercipiendum nullam quantivis temporis
usurpationem prodesse: cui adjungendum est, etiam eorum qui dissentiunt auctoritatem
huic quaestioni non posse accommodari. Illi enim de mediterraneo loquuntur, nos de
oceano; illi de sinu, non de immenso mari, quae in ratione occupationis plurimum differunt.
Et quibus illis indulgent praescriptionem, hi littora mari continua possident ut Veneti et
Januenses, quod de Lusitanis dici non posse modo patuit” (Grotius, De jure praedae, 241).
24 Sarpi, op. cit., 350.

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si valerà di gran parte d’esso; e non altrimente hanno voluto intendere i

Giureconsulti de’ cento miglia; ponendo un numero determinato per un
incerto; cioè le Città sono Padrone di tanta parte di Mare, di quanta
hanno bisogno di valersi senza ingiuria d’altri, se fossero ben cento
miglia.25

Similar ideas were expressed in the same period by Giulio Pace da Beriga
(1550–1635), who also supported the sovereignty of Venice over the Adriatic
Sea.26 According to Pace also the sea can be occupied and the State that con-
trol a given sea is entitled to prohibit non-authorized navigation:

Ita etiam communio maris: adeo ut per mare a nemine occupatum navi-
gatio sit omnino libera: per mare autem occupatum ab aliquo principe
(hoc verbo etiam respublicas complector) liberam habeant navigatio-
nem qui sunt illi principi subiecti: alij vero eatenus habeant, quatenus
idem princeps eis permittit.27

The extent of sovereignty over the sea depends on the capacity of control and
on the needs of the coastal State. In other words, the sea is the territory of
maritime States:

Addit ex Aristotile in politicis, mare civitatibus maritimis esse territo-

rium, unde sumunt alimenta, & auxilia. Sed quemadmodum in terra, ita
etiam in mari, quaelibet civitas tantum possidet, quantum occupare,
regere ac tueri potuit & ut in singulis personis, ita etiam in Civitatibus, &
in Principibus obtinet ut non ad aequalitatem arithmeticam redigantur,
nec ad necessitatis normam; sed alij plus, alij minus obtineant, etiam
quam sibi necessarium videatur.28

25 Id., 346.
26 Pacius A Beriga, De dominio maris Hadriatici disceptatio, Lugduni, 1619, reproduced in
Acquaviva & Scovazzi, op. cit., n. 15., 119. On this work see Acquaviva, Giulio Pace: la
giurisdizione di Venezia sul Mare Adriatico, in Acquaviva & Scovazzi, op. cit., n. 15, 39.
27 Pacius A Beriga, De dominio, 42.
28 Id., 56. Also Pace recalls that Venice had acquired sovereignty over the Adriatic Sea as the
result of possession of it since immemorial time (ibidem, 80).

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Serafim Freitas

An analytic reply to the arguments exposed by Grotius in the Mare Liberum

came in 1625 in the book De justo imperio Lusitanorum Asiatico, written by the
Portuguese jurist Serafim Freitas (1570–1633)29 in support of the claims and
interests of Spain and Portugal (both States were joined in a royal union from
1580 to 1640).
Much of the elaboration by Freitas is devoted to the question of the legal-
ity and the erga omnes effect of the bull Inter Caetera of 14 May 149330 by
which Pope Alexander VI donated to Spain (more precisely to the sovereigns
of Castile and Aragon) all the islands and all the mainland, discovered or to be
discovered, located westward of an imaginary line joining the poles and drawn
100 leagues west of the islands of the Azores and Cape Verde.31
Nevertheless Freitas also deals in general with the question of sovereignty
over the sea. According to him and unlike what assumed by his anonymous
opponent (Incognitus, that is Grotius), things which are common under gen-
eral international law can be acquired by a State under a special regime:

Tum etiam quia post ius adquisitum in illis, quae antea iuregentium com-
munia erant, iam non agitur de illo iure communi, ut putat Incognitus,
sed de speciali, & privato competenti ei, qui sic, adquisivit, ut multis
exemplis illustrari potest . . .32

The fight against pirates, that can be conducted by every State, is the kind of
activity that grants sovereignty over the sea to the State that has in fact carries
it out:

29 Freitas, De justo imperio Lusitanorum Asiatico, Vallisoleti, 1625 (reprinted, with an

introduction by M. Caetano, in Lisbon in 1960–1961). See Alexandrowicz, “Freitas versus
Grotius”, The British Year Book of International Law (1959): 162.
30 Text in Du Mont, ed., Corps universel diplomatique du droit des gens, vol. 3. (The Hague:
P. Husson et. Charles Levier, 1726–1731), 302, and (with translations in English and French) in
Annales d’Études Internationales (1973), 309.
31 The immediate reaction of Portugal, another Catholic power very active in overseas
expansion, led to the conclusion of a bilateral treaty signed by Castile-Aragon and Portugal
at Tordesillas on 7 June 1494. The parties divided among themselves all the lands and islands,
discovered or to be discovered. They shifted the line to 370 leagues west of the Cape Verde
islands and agreed that all lands and islands belonged to Portugal, if located East of the line,
or to Spain, if located West of the line.
32 Freitas, De justo, chap. X, para. 26.

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Et quamvis Incognitus hanc protectionem in mari agnoscat, ut tamen dif-

ficultatem effugiat, respondet eam protectionem de iuregentium compe-
tere aequaliter non minus Imperatori quam alijs Principibus, cum agatur
contra piratas (. . .). Nos autem replicamus id verum esse ante praeccupa-
tionem omnibus competere, post ea vero illius proculdubio erit, qui suis
sumptibus mare tutum a piratis reddendi onus in se suscepit, vel cui
Provinciarum adiacentium Imperium pertinet . . .33

Freitas addresses his most difficult obstacle by sustaining that, even though
because of human incapacity it is difficult to occupy the whole ocean, parts of
it can be subject to occupation:

Nec huic iurisdictioni, & occupationi repugnat vel maris immensitas, vel
natura & qualitas, ut pungit Incognitus. Nam quoad immensitatem, argu-
mentum concludit non posse omnem Oceani tractum occupari, idque
propter nostram impotentiam, non tamen inde sequitur, nec partem
occupationis capacem esse . . .34

According to Freitas, the extent of sovereignty over the sea depends on the
capacity of the State to control the waters in question:

Et ex omnium etiam Incogniti suffragio pars maris terrae adiacens ad

illius dominium pertinent, ad quem & terra: circa spatio vero discordant
scribentes, ut advertimus supra (. . .). Ergo cum ille maris districtus a iure
naturali non diffiniatur, consequens est dicamus, & Imperio, ac iurisdic-
tione prolatari posse, vel restringi ex dominantis potentia, sicut & in
arida maioribus, minoribusve territorijs urbes circumscribuntur.35

The subsequent pages of Freitas’ work are devoted to the difficult task of prov-
ing that Spain and Portugal also acquired by acquisitive prescription and cus-
tom a legal title over the lands and seas that the Pope had donated to them.

33 Id., chap. X, para. 36.

34 Id., chap. X, para. 38.
35 Id., chap. X, para. 40.

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60 Scovazzi

John Selden and Pietro Battista Borgo

After Welwood, the reasons of Great Britain were upheld also by the English
jurist John Selden (1564–1654) who published in 1635 a book entitled Mare
clausum.36 In his very erudite work, he tried to demonstrate two basic assump-
tions. First, that the sea is capable of occupation as if it were land: “Non alia
habebatur tutelae maris quam telluris seu terrestris provinciae ratio”.37
Second, that Great Britain had already acquired sovereignty over the North
Atlantic waters (Oceanus Britannicus), especially as far as the activities of navi-
gation and fishing were concerned: “Ut transeundi, ita & Piscandi libertatem
a Regibus Angliae, seu territorii Marini dominis, impetratam comperimus”.38
Genoa, another maritime republic established in the Italian peninsula, also
claimed sovereignty over the portion of the Mediterranean called Ligurian Sea.
The determination of the extent of the waters in question was not fully clear. In
support of the claim, Pietro Battista Borgo (dates of birth and death unknown)
published in 1641 a work based on Selden’s model.39 Also according to Borghi,
the sea can be occupied, including through control operated by a military fleet.
He also points out that the coastal State interests can be affected not only by
fishing activities carried out by foreign vessels, but also by navigation exercised
by foreign competitors of national merchants:

Sed falsum est maris dominum ex navigatione, & piscatu aliorum, non
sentire detrimentum. Navigatio namque exterorum ijs, qui mare acco-
lunt, utilitatem & commodum minuit, qui fortasse id mercaturae genus
exercerent, quod exteri exercent. (. . .) In piscatu clarius elucet incommo-
dum; nam si exteri piscentur in mari, seu pisces, seu margaritas, seu cora-
lia seu simile quippiam, mare piscibus redditur infrequentius, alijsque
facile exhauritur.40

36 Seldenus, Mare clausum seu de dominio maris libri duo (Londini, 1635).
37 Id., book II, chap. XIV.
38 Id., book II, chap. XXI.
39 Burgus, De dominio Serenissimae Genuensis Reipublicae in mari Ligustico libri II (Romae, 1641).
40 Id., book I, chap. XI.

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The Origin Of The Theory Of Sovereignty Of The Sea 61

The Οutcome of the Βattle

The theoretical battle between the freedom and sovereignty of the sea had a
quite obvious outcome based on what occurred in States practice.41 In fact, all
the claims to authorize foreign navigation in entire oceans and seas remained
devoid of any concrete possibility of enforcement. What it was possible to
enforce were claims to regulate fishing activities and protect neutrality from
acts of naval belligerency within a narrow belt of coastal waters.
Some years after the publication of Mare liberum, Grotius himself wrote
in his general treatise on international law that his theory of freedom of the
sea was intended for the open seas and was not related to limited extents of
waters, such as bays or straits, that could be occupied by the coastal State:

Videtur & mare occupari potuisse ab eo, qui terras ad latus utrumque
possideat, etiamsi aut supra pateat ut sinus aut supra & infra ut fretum,
dummodo non ita magna sit pars maris, ut non cum terris comparata
portio earum videri possit.42

In the last period of his life Grotius clearly remarked that what deserved to be
discussed in the near future was not the theoretical question of the possibility
to occupy the marine space in itself, but the practical problem of how to draw
the boundary between the coastal waters, which are subject to occupation
within a reasonable limit, and the high seas, which is reserved for the regime
of freedom: “Puto non ut disputetur an mare in jus proprium cujusquam possit
concedere, sed quanta cuique pars cessura sit”.43

41 As remarked by the eminent scholar to whom this collection of essays is dedicated,

“également sur la base du droit coutumier fut résolue, comme on le sait, la question de la
suprématie maritime à la fin du XVIIème siècle en faveur de la these de Grotius, pour des
raisons d’ordre juridique aussi bien que politique. L’Angleterre, qui n’avait plus besoin
de raisons pour continuer à défendre les formules érudites et fausses de Selden, remplaça
la puissance maritime du Portugal et celle de l’Espagne” (Hugo Caminos, “Les sources
du droit de la mer”, in R.-J. Dupuy & Vignes, ed., Traité du nouveau droit de la mer (Paris:
Bruylant, 1985), 58.
42 Grotius, De jure belli ac pacis libri tres, Parisiis, 1625, book II, chap. III, para. VIII. But more or
less the same concept can be found also in the Mare liberum (see supra, note 27).
43 Letter written by Grotius in 1637, in Briefwisseling van Hugo Grotius, vol. 8, ed. P.C. Molhuysen,
(The Hague: Nijhoff, 1928), 303.

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62 Scovazzi

It thus appears that with a minor, but sensible, concession Grotius won the
battle against all the supporters of sovereignty of the sea, despite the many
efforts that the latter deployed in their learned and often redundant writings.
Easy and elegant, as in Grotius’ style.
In 1702 the Dutch jurist Cornelis van Bynkershoek (1673–1743) gave a logical
response to the pending question of the extent of coastal States’ sovereignty.
If the decisive element is possession, that is the concrete exercise of State
authority accompanied by the intention to possess, the limit of sovereignty
is given by the extent of waters that the coastal State can effectively possess.
The effectiveness of possession can be granted by the continuous navigation
by a fleet of a certain extent of waters. But (and here is the most characteris-
tic aspect of the thought of Bynkershoek) the control of the sea from the sea
should be replaced by the control of the sea from land. It follows that the limit
of the sovereignty of the coastal State is the range of space that can be covered
by the weapons placed on land (the so-called cannon shot rule). The underly-
ing idea, which is still today retained in international law of the sea, is that
legal titles over coastal waters have an accessory character with respect to titles
established on land.

Existimem itaque, eo usque possessionem maris proximi videri porrigen-

dam, quousque continenti potest haberi subditum; eo quippe modo,
quamvis non perpetuo navigetur, recte tamen defenditur & servatur pos-
sessio jure quaesita; neque enim ambigendum est eum possidere con-
tinuo, qui ita rem tenet, ut alius eo invito tenere non possit. Unde
dominium maris proximi non ultra concedimus, quam e terra illi impe-
rari potest, & tamen eo usque; nulla siquidem sit ratio, cur mare, quod in
alicujus imperio est & potestate, minus ejusdem esse dicamus, quam
fossam in ejus territorio.
Quare omnino videtur rectius, eo potestatem terrae extendi, quousque
tormenta exploduntur, eatenus quippe cum imperare, tum possidere
videmur. Loquor autem de his temporibus, quibus illis machinis utimur:
alioquin generaliter dicendum esset, potestatem terrae finiri, ubi finitur
armorum vis; etenim haec, ut diximus, possessionem tuetur.44

It was evident that the vast ocean could never be possessed by any fleets
or weapons placed on the coast and had to remain free: “Hunc [= vastum
Oceanum] non occupari, certe possideri non posse res est oppido manifesta:

44 Van Bynkershoek, De dominio maris dissertatio, Lugduni Batavorum, 1744 (published for the
first time in 1702), chap. II.

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The Origin Of The Theory Of Sovereignty Of The Sea 63

omnes quippe omnium principum naves ei possidendo vix ac ne vix quidem

suffecerint”.45
But the battle fought by the supporters of sovereignty of the sea was not
completely lost. They introduced a latent element of subjectivism and
dynamic instability into the overall picture of law of the sea. If the basic factor
is the need of States, any limit could be overcome and replaced by another, as
a consequence of new needs and changing circumstances. Yet the subsequent
historical development of international law of the sea shows that most rel-
evant changes in the rules are linked to claims to extend State sovereignty over
waters in the light of new interests and concerns.
In fact, also the principle of freedom of the sea has a relative character,
as any other legal principle and, with the passing of time, it has undergone
a process of progressive weakening. The erosion of the principle of freedom
of the sea, as far as new interests and activities required a specific regulation,
has been the main trend in the evolution of international law of the sea and
such erosion has increased at an irresistible pace in the second half of the 20th
century by the creation of new legal concepts (continental shelf, exclusive
economic zone, common heritage of mankind). Will the balance struck in the
present United Nations Convention on the law of the sea (Montego Bay, 1982)
block such a natural process of erosion?46

45 Id., chap. VII.

46 The use of the adjective “natural” already shows that I give to the question a negative
answer.

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 Chapter 5

Reflections on the ‘Abstention Doctrine’ in the

Diplomatic History of Modern Ocean Law

Harry N. Scheiber

Introduction

The modern transformation of ocean law is, at this writing, in almost exactly
its seventieth year. For only a few weeks after the guns fell silent in the Pacific
theatre and Japan finally surrendered to the Allies,—and with the global com-
munity facing the desperately difficult challenges of widespread human suffer-
ing and the rebuilding of devastated economies—the U.S. Government issued
what became known as the “Truman Fisheries Proclamation”. Published on
September 28, 1945, this proclamation, along with another of the same day
regarding the U.S. claim to ownership and control of its adjacent continental
shelf, struck a swift and largely unexpected blow to the established legal order
of the oceans. In this brief paper, I offer a set of modest reflections on an epi-
sode in the early phase of the ocean-law transformation, beginning four years
after the fisheries proclamation was issued, viz., the U.S. advocacy of a policy
commonly termed the ‘abstention doctrine’.
Although it is seldom any longer given significant attention in the literature
on law of the sea, the abstention doctrine and its brief history seem well wor-
thy of re-evaluation from the standpoint of our own day.
A retrospective view, as offered in the pages that follow, deals with the context
of its development in the U.S. policy process, its immediate impact by dint of
its incorporation into the International North Pacific Fisheries Convention
of 1952, and, finally its longer-term contribution to the development of what
has become the sweeping transformation of ocean law since 1945.
Celebrating a parallel seventy-year anniversary, we honor here the bril-
liant career in international law that commenced when the young Argentine
lawyer Hugo Caminos first undertook advanced postgraduate studies at the
University of California, Berkeley, and then further research at UCLA and at
Columbia University, during the academic year 1945–46—the very moment,
fortuitously, when the Truman Fisheries Proclamation launched the train of
profound changes that have provided the focus of much of Judge Caminos’s
scholarly and juridical activities ever since.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_006

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Reflections on the ‘ abstention doctrine ’ 65

His academic year in the three American universities was a time of excep-
tional perplexity internationally with regard to the newly announced Truman
policies; and of course it quickly became a time witnessing spirited initiatives
and counter-initiatives by other countries in response to the U.S. proclama-
tion. Every State was then necessarily engaged in reevaluating and readjusting
basic foreign policies and positions on international law, as the sun rose on the
postwar world and the new emerging order and institutions in international
law, finance, and trade. But now, in addition, the ministries of foreign affairs
and fisheries interests everywhere also had to absorb the shock of the U.S.
Government’s apparent abandonment of its long-standing role as a powerful
champion of the dominant ‘freedom of the seas’ regime.1
For the United States itself, the turmoil created by the Truman Proclamation
meant that a new policy position was needed in order to serve U.S. interests
and at the same time advance the cause of a new equipoise and stability in
ocean law. The new policy would not emerge until 1949–50, when it was set
forth by Washington under the rubric ‘abstention doctrine’.

The Fisheries Proclamation and Failure of Implementation

President Truman’s fisheries proclamation announced that the United States

intended to establish ‘conservation zones’ (of undefined boundaries and area)
well out to sea beyond the three-mile line that so long had marked the outer
limit of U.S. sovereignty. With this single stroke, the U.S. Government dramati-
cally destabilized the inherited ocean-law regime in which it had long played a
leading role as one of the world’s dominant maritime powers. The global com-
munity therefore was suddenly facing the spectacle that the long-standing
global ocean regime was being shattered, with no clear prospect of a new legal
framework being built in its place that carried a realistic hope of early accep-
tance at the level that the older legal precepts had enjoyed.2

1 Ann L. Hollick, U.S. Foreign Policy and the Law of the Sea (1981): 56–60.
2 Id., 56–60, 68–81; Harry N. Scheiber, Inter-Allied Conflicts and Ocean Law, 1945–53: The
Occupation Command’s Revival of Japanese Whaling and Marine Fisheries (Taipei: Institute of
European and American Studies, 2001), 10–23. [Hereinafter cited as Inter-Allied Conflicts]
This is not to say by any means that the Grotian order, enforced by the naval power of the
great maritime states, especially the United Kingdom and the United States, had been entirely
free of challenges and tensions over the three-mile rule. Indeed, as Stefan A. Riesenfeld many
years ago famously demonstrated with an extraordinary depth of historical documentation,
the ‘three mile rule’ had never been without challenge or uniformly advocated and/or applied
even by its principal champions in the modern era. See, inter alia, Stefan Riesenfeld, The

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66 Scheiber

Ironically, the U.S. Government never actually followed through; indeed,

in a matter of only a few months it had become clear that the Proclamation
had been a diplomatic blunder of the first order. This was so because domes-
tic political realities, reinforced by some overriding security and ideological
considerations, undermined the American government’s will to implement
the ‘conservation zone’ concept. These pressures against implementation
came from a range of sources: (a) from the U.S. Navy, with its concern to
keep the sea lanes open globally for deployment and transit of the fleet;
(b) from the distant-water segment of the fishing industries (especially from
the Pacific tuna interests) that feared exclusion of their vessels from offshore
waters, as other nations were moving to expand their own zones of control and
to impose exclusionist regimes in formerly free high seas areas; and (c) from
the internationalist wings of the policy planning and diplomatic ranks of the
U.S. government itself, opposed as these officials were to the unilateralist style
and form of the proclamation and its plan.
Hence no U.S. conservation zone was established; and by December 1948,
after four years of inaction despite the hopes (and continuing demands) of
the West Coast and Alaskan salmon industry for protection from foreign com-
petition in ‘their’ offshore waters in the Northeast Pacific quadrant, the State
Department had effectively abandoned even the pretense of an intention to
undertake implementation. It began vigorously asserting once again, instead,
the U.S. commitment to the three-mile rule.3
Meanwhile, in the process that is well chronicled in the canonical historical
and legal literature on how the Grotian order of the oceans eroded after 1945,
other nations aggressively seizing the opportunity given them by the United
States to declare extended offshore jurisdiction over fisheries. Some moved to
assert even full sovereignty over vastly extended adjacent areas of what had
been the traditional high seas immune from such state controls under the
expansive terms of Grotian doctrine. And so, with remarkably swiftness, a
sequence of policy initiatives and an increasingly legitimized new realpolitik
was set in motion with regard to ocean resources. The Pandora’s box had indeed

Protection of Coastal Fisheries Under International Law (Washington: Carnegie Endowment

for International Peace, 1942).
3 The shift in policy was made evident in a speech (given in Dec. 1948) by the State Department
fisheries officer Wilbert Chapman, “U.S. Policy on High Seas Fisheries”, 20 Dep’t State Bulletin
(1949): 67–71.

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Reflections on the ‘ abstention doctrine ’ 67

been opened, and a distinct and memorable moment in ocean-law history was
set in motion: the era of extended jurisdiction and of ‘ocean enclosure.’4
The movement’s dynamic consisted of the well-documented process of
post-1945 oceans diplomacy: the series of regional and international confer-
ences, the International Court of Justice’s validation of limited abridgments
of the inherited legal order of coastal fisheries, the extended comprehensive
study of ocean law by the International Law Commission, the inexorable rise
in number of coastal nations declaring fisheries zones or economic zones as
far out as 200 miles—all culminating, in the UN meetings from which there
finally emerged the 1982 treaty, UNCLOS, with its framework for a comprehen-
sive regime of obligations and rights that has now served for three decades as
a basic framework of ocean governance (commonly termed ‘the constitution
for the oceans’).5
While this global enclosure movement was gathering momentum, the
United States confronted a further unique complication with regard to its
position on ocean law: This was the dilemma of how to square its newly re-
adopted position against ocean enclosure with the objective of accelerating
(especially after the outbreak of the Korean War) the termination of the Allied
Occupation and the conclusion of a peace treaty and security treaty with the
Japanese nation restored to full sovereignty.6 These objectives were fraught
with difficulties in the domestic political arena: The American salmon industry,
in league with other nationalistic forces, represented a formidable barrier to
any peace treaty settlement that would leave Japanese fishing interests free
to re-enter American waters off the Pacific shore. An exclusionist agreement, to
keep Japan out of their long-time fishing grounds in the Bering Sea and the
Northeast Pacific, was the sine qua non for West Coast votes needed to ratify
the peace treaty now sought so urgently by the White House.

4 This history is recounted authoritatively in the works by Lawrence Juda, International Law
and Ocean Use Management: The Evolution of Ocean Governance (New York: Routledge, 1996),
103–200; and Hollick, op. cit.
5 William T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (Oxford:
Clarendon Press, 1994), 1–25; Juda, op. cit.
6 Once the hostilities against South Korea began, the State Department fisheries officer
stated in 1951, American “opportunities for using duress” against Japan in any diplomatic
negotiations “quite vanished, so far as fisheries matters are concerned.” Letter from Wilbert
Chapman to Montgomery Phister, March 5, 1951, Chapman Papers, University of Washington
Library, Seattle.

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68 Scheiber

American policy makers thus became engaged in an urgent quest to

achieve what had become three key objectives—(a) an early agreement on
the peace treaty; (b) the exclusion of the Japanese fleets by some formula for
protection from competition by new entrants in the salmon and other fisher-
ies of American offshore waters in the Pacific; and (c) the devising of a policy
regarding ocean fisheries law that would simultaneously be consistent with—
or at least plausibly claim consistency with—the reasserted ‘post-Truman
Proclamation’ position of the United States against ocean enclosure and in
renewed support of the three mile rule.7 The product of this urgent quest was,
in time, the abstention doctrine.

Formulating the New Doctrine of ‘Abstention’

The main burden of devising a way out of the conundrum facing the
State Department fell upon the department’s specialist in fisheries issues,
Dr. Wilbert M. Chapman, who was an accomplished fishery scientist, a geo-
political visionary, and a proven manipulator of the levers of bureaucracy.
Chapman settled early on the idea of obtaining a “voluntary” concession from
Japan by which her fishing fleets would stay out of the offshore waters that
concerned the American industry, yet preserve in principle the ‘freedom of the
sea’ now valued by both the Yoshida government in Japan (still under occupa-
tion control) and, at least in broad formal terms, by the U.S. Government.8
Chapman was aware that as early as 1931, the State Department had
explored with the Japanese the idea of a bilateral agreement that would pro-
vide Japan with trade concessions in return for a halt to licensing of Japanese
fishing vessels to operate in the waters off the American coast. And in 1937,
U.S. Secretary of State Hull had presented Japan with a tentative proposal by
which the United States, Canada, the USSR, and Japan would mutually agree
to each of them abstaining from fishing in designated offshore ‘zones’ of
the other three countries. Both those initiatives were abandoned after brief

7 Harry N. Scheiber, “Origins of the Abstention Doctrine in Ocean Law”, 16 Ecology L. Q (1989).
8 A full study of Chapman’s career and influence in scientific study, management, and
diplomacy of fisheries is provided in Harry N. Scheiber, “Pacific Ocean Resources, Science
and Law of the Sea: Wilbert M. Chapman and the Pacific Fisheries, 1945–70”, 13 Ecology
Law Quar (1986): 381–489. Details on Chapman’s role in the policy formation process, as
recounted in the paragraphs following, are documented fully in that source.

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Reflections on the ‘ abstention doctrine ’ 69

consideration.9 In the 1937–38 season, however, several Japanese factory ships

suddenly appeared in Bristol Bay to conduct fishing for salmon, allegedly as
research operations—an event that inspired a firestorm of protest from both
Canadian and U.S. fishing operators, and that had led to diplomatic protests
from the State Department and a request for a halt to further such ‘incursions;’
the Japanese had voluntarily withdrawn, reserving their government’s right
to license further expeditions in future as being entirely in accord with the
accepted, customary law the high seas.10
Immediately relevant to Mr. Chapman’s thinking in the Occupation-period
debate of policy in Washington was that a voluntary concession had been
extracted in 1937–38, even though it had been unpalatable and reluctantly
given by Tokyo. Ironically, the most important result of the diplomatic
exchange in the late 1930s was that it had been the occasion for setting in
motion the internal debate and process within the U.S. Government in the
administration of President Franklin D. Roosevelt, and extending through
the World War II years, that led in a direct line to the agreement to issue the
Truman Proclamation!11
In any event, by July 1949 Chapman had come to a clear focus on the idea of
some kind of agreement on a protective exclusionist zone; and, he presented
to counterpart officials in Canada in July 1949 a draft treaty text that became
the first step on the diplomatic road to adoption of the ‘abstention’ concept. The
basic plan was for a trilateral U.S.-Canada-Japan convention under which
Japan would agree to waive its rights under international law to fish within
150 miles of the Canadian or U.S. coastlines (an area in which Japanese fish-
ing companies were deeply interested in operating), in return for which Japan
would enjoy a similar abstention area out to 150 miles from its shores—a
marine area in exploiting which the North Americans had not interest what-
ever. When shown the draft, Japanese fisheries and diplomatic officials were
utterly opposed; and although still under tutelage and ultimate control of
the Occupation, they displayed confidence that they could successfully resist
capitulating to terms that they regarded as hostile to their industry’s interests.
On the one hand, with the United States so explicitly concerned to rush
the completion of a peace treaty and to obtain a security pact with Japan, as the
Korean War went on, that the Japanese had a source of strength with which
to bargain; on the other hand, Premier Yoshida had already agreed with the

9 Harry N. Scheiber, “Japan, The North Atlantic Triangle, and the Pacific Fisheries . . . 1930–
1953”, 6 San Diego Int’l Law Jnl. 27 (2004): 76.
10 Id., 38–51.
11 Id., 51–62.

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70 Scheiber

United States to negotiate the fisheries question on a conservationist basis, so

that there was little chance of his permitting Japanese officials to stand firm
against such an agreement.12

Toward the International North Pacific Fisheries Convention

Dissatisfaction with the Chapman formula came from another, perhaps unex-
pected, source: William Herrington, the chief Occupation officer in charge of
fisheries policy and administration. He wrote to Chapman from his Tokyo office
that the 150-mile barrier was an unacceptable idea, being merely “an arbi-
trary determination” and as such indefensible as a general principle of inter-
national law; instead, Herrington—who, like Chapman, was a distinguished
fisheries management expert and scientist—proposed that the proper con-
cept for exclusion from coastal waters in general should be that of protecting
the health of fishery stocks. Hence he had concluded that the proposed treaty
should provide for “mutual agreement to avoid intervention [that is, fishing
by new entrants] in fully matured fisheries that are already under heavy con-
servation restrictions.”13 Since “heavy conservation restrictions” was a phrase
applicable to the U.S. and Canadian salmon industries, the inclusion of that
proviso in Herrington’s proposal was potentially of crucial importance to the
negotiations. Ostensibly of universal applicability as a principle for fishery pro-
tection, in reality it was of very limited applicability outside a few fisheries in
European and North American waters. This fact, as will be noted below, was
of great potential advantage to Japan—a point not lost on the officialdom in
Tokyo.
Having introduced so explicitly the concept of “fully matured fisheries,”
Herrington had succeeded in placing at the center of discussion the ‘maximum
sustained yield’ standard (MSY), which had gained currency among fishery sci-
entists and management experts: the notion that at a given point in level of
exploitation of a stock, additional fishing effort would produce harm to the
stock’s health rather than produce additional yield. Although it would later be

12 Scheiber, op. cit., n. 2, 177–181.

13 Letter from William Herrington to Chapman, April 26, 1950, in the Wilbert M. Chapman
Papers, University of Washington Library Special Collections, Seattle.
For a perceptive analysis of Herrington’s career, see Amy Toro, “Transformation in
Fisheries Management: A Study of William C. Herrington”, in K.R. Benson & F. Rehbock,
ed., Oceanographic History: The Pacific and Beyond (Seattle/London: University of
Washington Press, 2002), 423.

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Reflections on the ‘ abstention doctrine ’ 71

largely discredited by bio-statisticians, the MSY idea was gaining wide accep-
tance in expert circles at the time Herrington introduced it.14
Taking into account his record as chief of fisheries policy for the Occupation,
as well as his long prewar service in promoting and designing conservationist
efforts for the American coastal fisheries, there can be no doubt of Herrington’s
belief that embedding the MSY concept in the proposed fisheries treaty could
serve as a model for future international agreements. He was wholly commit-
ted to MSY as a salutary alternative to the cruder approach that he derided as
“fencing off pieces of the high seas” by the coastal states.15
And so in April 1951 Herrington, who now was taking up a new post suc-
ceeding Chapman as the special assistant for fisheries in the State Department,
set out in a memorandum for the Department a more specific proposal—
setting forth a policy that he contended would encourage scientific man-
agement, advance multilateral cooperation to avoid over-exploitation and
depletion of stocks, and provide a formula for advancing progress on the fish-
eries issue so as to smooth the political path for the Japan Peace Treaty. He
titled the memorandum “Some Tentative Ideas;” and it proved in a short time
to be the solid foundation, in the internal politics of the State Department
councils, for a robust introduction of the abstention concept into the larger
fabric of U.S. oceans policy. Any agreement that would bind a State voluntarily
forebear from fishing should begin, he contended, not by referring to exclusion
but by reiterating the traditional principle of freedom of high seas fishing; but
then he spelled out the exception, as to the type of fisheries subject to absten-
tion, specified as:

fisheries which fulfill all of the following conditions: (1) Fisheries which
are full approaching [approaching full] exploitation: scientific evidence
indicates that more intensive exploitation will not produce a substan-
tially sustained increase in yield. (2) Fisheries under extensive scientific
study: concerned countries have been and are expending substantial
sums of money and effort to discover he conditions necessary for main-
taining the maximum productivity of the resource. (3) Fisheries under

14 Stuart M. Kaye, “International Fisheries Management”, Journal of International Wildlife

Law & Policy Vol. 4 nº 3 (2001): 43–60. For critical analyses of MSY that influenced fishery
specialists’ retreat from the concept, see, e.g., the classic article by P.A. Larkin, “An Epitaph
for the Concept of MSY”, 106 Trans. Am. Soc’y Fish. (1977): 1; and M.P. Sissenwine, “Is MSY
an Adequate Foundation for Optimum Yield?”, 3 Fisheries (1978): 22.
15 See, inter alia, William S. Herrington, “In the Realm of Diplomacy and Fish: Some
Reflections on the International Convention on High Seas Fisheries in the North Pacific
and the Law of the Sea Negotiations”, 16 Ecology L. Quar. (1989): 101; Toro, op. cit., n. 14.

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scientific management: management measures are in effect which limit

and/or control the activities of the fishermen of the concerned countries
for the purpose of maintaining and increasing the productivity of the
resource. (4) Fisheries in which its nationals have no current or recent sub-
stantial interest: the citizens of the concerned country have not partici-
pated in the fishery on a substantial scale for the past ten (?) years.
(5) Fisheries non-contiguous with territorial waters: the territorial waters
of the concerned country are not contiguous with the immediate waters in
which the fishery is being prosecuted [a provision designed to protect the
right of Canadian fishers to operate for salmon U.S. coastal waters].16

Three months later, in July 1951, Herrington’s proposal was endorsed by a State
Department committee, recommending a specific list of fisheries—pared
down to three later in the process, being salmon, halibut, and herring—from
which Japan would be excluded if the abstention principle were accepted in
negotiations. From that time forward, there was a determined push from the
United States and Canada to negotiate the agreement with Japan. Formal (and
intensive) negotiations were held in Tokyo, and the trilateral International
North Pacific Fisheries Convention (INPFC) was signed by Japan, Canada and
the United States on May 9, 1952.17
The Japanese delegation reluctantly accepted the exclusion of their salmon
fleet from waters, that is, the “abstention” area, east of the 175 degree longi-
tude line—a dividing line in the Pacific that was adopted provisionally, subject
to further research on the migration patterns of Asian and North American
salmon. However, the Japanese won an important advantage for its commer-
cial fisheries elsewhere in the world: this was because the precedent estab-
lished for abstention carried the provision that Herrington had so carefully
crafted, permitting the coastal state to protect only stocks that were under
scientific study and management and thereby deemed at maximum yield.
Nowhere else in the vast areas where the Japanese fleets would enter in the
next several years of rapid expansion of their operations were there manage-
ment regimes in place that would permit other coastal countries—many of

16 W.C. Herrington, Some Tentative Ideas for US. High Seas Fishery Policy (proposed for
purposes of discussion), (April 1951), manuscript copy in Wilbert C. Chapman Papers,
University of Washington Library, Seattle.
17 Int’l Convention for the High Seas Fisheries of the North Pacific Ocean, May 9, 1952,
U.S.-Canada-Japan, 4 UST 380, 205 UNTS 80. See generally Roy T. Jackson & Wm. F.
Royce, Ocean Forum: An Interpretive History of the International North Pacific Fisheries
Commission (Surrey: Farnham, 1986).

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Reflections on the ‘ abstention doctrine ’ 73

them, such as Australia, deeply concerned to keep Japan’s fleets far distant
from their coasts—that would permit invocation of the INPFC as precedent
for demanding abstention.18
The U.S. Government’s policy on fisheries continued to be guided by
Herrington’s strong hand during the ensuing decade, its central mission now
being to elevate abstention to the status of a universal principle for interna-
tional regimes that could be negotiated in future by other States and serve
in the long run as a basis for sustainable management of high seas fish stocks.
The culmination of that American diplomatic campaign came in the 1955 UN
Technical Conference at Rome, at which Herrington and the U.S. delegation
proposed to incorporate the abstention principle in the international con-
vention on living resources of the sea that was scheduled for negotiation in
Geneva in 1958. There was insufficient support to carry the vote, however, and
both in the Rome conference and in the International Law Commission a year
later, the U.S. delegation had to withdraw its proposal. It would not be intro-
duced again by the United States, or even obtain significant mention in the
debates, during the meetings that followed in the train of negotiations (that is,
in Geneva in 1960, or the three conventions on law of the sea that culminated
in the adoption of UNCLOS in 1982). The debate of high seas fisheries law
was taking an entirely different direction, largely in the spirit of the Truman
Proclamation’s concept of offshore exclusive zones rather than on the concep-
tual line marked out in the failed effort to enshrine abstention as a principle in
the canon of international ocean law.19

Legacy of the Abstention Concept in Ocean-Governance

Development

As embodied in the INPFC and in the failed U.S. diplomatic campaign that fol-
lowed, the abstention principle represented a blend of potentially conflicting
interests and theoretical positions. It was a hybrid concept, as it sought to inte-
grate into a single legal matrix the objectives of exclusion and the objectives
of scientific management based on the MSY concept. For example, unmasking
what he termed the facade of abstention, with its sustainability pretentions,
the Mexican delegate in the 1958 Geneva Convention, Luis Padilla-Nervo,
declared that the policy was more accurately termed “justified exclusion of
third parties”—and he contended that the justification for exclusion must be

18 Scheiber, op. cit., n. 7; Scheiber, op. cit., n. 2, 184–187.

19 Hollick, op. cit., n. 1, chapters 3–6, passim.

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74 Scheiber

legitimate. He thus argued that when nations were critically dependent eco-
nomically on their coastal fisheries, they had a legitimate claim to exclude
other entrants and to create large offshore zones of jurisdiction.20 The mari-
time nations and distant-water fleets were opposed, of course, to this or any
variant that would justify exclusion; and the less developed nations coalesced,
taking advantage of Cold War cleavages, to buttress further the opposition
to the policy. Hence the abstention controversy faded from the continuing
debates, post-1958, on reform of ocean law.
A still longer retrospective view is warranted, it must be said, in assessing
the failed campaign for abstention and whatever legacy it may be credited with
in the subsequent developments in the law of international fisheries.
In the immediate sense, the 1952 tripartite INPFC did serve an invaluable
purpose: the regime it established proved durable, and with adjustments over
time lasted nearly a quarter century and provided a significant level of pro-
tection to the several designated stocks of the Northeast Pacific that might
otherwise have suffered from heavy overfishing and consequent long-term
damage. As Mr. Herrington himself wrote 35 years later, whatever its theoreti-
cal inconsistency or deficiencies as a universal principle, the abstention con-
cept as applied by INPFC was the conceptual basis for a holding action that
was a legacy of no small importance—for it served well as an interim measure
until the larger issues with regard to both EEZ jurisdiction and high seas fisher-
ies law could be worked out. 21
The INPFC agreement came to provide an exemplary management model
for allocation of resources through international agreements based on MSY;
and although re-defined concepts of optimization and sustainability would
challenge and crowed out MSY (or at least its nomenclature) later on, these new
criteria were applied in management in a conceptual scientific-management
framework that drew heavily from the INPFC model. When abstention and
MSY were embedded in the North Pacific convention, at the Tokyo negotia-
tions, the significance of the move was its legacy in placing a science-based
approach squarely at the center of future regime design. This legacy needs
to be recognized as a being of enduring influence, in a complex (though of
course not linear) pattern of influence culminating in 1982 UNCLOS, Article
119: requiring that “best scientific evidence available” be applied by signatory

20 Quoted in Scheiber, op. cit., n. 7, 93.

21 Herrington, op. cit., n. 15. See generally J.L. Kask, “Present Arrangements for Fishery
Exploitation”, in The Future of the Sea’s Resources, ed. L.M. Alexander (Kingston: The
University of Rhode Island, 1968), 56; Kaye, op. cit., n. 14, 60–63; Hollick, op. cit., n. 1,
62–102.

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Reflections on the ‘ abstention doctrine ’ 75

States in their fisheries conservation and management programs; and in the

1995 UN Fish Stocks Agreement as well, there is a specific requirement for
application of “the best scientific evidence available and designed to maintain
or restore stocks at levels capable of maximum sustainable yield.”22
The INPFC also established an institutional model for scientific collaboration
through the creation of a strong multilateral commission structure (improving
and elaborating on the notoriously inefficient version of commission opera-
tion that marked the International Whaling Commission record).23 And not
least important, the diplomacy of abstention lent strong impetus to further
U.S. and other international efforts at formation of regional agreements, albeit
for scientific study and possible imposition of catch limits, rather than on an
abstention basis. Those new agreements included a brace of tropical Pacific
and North Atlantic fishery research and management conventions for which
the United States took the initiative during the period of Mr. Chapman’s tenure
in the government.24
The enduring historical legacy of how abstention briefly took center stage
more than half a century ago is that it broke so dramatically with the heritage
in international law of “freedom of fishing on the high seas.” It gave the impri-
matur to a governance regime on the high seas of the three signatory nation:
Japan, already restored by 1952 to a leading place among the world’s marine
fishing countries; United States, with its super-power status in world poli-
tics; Canada, respected for its dedicated support of multilateral approaches
to international problems. These nations were now committed to a marine
regional organization that would regulate access (and, by extension, to enable
as a corollary the more effective regulation of fishing intensity by the MSY
standard). Consequently, what had been a high heresy in the law—the imposi-
tion of restrictions on high seas fishing—was now a policy embodied in a high-
profile regional agreement involving a vast area of ocean space and (in regard
to the salmon fisheries affected) one of the world’s most valuable commercial
fish stocks.

22 Quotations as cited in David Freestone, “Problems of High Seas Governance”, in The

World Ocean in Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping,
Regional Issues, ed. Davor Vidas & Peter Johan Schei (Leiden/Boston: Martinus Nijhoff,
2011), 123.
23 M.J. Peterson, “International Fisheries Management”, in Institutions for the Earth: Sources
of Effective International Environmental Protection, ed. P.M. Haas et al. (Oxford: OUP,
1994), 249.
24 Herrington, op. cit., n. 15. See generally J.L. Kask, op. cit., n. 21, 56; Kaye, op. cit., n. 14,
60–63; Hollick, op. cit., n. 1, 62–102.

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By the mid-1970s, when the UN initiatives that led to the 1982 UNCLOS
signing had moved to the center of the ocean law reform movement, ‘ocean
enclosure’ was in one sense reaching its climax: the EEZ had already become
an intractable reality, remaining only to be codified in UNCLOS. Yet in another
sense, the central focus and conceptual framework of ocean law reform was
already shifting radically: the objective of sustainability linked to ecosystem
management as its instrumentality, further elaborated by a new emphasis on
biodiversity preservation, now presented a profoundly different face and a far
more complex challenge to fishery science and management. This new phase
of the reforms has been exemplified by the Fish Stocks Agreement of 1995,
providing the blueprint for the regional fishery management organizations
(RFMOs) that have proliferated globally, and which are relied upon to lead in
maintaining the health of the stocks on the high seas and to turn back the
threat posed by IUU fishing activities.25
Without discounting in any way the important qualitative difference
between the objectives and implementation of the abstention doctrine and
those of today’s institutions, the significance of the commonality must also be
recognized.26
The death knell of the old-style high seas “freedoms” had already been
sounded long before the 1995 Fish Stocks Agreement, and indeed fully
three decades prior to the 1982 signing of UNCLOS and its ratification of the
emergent new order in which national EEZs were enclosing so huge propor-
tion of the globe’s ocean space . That crucial break with the doctrine and
practices of tradition had come decisively in 1952, when the imperatives of
the abstention doctrine prevailed at the Tokyo negotiation and signature of the
North Pacific International Fisheries Convention.

25 UN Conference on Straddling Fish Stocks and High Migratory Fish Stocks, UN Doc.
A/50/550 (1995); also, Donald Rothwell and Tim Stephens, The International Law of the
Sea 19–21, 293–319 (2010).
26 Professor Tsuru published in 2004 a prescient article to which am indebted, a paper that
was originally presented at a UC Berkeley meeting of the Law of the Sea Institute, pointing
out the historical continuity and the basic discontinuities in question, albeit reaching
pessimistic conclusions about the prospects for strong progress in realizing through the
RFMOs the heightened goals of this second-phase reform era. Yasuko Tsuru, “Rethinking
the Principle of Abstention: The North Pacific and Beyond”, 28 Marine Policy (2004): 501.

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 Chapter 6

International Courts and Tribunals and the

Development of the Law of the Sea in
the Age of Codification
Tullio Treves

Introduction

The evolution of the international law of the sea in the twentieth century is
characterized by the various attempts at codifying this hitherto mainly custom-
ary branch of international law. Suffice it to recall the work conducted between
World War I and World War II by the Harvard Research on International Law
and by the Institute of International Law, as well as by the League of Nations
with the 1930 Hague Codification Conference and its preparatory work. Most
importantly, we must recall the work within the framework of the United
Nations leading to the 1958 Geneva Conventions and to the United Nations
Convention on the Law of the sea of 1982 (UNCLOS). The six decades between
the establishment of the League of Nations and the Third UN Conference
on the Law of the sea may well be labelled as the ‘age of codification’ of the law
of the sea.
The developments in the age of codification cannot be fully understood
unless one considers the impact of the decisions of international courts and
tribunals. This period is characterized by a growing reliance of States on inter-
national courts and tribunals in order to settle their disputes including those
concerning the law of the sea. In the earlier decades of this period States relied
on arbitral tribunals, while, with the establishment of the Permanent Court of
International Justice (PCIJ) after World War I, and of the International Court
of Justice (ICJ) after World War II, permanent bodies played a pre-eminent role.
After the entry into force of UNCLOS, the importance of international adjudi-
cation is enhanced, as the Convention provides, as a principle, for compulsory
jurisdiction concerning the interpretation and application of the UNCLOS
provisions, giving a key role to arbitration tribunals and to a new permanent
judicial body, the International Tribunal for the Law of the Sea (ITLOS).
The contribution of international courts and tribunals is, of course, unsys-
tematic, as it deals with disputes arising between States, which often relate
to very specific situations, and require the application of particular treaties.

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78 Treves

Still, specific situations stimulate exploration by the parties and the judges
of the scope and contents of general rules. They may also bring the judge to
determine the insufficiencies of existing customary law. As regards the law of
the sea, judicial decisions have had an impact on the codification process by
focussing attention on new issues, proposing solutions sometimes followed
and sometimes opposed by codification conventions. Once codification con-
ventions are in place, the determination of the meaning of their provisions
and their relationship with customary rules is another area in which the work
of international courts and tribunals make an important contribution. This
task is particularly relevant in cases involving States that are not parties to the
relevant conventions. Recent cases submitted to the ICJ involving Colombia1
and Peru,2 not parties to UNCLOS, are pertinent examples.
The review of selected cases that follows shows that decisions of interna-
tional courts and tribunals have thrown light on various key issues in many
areas of the law of the sea and proposed solutions important for the codifica-
tion process or for the interpretation of its results.

The Right to Grant a Flag

An early example of a statement of a customary rule later incorporated in

codification conventions is the Muscat Dhows arbitration between France
and Great Britain. The 1905 award states that: “it belongs to every Sovereign
to decide to whom he will accord the right to fly his flag and to prescribe the
rules governing such grants”.3 This rule is the point of departure for that set
out in the 1958 Convention on the High Seas (CHS) articles 4 and 5 and later in
UNCLOS articles 91–92.

The Freedom of the High Seas and Criminal Jurisdiction

In the SS Lotus judgment of 1927 the PCIJ formulated as follows one the basic
ideas of the law of the sea, that of the freedom of the high seas and its connec-
tion with the exclusive right of the flag State: “vessels on the high seas are sub-
ject to no authority except that of the State whose flag they fly. In virtue of the

1 Nicaragua v. Colombia, Territorial and Maritime Dispute, Judgment of 19 November 2012,

www.icj-cij.org.
2 Peru v. Chile, Maritime Dispute, Judgment of 27 January 2013, www.icj-cij.org.
3 Award of 8 August 1905, www.pca-cpa.org., XI RIIA 83.

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International Courts AND Tribunals IN THE AGE OF CODIFICATION 79

principle of the freedom of the seas, that is to say, the absence of any territorial
sovereignty upon the high seas, no State may exercise any kind of jurisdiction
over foreign vessels upon them”.4 The Court specified, however, that from this
it ‘by no means’ followed “that a State can never in its own territory exercise
jurisdiction over acts which have occurred on board a foreign ship on the high
seas”.5 The further argument made by the Court, that there was no general
international law rule prohibiting Turkey from exercising jurisdiction over the
French officer of a French vessel involved in a collision on the high seas with
a Turkish vessel and causing a number of victims of Turkish nationality, was
controversial.
The International Law Commission (ILC) underscored that the judgment
had been adopted with the casting vote of the President, that it had been
“very strongly criticized and caused serious disquiet in international mari-
time circles” and that the exclusive jurisdiction of the flag and of the national
State of the accused had been adopted in the International Convention for
the Unification of Certain Rules relating to Penal Jurisdiction in matters of
Collisions and Other Incidents of Navigation, signed at Brussels on 10 May
1952. The ILC ‘felt obliged to take a decision’ in view of the Lotus judgment.
“With the object of protecting ships and their crews from the risk of penal
proceedings before foreign courts”, it concurred with the 1952 Convention.6
The CHS art. 11 and UNCLOS art. 97 followed it adopting the view rejected
by the PCIJ.

Innocent Passage and Passage through Straits

An example of the interaction between decisions of international courts and

tribunals and the codification process is the Corfu Channel case between the
United Kingdom and Albania.7 In its 1949 Judgment on the merits the ICJ
stated the rules concerning the duties of the coastal State as regards innocent

4 PCIJ, Ser. A, No 10, Collection of Judgments, the case of the S.S. Lotus, France/Turkey. Judgment
of 7 September 1927, 25.
5 Id.
6 YB ILC, 1956, II, 281.
7 Corfu Channel case, Judgment of April 9th, 1949, ICJ. Reports 1949, 4. A masterly analysis
of this judgment and its influence on the codification work is in the Hague Lectures of the
scholar to whom this paper is dedicated, with affection and admiration: Hugo Caminos,
The Legal Régime of Straits in the 1982 United Nations Convention on the Law of the Sea, 205
Recueil des Cours, (1987–5), pp. 9–245, at 39–43, 51–56.

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passage through its territorial sea including the one according to which the
coastal State has the duty to give appropriate publicity to dangers of navigation
of which it has knowledge in the territorial sea. This rule was based

on certain general and well-recognized principles, namely: elementary

considerations of humanity, even more exacting in peace than in war; the
principle of the freedom of maritime communication; and every State’s
obligation not to allow knowingly its territory to be used for acts contrary
to the rights of other States.8

In stating these rules in the draft article that was to become article 15 of the
1958 Convention on the Territorial Sea and the Contiguous Zone (CTSCZ),
the ILC explicitly stated that the article confirmed the ‘principles upheld’
by the ICJ in the Corfu Channel judgment.9
In the same judgment the Court had to deal with arguments concerning the
(then and now) controversial issue of whether innocent passage through
the territorial sea applies to warships. It did not find it necessary to take a
stand on this question10 as, having determined that the Corfu strait was a strait
used for international navigation, it considered sufficient to state that it was

generally recognized and in accordance with international custom that

States in time of peace have a right to send their warships through straits
used for international navigation between two parts of the high seas
without the previous authorization of a coastal State, provided that the
passage is innocent.11

This formulation was followed in the ILC’s draft articles submitted to

the Geneva Conference (art. 17, para. 4), while the corresponding rule of the
CTSCZ (art. 16, para. 4) added the controversial mention of straits connecting
one portion of the high seas with a territorial sea. While UNCLOS adopts a
more complex regime for straits, a special treatment for those connecting the
high seas with a territorial sea has been retained in article 43, para. 1 a.

8 ICJ Reports (1949): 22.

9 YB ILC (1956), II: 273.
10 ICJ Reports (1949): 30.
11 ICJ Reports (1949): 28.

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International Courts AND Tribunals IN THE AGE OF CODIFICATION 81

Straight Baselines

An unquestionable case in which a judgment formulated the law and was fol-
lowed in codification conventions is that handed out by the ICJ in 1951 in the
Anglo-Norwegian Fisheries case.12 The Judgment states that “for the purpose of
measuring the breadth of the territorial sea, it is the low-water mark as opposed
to the high-water mark, or the mean between the two tides, which has gener-
ally been adopted in the practice of States”.13 Confronted with the existence of
deep indentations and the fringe of islands constituting the Norwegian skjaer-
gaard, the Court holds that, as the latter “constitutes a whole with the main-
land, it is the outer line of the ‘skjærgaard’ which must be taken into account in
delimiting the belt of Norwegian territorial waters”. The low water line cannot
be applied in a case as the one under consideration: when “a coast is deeply
indented and cut into . . . or where it is bordered by an archipelago such as the
‘skjærgaard’ . . ., the base-line becomes independent of the low-water mark,
and can only be determined by means of a geometrical construction”. Such
geometrical approach brings to the method of straight baselines.14
As “the delimitation of sea areas has always an international aspect [and] it
cannot be dependent merely upon the will of the coastal State as expressed in
its municipal law”,15 the judgment states ‘criteria’ to guide courts in assessing
the compatibility of straight baselines with international law. Firstly, “the draw-
ing of base-lines must not depart to any appreciable extent from the general
direction of the coast”. Secondly, the lines must be “sufficiently closely linked
to the land domain to be subject to the regime of interna1 waters”. Moreover,
‘one consideration not to be overlooked’ concerns the existence “of certain
economic interests peculiar to a region, the reality and importance of which
are clearly evidenced by a long usage”.16
The impact of this judgment on the codification process and on the clari-
fication of customary law is beyond doubt. The ILC, reporting in 1956 to the
UN General Assembly stated that it ‘interpreted the Court’s judgement . . . as
expressing the law in force’ and that ‘it accordingly drafted the article on the
basis of this judgment’.17 The language of the Court is repeated in article 5

12 Fisheries case, Judgment of December 18th, I95I, ICJ Reports (1951): 116.
13 ICJ Reports (1951): 128.
14 ICJ Reports (1951): 128–129.
15 ICJ Reports (1951): 132.
16 ICJ Reports (1951): 133.
17 YB ILC (1956): II, 267.

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82 Treves

of the ILC draft and with some additions in articles 4 of the CTSCZ and 7 of
UNCLOS.

Bays

There are cases in which international courts and tribunals found that cus-
tomary law failed to regulate a question with sufficient precision and opened
the way for the codification process to provide such precision. The criteria for
defining the required shape for a bay to be enclosed in internal waters and the
maximum length of the closing line is an example. So the 1910 arbitral award
in the US/UK case regarding North Atlantic Coast Fisheries, while indicating in
general terms the conditions for the control of a bay, stated that: “no principle
of international law recognizes any specified relation between the concavity of
the bay and the requirements for control by the territorial sovereignty”.18 In the
above quoted Fisheries Jurisdiction judgment of 1951, the ICJ stated that:

although the ten-mile rule has been adopted by certain States both in
their national law and in their treaties and conventions, and although
certain arbitral decisions have applied it as between these States, other
States have adopted a different limit. Consequently, the ten-mile rule has
not acquired the authority of a general rule of international law.19

In article 7 of its 1956 draft the ILC proposed precise rules on both aspects
and underlined that: “In adopting this provision, the Commission repaired
the omission to which attention had already been drawn by The Hague
Codification Conference of 1930 and which the International Court of Justice
again pointed out in its judgement in the Fisheries Case”.20 The article was
repeated with some additions in article 7 of the CTSCZ and in article 10
of UNCLOS, both provisions substituting 24 miles for the 15 miles proposed
by the ILC. It seems noteworthy that later, in its 1992 judgment in the Land
and Maritime Frontier case, the ICJ stated that these provisions (including the
precise indication of the 24 mile maximum width of the mouth of the bay)
“might be found to express general customary law”.21

18 The North Atlantic Fisheries Case, Great Britain v. United States of America, award of
7 September 1910, XI RIIA 167, www.pca-cpa.org (24).
19 ICJ Reports (1951): 131.
20 YB ILC (1956) II: 269.
21 Land, Islands and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua
intervening), Judgment of 11 September 1992, ICJ Reports (1992): 351, para. 383.

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International Courts AND Tribunals IN THE AGE OF CODIFICATION 83

Fishing Zones and the Exclusive Economic Zone

The 1974 ICJ judgments on the Fisheries Jurisdiction cases, between United
Kingdom and Iceland and between the Federal Republic of Germany and
Iceland, is a further example of how judicial decisions become intertwined
with codification processes.22 The ICJ went beyond what was decided at
Geneva, but did not dare to take fully into account the contemporaneous devel-
opments brought in full view by the beginning of the Third UN Conference on
the Law of the Sea. While acknowledging that the Geneva Conferences on the
Law of the Sea of 1958 and of 1960 had failed to adopt a decision on the breath
of the territorial sea and on fishery zones, the Court observed that, after the
1960 Conference: ‘the law evolved through the practice of States on the basis of
the debates and near-agreements at the Conference’. And added:

Two concepts have crystallized as customary law in recent years arising

out of the general consensus revealed at that Conference. The first is the
concept of the fishery zone, the area in which a State may claim exclusive
fishery jurisdiction independently of its territorial sea; the extension of
that fishery zone up to a 12-mile limit from the baselines appears now
to be generally accepted. The second is the concept of preferential rights
of fishing in adjacent waters in favour of the coastal State in a situation of
special dependence on its coastal fisheries, this preference operating
in regard to other States concerned in the exploitation of the same
fisheries.23

The Court decided the disputes brought by the United Kingdom and the
Federal Republic of Germany against Iceland on the basis of these two con-
cepts which, in its view, were incorporated in new rules of customary law.
It acknowledged that at the Third UN Conference on the Law of the Sea (started
during the ICJ proceedings) many proposals had been made for an extension
of fishery limits beyond 12 miles. These were, however, in the view of the Court,
mere aspirations “not expressing principles of existing law”. The Court could
not rely on them as this would mean deciding de lege ferenda ‘or anticipate the
law before the legislator has laid it down’.24 It seems difficult to deny that—as
stated in a powerful separate opinion of six judges—the numerous proposals

22 Fisheries Jurisdiction (United Kingdom v. Iceland) Merits, Judgment of 25 July 1974, ICJ
Reports (1974): 3; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) Merits,
Judgment of 25 July 1974, ICJ Reports (1974): 175.
23 ICJ Reports (1974): para. 52 at 23.
24 ICJ Reports (1974): para. 53 at 23–24.

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put forward at the Third UN Conference for the adoption of extended fisheries
zones or exclusive economic zones should have had an impact. The six judges
state in particular that:

The least that can be said . . . is that such declarations and statements
and the written proposals submitted by representatives of States are of
significance to determine the views of those States as to the law on fisher-
ies jurisdiction and their opinio iuris on a subject regulated by customary
law. A number of pronouncements of States in the aforesaid circum-
stances reveals that while the fundamental principle of freedom of fish-
ing in the high seas is not challenged as such, a large number of coastal
States contest or deny that such a principle applies automatically and
without exception to adjacent waters in all parts of the world as soon as
the 12-mile limit is reached.25

About a decade later, in 1985, after the opening to signature, but well before
entry into force, of UNCLOS, in which, as is well known the notion of the
exclusive economic zone of 200 miles, including exclusive rights on fisheries,
was adopted, the ICJ made obsolete its 1974 position. In the judgment on the
Case concerning the continental shelf between Libya and Malta, it adopted
the view that it was “incontestable that . . . the institution of the exclusive
economic zone . . . is shown by the practice of States to have become a part of
customary law”.26

The Continental Shelf and Delimitation of Maritime Areas

In assessing the role played by decisions of international courts and tribu-

nals in the development of the law of the sea in the aftermath of the Geneva
conventions and beyond, the 1969 ICJ judgments on the North Sea Continental
Shelf Cases are particularly relevant.27

25 Joint separate opinion of Judges Foster, Bengzon, Jiménez de Aréchaga, Nagendra Singh
and Ruda, ICJ Reports (1974): 46, at para. 13.
26 Continental shelf (Libyan Arab Jamahria/Malta), judgment of 31 June 1985, ICJ Reports
(1985): 13, para. 34.
27 North Sea Continental Shelf, Judgment of 20 February 1969, (United Kingdom/
The Netherlands, United Kingdom/Denmark and Federal Republic of Germany/The
Netherlands, Federal Republic of Germany/ Denmark), ICJ Reports (1969): 3.

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International Courts AND Tribunals IN THE AGE OF CODIFICATION 85

Firstly, arguing inter alia from the fact that no reservations are allowed
to articles 1 to 3 of the CCS, the Court states that these articles were in 1958
‘regarded as reflecting, or crystallizing, received or at least emergent rules of
customary international law’.28 The judgment lists the issues covered by these
articles, including ‘the seaward extent of the continental shelf’. The rule set out
in the CCS on this issue was soon to appear as inadequate and was replaced
by the different one set out in article 76 of UNCLOS. In the 2012 judgment in
the Nicaragua v. Colombia case the ICJ held that the general rule of article 76,
para. 1, reflects customary law, while it left open the question whether this
applies also to remaining paragraphs of the article.29 This last aspect is dis-
cussed in scholarly writings.30
Secondly, the Court dealt in detail with the question whether the
‘equidistance-special circumstances’ rule set out in article 6 of the CCS for
the delimitation of the continental shelf between States whose coasts are adja-
cent or one in front of the other corresponded to customary law. As it is well
known, the answer was in the negative, and the Court stated that the “delimita-
tion has to be effected by agreement in accordance with equitable principles,
and taking into account all the relevant circumstances”.31
The 1969 judgment was influential on the subsequent judgments of the
Court on the delimitation of maritime areas and on the negotiations at
the Third UN Conference on the Law of the Sea. In particular, the judgment

28 ICJ Reports (1969), para. 63.

29 Territorial and maritime dispute, Judgment of 19 November 2012, www.icj-cij.org, para.
118. In paras 116 and 117 it emerges that while both parties to the dispute were of the
opinion that article 76 para. 1 corresponds to customary law, Nicaragua held that this
applies also to the following paragraphs up to 7, while Colombia stated that there were no
elements of practice to support this view as regards paras 4 to 9.
30 Recently, J. Crawford, “Chance, Order, Change, The Course of International Law, General
Course of International Law”, Recueil des Cours, vol. 365 (The Hague: Brill, 2013), 9–390, at
103 argues that article 76 as a whole corresponds to customary law. In 1990, when UNCLOS
was not yet in force, I examined the question in light of the then existing practice (in
which certain states supported their claims for extending the continental shelf beyond
200 miles by reference to UNCLOS) coming to the conclusion that only paragraph 1 of
article 76 corresponded to customary law, in particular because the role recognized to the
Commission on the Limits of the Continental Shelf could not be included in a customary
rule, while admitting that certain elements of practice showed a trend to go beyond these
conclusions: T. Treves, “Codification du droit international et pratique des Etats dans le
droit de la mer”, Recueil des cours, vol. 223 (The Hague: Brill, 1990), 9–302, at pp. 89–103.
31 ICJ Reports (1969), 101 C1.

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was the basis for the decision not to mention equidistance in articles 74 and 83
of UNCLOS dealing with delimitation of the exclusive economic zone and of
the continental shelf. In fact, these articles only refer to the objective of reach-
ing an equitable result applying unspecified rules of international law. They
thus open the door to unwritten law to be determined by judges and arbitra-
tors. Indeed, the importance, in the application of articles 74 and 83, of cus-
tomary law as emerging from decisions of international courts and tribunals is
stated in the 2006 arbitral award in the Barbados v. Trinidad and Tobago case,32
and in the 2012 ITLOS judgment in the Bangladesh v. Myanmar case.33
The ICJ has stated that articles 74 and 83 correspond to customary inter-
national law, especially in the 2012 judgment in the ICJ case Nicaragua v.
Colombia.34 Such customary status applies especially to the methodology
of delimitation, where jurisprudence has adopted an ‘equitable principles-
relevant circumstances’ rule to be implemented in three steps. As the first
step consists in drawing a provisional equidistance line, to be corrected in
light of relevant circumstances to reach an equitable result, the post-UNCLOS
jurisprudence has come to recognize that the ‘equitable principles-relevant
circumstances’ rule it now adopts is ‘very similar’ to the Geneva ‘equidistance-
special circumstances’ rule.35 An early indication in a similar sense is in the
1977 Anglo French Continental Shelf arbitral award. The award states that

the role of ‘special circumstances’ condition in Article 6 [of the Geneva

Continental Shelf Convention] is to ensure an equitable delimitation;
and the combined ‘equidistance-special circumstances’ rule, in effect,
gives particular expression to a general norm that, failing agreement, the
boundary between States abutting on the same continental shelf is to be
determined on equitable principles.36

32 Arbitration between Barbados and the Republic of Trinidad and Tobago, award of 11 April
2006, UN RIAA, XXVII, 147, para. 222.
33 Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of
Bengal (Bangladesh / Myanmar), judgment of 14 March 2012, in ITLOS Reports (2012): 4,
para. 183.
34 Case Concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgement of 19 December 2012, para. 139 <http://www.icj-cij.org/docket/files/124/17164.
pdf>.
35 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea Intervening), Judgment of 10 October 2002, ICJ Reports, 2002, 303,
para. 288. See T. Treves, “Las controversias de delimitación de áreas marítimas”, in Comité
jurídico interamericano, Cursos de Derecho Internacional, vol. 39 (2012), 197–227, at
220–224.
36 Decision of 30 June 1977, XVIII RIIA, 3, para. 70 at 45.

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International Courts AND Tribunals IN THE AGE OF CODIFICATION 87

The ‘Genuine Link’

One of the most controversial provisions set out in law of the sea codification
conventions is the one providing that, while States are entitled to fix the condi-
tions for granting their nationality to a ship, “there must exist a genuine link
between the State and the ship” (CHS, art. 5, para. 1, UNCLOS, art. 91, para. 1).
The discussion concerns inter alia whether this requirement is such that its
absence entitles another State to refuse to recognize the nationality of the
ship. In its Advisory Opinion of 8 June 1960 on the Constitution of the Maritime
Safety Committee of the International Maritime Consultative Organization, the
ICJ avoided taking a position. It argued that it had reached the conclusion to
rely on tonnage to determine which were the ‘largest ship-owning nations’
interpreting the IMCO Constitution, without need to examine the question of
the genuine link as set out in the not yet in force CHS.37
Almost forty years later, in its 1999 Judgment in the M/V Saiga Nr. 2 case,
ITLOS had the opportunity to consider the subject, in light of article 91, para. 1,
of UNCLOS, and gave a negative answer to the question of whether absence of
the genuine link entitles other States to refuse recognition of the nationality
of a ship. The Tribunal argued especially on the basis of the preparatory work
in the ILC and in the First and Third UN Conferences on the Law of the Sea.
The Tribunal recalled that:

the International Law Commission, in article 29 of the Draft Articles

on the Law of the Sea adopted by it in 1956, proposed the concept of a
“genuine link” as a criterion not only for the attribution of nationality to
a ship but also for the recognition by other States of such nationality.
After providing that “[s]hips have the nationality of the State whose flag
they are entitled to fly”, the draft article continued: “Nevertheless, for pur-
poses of recognition of the national character of the ship by other States,
there must exist a genuine link between the State and the ship”. This sen-
tence was not included in article 5, paragraph 1, of the Convention on the
High Seas of 29 April 1958 (hereinafter “the 1958 Convention”), which
reads, in part, as follows: “There must exist a genuine link between the
State and the ship; in particular, the State must effectively exercise its
jurisdiction and control in administrative, technical and social matters
over ships flying its flag.”

37 ICJ Advisory Opinion of 8 June 1960, ICJ Reports 1960, 150 at 171.

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Thus, while the obligation regarding a genuine link was maintained in the 1958
Convention, the proposal that the existence of a genuine link should be a basis
for the recognition of nationality was not adopted.38
Having observed that UNCLOS ‘follows the approach’ of the CHS,39 ITLOS
concluded that:

the purpose of the provisions of the Convention on the need for a genu-
ine link between a ship and its flag State is to secure more effective imple-
mentation of the duties of the flag State, and not to establish criteria by
reference to which the validity of the registration of ships in a flag State
may be challenged by other States.40

Conclusion

In the international law of the sea, the relationship between codification efforts
and judicial and arbitral decisions is one of reciprocal influences. In most
cases, codification has followed solutions adopted by international judges and
arbitrators. In a few cases, however, disputes submitted to adjudication have
focussed the attention of States and experts engaged in codification efforts on
certain questions, but the results of such efforts have not followed the judicial
solutions, or have gone beyond such solutions. In other cases, the codification
process has given to the adjudicating body important indications concerning
the interpretation of a codification convention. In assessing the question of
whether provisions set out in codification conventions, and presently espe-
cially UNCLOS, correspond to customary law, the consideration of judicial
decisions on the subject considered seem particularly relevant, as is, for inter-
national judges and arbitrators, the consideration of codification conventions.

38 Saint Vincent and the Grenadines v. Guinea, Judgment of 1st July 1999, ITLOS Reports
(1999): 10 at para. 80.
39 Id. at para. 81.
40 Id., para. 83.

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 Chapter 7

The Freedom of Navigation: Modern Challenges

Seen from a Historical Perspective

Rüdiger Wolfrum

Introduction

Article 87 of the UN Convention on the Law of the Sea (Convention) refers,

amongst others, to the freedom of navigation. The origin of the freedom of
navigation, being one of the traditional freedoms, besides the freedom of fish-
ing, dates back to the book of Hugo Grotius, Mare Liberum, sive de jure quod
Batavis competit ad Indicana commercia dissertation.1 This principle consti-
tutes one of the pillars of the law of the sea and stands at the beginning of
modern international law. It is worth remembering that John Selden argued
against the freedom of the sea as a principle in his treatise de mare clausum
but, in fact, he meant the freedom of fishing also proclaimed by Hugo Grotius
rather than the freedom of navigation.
Although this freedom’s existence is well established and its status is not
generally put into question, recent practice indicates that there are numer-
ous modern challenges2 which may result in limitations of that freedom
de iure or de facto. It should be recalled that at the Third UN Conference on
the Law of the Sea a delegate stated by paraphrasing Shakespeare’s Julius
Cesar: “I have come to bury Grotius not to praise him.”3 Therefore some of
the limits introduced should not come unexpectedly. The Convention has
established the basis to do so. One of the most important provisions in this
regard is article 59 of the Convention, although it has not yet been tested in
the jurisprudence of international courts and tribunals. Some of these limits
are well known such as the ones taken with the view to protect the marine

1 This treatise, the twelfth chapter of the advisory opinion for the Dutch East India Company,
De Jure Praedae Commentarius, which was published only in 1868. This Chapter on the
freedom of the sea was published as pocket-sized quarto anonymously in 1609.
2 See on this, for example, Richard Caddell & Thomas Rhidian, eds., Shipping, Law and the
Marine Environment in the 21st Century (London: Law text Publishing, 2013).
3 Quoted in B. Oxman, “The Third United Nations Conference on the Law of the Sea: The
Eighth Session” (1979), AJIL 74 (1980): 39.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_008

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environment. The basis for them is to be found primarily in Part XII of the
Convention. Others serve more specific purposes such as fighting terrorism,
the proliferation of weapons of mass destruction, or they are directed to con-
trol bunkering. In particular coastal States attempt to strengthen their juris-
diction in the exclusive economic zones. This expansionist trend concerning
the exclusive economic zones is motivated by the general desire to enhance the
competences and jurisdictions granted to the coastal States, or even to add
new competences not granted to them, and to restrict the freedoms granted
to third States. One of the weaknesses of the freedom of navigation is that it
is rarely defined positively but negatively, namely via the limits imposed by
international law or national law.
The following contribution will make an attempt to shed some light on the
content of the freedom of navigation without claiming comprehensiveness.
The starting point shall be Hugo Grotius who qualified the freedom of naviga-
tion as a ‘natural right’ of all States. He also gave some indication as to its scope.
In particular of interest are the reasons he gives for upholding the freedom of
navigation.

Reasons Given by Hugo Grotius for the Defence of the

Freedom of Navigation

Hugo Grotius put forward several arguments to defend the freedom of naviga-
tion which are worth reiterating. His starting point was that the sovereignty
over the land is different from any sovereignty over the sea. He held that the
sea is fluid and ever-changing and thus cannot be possessed. A glimpse of
that view is still to be detected in the wording of article 2 of the Convention
which—taken literally—distinguishes between the sovereignty over the terri-
tory, including the internal waters (this sovereignty is taken for granted) and
the sovereignty over the territorial sea (which is based upon the Convention).
Amongst others he stated that the sea was the fundamental avenue for com-
munication and co-operation among States and therefore such avenue should
be free and not controlled by one State4—at his times Spain and Portugal. He

4 Mare Liberum, Chapter I, “Hoc igitur qui tolunt, illam laudatissimam tollunt humani generis
societatem, tolunt mutuas benefaciendi occasiones, naturam denique ipsam violant . . . none
significant satis concessum à natura cunctis gentibusad cunctas adytum?”, in Hugo Grotius,
The Free Sea, trans. Richard Hakluyt, ed. David Armitage (Indianapolis: Liberty Fund, 2004),
p. 11: They, therefore, that take away this, take away the most laudable society of mankind; they

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The Freedom of Navigation: Modern challenges 91

further argued that the resources of the sea cannot be exhausted neither by the
navigation nor by fishing (given today’s knowledge it is evident that Grotius
erred as far as fishing is concerned). On that basis he argued that a resource
or an area which could be used by all without being deteriorated or depleted
must not be monopolized by one State but should be open to all.5 Finally he
argued that a State could only claim an area which it was able to administer
and control effectively, emphasizing that no State could control the sea perma-
nently and effectively. This latter argument may not have the same convinc-
ing force today it had in the beginning of the 17th century. In his Defense of
Chapter V of the Mare Liberum6 against William Welwood, Grotius even more
firmly took the position that land and sea were incommensurable because the
former can be appropriated whereas the latter cannot.7

The Freedom of Navigation (in its various forms) under the UN

Convention on the Law of the Sea

The UN Convention on the Law of the Sea makes ample reference to the free-
dom of navigation such as in article 36 (freedom of navigation in straits used
for international navigation), article 38 (transit passage), article 58 (freedom of
navigation in the exclusive economic zone), article 78, article 87 (high seas). In
this context the right to innocent passage as specified in articles 17 to 26 (in the
territorial sea) and 52 (archipelagic waters) is to be mentioned, too.

take away the mutual occasions of doing good and, to conclude, violate nature herself. . . . do
they not sufficiently signify that nature hath granted a passage from all nations unto all?” See
also H. Grotius, De Jure Praedae Commentaries: A Translation of the Original Manuscript of
1604, vol. 1, ed. G.L. Williams (Oxford: Oxford University Press, 1950).
5 Mare Liberum, Chapter V. “Alterum vero, eas res omnes, quae ita a natura comparatae sunt,
ut aliquo utente nihilominus aliis quibusvis ad usum promiscue sufficiant, eius hodieque
condicionis esse, et perpetuo esse debere cuius fuerant cum primum a natura proditae sunt.”
In the translation of Richard Hakluyt, note 4: The other is that all those things which are so
rained by nature that anyone using them they may nevertheless suffice others whomsoever
for the common use are at this day (and perpetually ought to be) of the same condition
whereof they were when nature first discovered them.
6 Defensio capitis quinti Maris Liberi oppugnati a Guuilielmo Welwodo, translated and
published in David Armitage, The Free Sea, 2004, p. 77 et seq.
7 David Armitage, Introduction to The Free Sea, Hugo Grotius, The Free Sea, trans. Richard
Hakluyt, ed. David Armitage (Indianapolis: Liberty Fund, 2004), p. xix.

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However, none of these provisions provide what freedom of navigation

entails.8 Does it only mean to move by ship from point A to B? If the answer
is affirmative it would render the freedom of navigation a freedom for sport
boats and military vessels. It should not be forgotten that from its beginning—
Hugo Grotius made this quite clear—the freedom of navigation was associated
with commercial activities, the transport of goods, the trading in goods etc.
This was confirmed by the PCIJ in the Oscar Chinn case although it dealt with
the freedom of navigation on a river. The PCIJ stated:

According to the conception universally accepted, the freedom of naviga-

tion . . . comprises freedom of movement for vessels, freedom to enter
ports and to make use of plant and docks, to load and unload goods and
to transport goods and passengers.9

The reason for this lack of definition may rest in the consideration that the
freedom of the high sea is defined negatively.10 Freedom of the sea, and
thus, freedom of navigation, means the freedom of vessels from all outside
interference. The main guarantee of this freedom is that only the flag State
may regulate activities of vessels under its flag at the high sea and take appro-
priate enforcement action; in foreign exclusive economic zones the legislative
jurisdiction is divided between the one of the flag State and for some issues of
the relevant coastal State.
As any other freedom the freedom of navigation is not without limits.
Such limits may serve different purposes, the interest of others in the enjoy-
ment of navigation, or in other freedoms, the interest of the international
community in the protection of the sea and the interests of coastal States in
the enjoyment of their rights. It is impossible to go through all the challenges
or limitations the freedom of navigation is facing. This presentation will
concentrate on three, namely environmental considerations, attempts to
strengthen the security at sea, for example against the threat of terrorism and

8 Even the ILC Commentary on Articles concerning the Law of the Sea does not contain
such clarification, see commentary to article 27, ILC Yearbook, 1956, vol. II, p. 278.
Article 19 having the headline ‘Meaning of innocent passage’ speaks about the limits
to passage—or which activities undertaken during passage renders the latter to be
not innocent and therefore cannot be used for defining the notion of ‘navigation’.
9 Oscar Chinn, Judgment, 1934, P.I.C.J, Series A/B, No. 63, p. 83.
10 See most clearly in this respect the Memorandum présenté par le Secrétariat, Droit de la
mer—le régime de la haute mer, ILC Yearbook, 1950 II, p. 67.

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The Freedom of Navigation: Modern challenges 93

the proliferation of weapons of mass destruction and the limits concerning

certain economic activities such as bunkering. What makes the ensuing limi-
tations or attempted restrictions for the freedom of navigation problematic
is that they are undertaken multilaterally by involving competent interna-
tional organizations as well as unilaterally. Whereas limitations developed
by international organizations can be presumed to have balanced the vari-
ous interests this is not necessarily the case for unilaterally undertaken mea-
sures. Apart from that such limiting measures are not easy to harmonize. Their
cumulative impact on the freedom of navigation/right to innocent passage
may become, from the point of view of the legal framework established by the
Convention, a matter of concern.

The Distribution of Jurisdictional Powers Concerning Navigation

under the UN Convention on the Law of the Sea

The Distribution of Juridical Competences in General

The Convention establishes a legal regime which is based on zones. Coastal
States competences decrease, generally speaking, with the distance from the
coast and, it is to be added, they are less embracing concerning navigation
compared to the exploration or exploitation of the natural resources of the sea.
Additionally to this territorial or rather zonal based approach coastal States
may exercise jurisdiction over foreign merchant ships on the basis of interna-
tional agreements or/and established international standards and practices.
Article 218 of the Convention, for example, accords to port States jurisdictional
power over vessels which are not rooted in the territorial principle.
Coastal States have jurisdiction to adopt laws and regulations relating
to navigational safety and ship-source pollution by foreign ships in their
exclusive economic zone (legislative jurisdiction)—where vessels enjoy the
freedom of navigation—and they have corresponding enforcement juris-
diction. The jurisdictional competences—legislative as well as enforcement
jurisdiction—of States are broader concerning their territorial sea and their
archipelagic waters although ships under a foreign flag enjoy the right of inno-
cent passage in these maritime areas.
Special regimes apply, though, for major international shipping routes
through straits used for international navigation even if such straits are within
the territorial sea of the coastal State. The transit passage regime implies that
navigation is not governed by the regime concerning innocent passage but by
a particular regime more liberal concerning navigation. The transit passage

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regime has been described to range between the freedom of navigation and
innocent passage.11 Under the transit passage regime, freedom of navigation
and the right of over-flight exists for vessels and aircraft, operating in their
normal mode. While the coastal States jurisdictional powers are limited
by the Convention on the Law of the Sea they may still impose controls on
navigation.

Competences to Enhance the Safety of Navigation and for the

Protection of the Marine Environment
Competences of the Coastal States
Article 21 of the Convention tries to establish a delicate balance between the
interests of international navigation and the right of coastal States to regu-
late the passage of foreign ships in the territorial sea. The approach is twofold.
Some actions are qualified as not being protected under the notion of innocent
passage in article 19 para. 2 of the Convention. But additionally, a coastal State
may regulate innocent passage pursuing different objectives under article 21
para. 1 of the Convention. Paragraphs 1a and 1b refer to navigation, maritime
traffic etc, while paragraph 1c relates to both, maintenance of communica-
tion systems and the preservation of the marine environment. Paragraphs 1g
and h refer to article 245 of the Convention which accords to coastal States
an exclusive right to regulate, authorize and conduct marine scientific
research in its territories and to custom, fiscal, immigration or sanitary mat-
ters. To put it into a nutshell, article 19 of the Convention excludes certain
actions from the protection under the notion of innocent passage, whereas
article 21 of the Convention opens the possibility for coastal States to limit the
freedom of navigation.
However, these limits are limited themselves. According to article 21 para. 3
of the Convention, national laws and regulations shall not affect design, con-
struction, manning or equipment of foreign ships unless they give effect to
generally accepted international rules and standards. This is a significant
restriction concerning the prescriptive power of coastal States. It reflects a
basic concept incorporated throughout the Convention, namely to protect
the integrity of global maritime navigation and to minimize interference
with the coastal State jurisdiction. The practice of some coastal States does
not honor this essential principle.
Article 42 of the Convention limits the legislative jurisdiction of coastal
States bordering international straits in relation to transit passage. Such laws

11 E.J. Molenaar, Coastal State Jurisdiction over Vessel Source Pollution (1998), 287.

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The Freedom of Navigation: Modern challenges 95

may only be taken in respect of the safety of navigation and maritime traffic
and the prevention and control of pollution.

Measures which may be Taken on the Basis of Specific

International Instruments
Four conventions contain provisions that allow for the adoption of rules and
standards by coastal States applicable to foreign merchant ships. These are
the Convention on the Collisions at Sea,12 which provides for the possibility of
traffic separation schemes, the International Convention for the Prevention
of Pollution of the Sea by Ships 1973/78 (MARPOL),13 the International
Convention for the Safety of Life at Sea (SOLAS)14 and the Basel Convention
on the Control of Transboundary Movements of Hazardous Movements and
their Disposal.15
In particular, the rules prepared by the IMO under MARPOL have now
reached a new quality. So far, the objective to protect the marine environment
against pollution was achieved by prohibiting certain activities on ships, such
as the introduction of waste into the water. The adoption of the mandatory
technical and operational energy efficiency measures adopted by IMO in 201116
meant to reduce the amount of greenhouse gas emissions from ships. They
force the shipping industry to change their fuel and thus significantly interfere
with the freedom of navigation. Apart from that the objective is to protect the
world climate whereas the protection of the marine environment is an indirect

12 Convention on the International Regulation for Collisions at Sea, 1972. This Convention
was designed to update and replace the Collision Regulations of 1960, particularly with
regard to Traffic Separation Schemes following the first of these, introduced in the Strait
of Dover in 1967.
13 International Convention for the Prevention of Pollution from Ships with Annexes
(Annex I, Regulation for the Prevention of Pollution by Oil; Annex II, Regulation for the
Control of Pollution from Noxious Liquid Substances in Bulk; Annex III, Prevention of
Pollution by Hazardous Substances Carried by Sea in Packaged Form; Annex IV, Prevention
of Pollution by Sewage from Ships; Annex V, Prevention of Pollution by Garbage from
Ships; Annex VI Prevention of Air Pollution from Ships.
14 The SOLAS Convention in its successive forms is the most important of all international
treaties concerning the safety of merchant ships. The first version was adopted in 1914, in
response to the Titanic disaster, the second in 1929, the third in 1948, and the fourth
in 1960. The present, the 1974 version, has been updated and amended on numerous
occasions.
15 Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and
Their Disposal, 1989.
16 These measures were included in Annex VI.

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one. MARPOL obliges coastal States to enforce the ensuing obligations by pro-
hibiting infractions and by punishing offenders.
The system works on two levels. The rules are developed and set on the
international level whereas the enforcement rests with States, the flag States,
the coastal States and the port States. As can be seen from articles 217, 218
and 220 of the Convention, States enjoy a certain amount of discretion in
respect of their national legislation enacting the internationally adopted stan-
dards. This again is relevant for the enforcement. However, sanctions issued by
coastal States or port States against violations may not amount to hampering
innocent passage unless otherwise permitted under international law.17
Ships’ routing is laid down in Regulations V/10 of the Annex to the SOLAS
Convention 1974 which was incorporated in 1994. From the stipulation can
be taken that, on the one hand, the regulation tries to underscore the role of
IMO in the establishment of mandatory ships’ routing and on the other it rec-
ognizes, though indirectly, that coastal States alone may establish such rout-
ing system as well. This is all the more relevant when the systems are located
within the territorial sea. States are not under an obligation to submit such
systems in the territorial sea to IMO for adoption but they may do so. This is in
line with article 22 of the Convention.
Regulation 11 of the Annex to the SOLAS Convention 1974 focuses on the
subject of mandatory ship reporting systems. However, coastal States are also
entitled to establish unilaterally such a reporting system in the territorial sea
on the condition that the operation does not result in undue interference with
innocent passage of foreign ships.
The Basel Convention regulates transboundary movements of hazardous
wastes and their disposal at the international level. Apart from that coastal
States are entitled to introduce appropriate national legislation to prevent and
punish illegal traffic in waste. The equivalent is the Bamoko Convention.18 In
the context of the Basel Convention it was discussed whether vessels, which
are meant to be dismantled and which are proceeding to the place where
the dismantling is going to take place, are to be considered as waste (and not
as vessels any more) and thus should be seen as a prohibited movement of
hazardous waste. This issue is now being approached under the Hong Kong
International Convention for the Safe and Environmentally Sound Recycling
of Ships adopted in May 2009. The Convention elaborates a control system
for ship recycling obligating flag States and ship owners, recycling States and

17 Art. 24, para. 1 of the Convention.

18 Bamoko Convention on the Ban of the Import into Africa and the Control of Trans-
boundary Movement of Hazardous Waste within Africa, 1991.

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The Freedom of Navigation: Modern challenges 97

recycling facilities. Still vessels earmarked for dismantling are considered

to come under the scope of the Basel Convention. From the point of view
of the Convention this is problematic as long as these vessels move on their
own power.

Measures Initiated by IMO

Apart from measures provided for in the international conventions, certain
restrictions upon the freedom of navigation may be based upon measures
taken by IMO.
IMO may designate Particularly Sensitive Sea Areas, a power provided for
through Annex 2 to IMO Resolution A.927(22). These are areas which need
special protection through action by IMO because of their significance for rec-
ognized ecological, socio-economic or scientific reasons and because it may
be vulnerable to damage by international shipping activities. The legal basis of
such power of IMO may be sought in article 192 and 194 of the Convention on
the Law of the Sea as well as in article 211 para. 1 of the Convention. It is to be
noted that the designation of a Particularly Sensitive Sea Area as such has no
binding effect. However, the PSSA Guidelines require the adoption by IMO of
‘associated protective measures’. The type of measure that may be adopted is
left to IMO. Up to date IMO has prescribed ships routing measures and ships
reporting systems under SOLAS, Special Areas under MARPOL and a range
of other measures adopted through IMO resolutions. To the extent such mea-
sures are being based upon existing international agreements the resulting
infringements upon freedom of navigation may be considered justified.19 But
there is also the view being taken that whatever is being decided by IMO is to
be considered to conform to the Convention on the Law of the Sea.20
In this context the introduction of a mandatory pilotage system has become
a controversial issue.21 Australia and Papua New Guinea made the attempt to

19 See Julian P. Roberts, Ben M. Tsamenyi, Tim Workman, & Lindy Johnson, “The Western
European PSSA Proposal: A ‘Politically Sensitive Sea Area’”, Faculty of Law (2005): 431.
Available at: http://works.bepress.com/ben_tsamenyi/32, 431; K.M. Gjerde, “Protecting
particularly sensitive sea areas from shipping: a review of IMO’s new PSSA guidelines”.
Proceedings of the Expert Workshop held at the International Academy for Nature
Conservation, Isle of Vilm, ed. H. Thiel & J.A. Koslow (2001): 123–132.
20 See DOALOS LEG 87/16/1WP.3.
21 See for further details concerning the Torres Strait: Donald R Rothwell., “Compulsory
Pilotage and the Law of the Sea: Lessons learned from the Torres Strait”, ANU College
of Law Research Paper No. 12 (2012); Robert C. Beckman “PSSAs and Transit Passage—
Australia’s Pilotage System in the Torres Strait Challenges IMO and UNCLOS”, ODILA,
nº 38, 4 (2007): 337.

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have a mandatory pilotage system introduced in the Torres Strait in connec-

tion with the designation of that strait as a Particularly Sensitive Sea Area by
IMO. The issues seems to have been intensively debated within IMO and one
may safely say that the majority of States seems to have been reluctant to con-
cede to IMO the right to introduce a mandatory pilotage system in an interna-
tional strait. This issue is open for further legal reasoning.

Measures for the Protection of the Security at Sea

Measures Taken on the Basis of Multilateral Agreements

The 2005 Protocol to the Rome Convention22 is one of those recent legal
instruments which may, in the future, provide for a basis to limit the freedom
of navigation.23
The Protocol introduces a new article 8 b is into the Rome Convention con-
cerning the procedures to be followed if a State Party desires to board a ship
flying the flag of another State Party outside the territorial water of any State,
when the requesting Party has reasonable grounds to suspect that the ship or
a person on board the ship is, has been, or is about to be, involved in the com-
mission of an offense under the Convention.
The authorization and cooperation of the flag State is required before such
boarding can take place.24 Such authorization may be made in general or ad
hoc. A State Party may notify the IMO Secretary-General that it will grant the
authorization to board and search a ship flying its flag, its cargo and persons
on board if there is no response within four hours. A State Party can also notify
that it authorizes a requesting Party to board and search the ship, its cargo and
persons on board, and to question the persons on board to determine whether
an offense has been, or is about to be, committed. Finally, a State Party may
grant the authorization to board a ship under its flag when requested. Art. 8 b
is of the 2005 Protocol includes several safeguards when a State Party takes
measures against a ship, including boarding. Unfortunately, the Protocol lacks
an appropriate dispute settlement clause in spite of the fact that flag States and
inspecting States may disagree as to whether the investigation was justified in
substance and in form.

22 See note 3; on its legislative history see Tiribelli (note 21) at 146 et seq.
23 This international agreement which supplements the Rome Convention, was developed
in direct response to the 11 September 2001.
24 Article 8 b is, para. 4 b of the 2005 Protocol.

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The Freedom of Navigation: Modern challenges 99

Measures Taken on the Basis of Bilateral Arrangements

The multilaterally mandated measures against the maritime transport of
weapons of mass destruction are being supplemented by measures having
a bilateral basis, namely the Proliferation Security Initiative (PSI). It is the
objective of PSI, originally announced by the US President Bush in 2003,
to interdict the “transfer or transport of weapons of mass destruction, their
delivery systems, and related materials to and from States and non-State actors
of proliferation concern”.25
Most problematic is subparagraph 4(d) of the Statement, which calls on PSI
participants:

To take appropriate actions to (1) stop and/or search in their internal

waters, territorial seas, or contiguous zones (when declared) vessels that
are reasonably suspected or carrying such cargoes to or from states or
non-state actors of proliferation concern and to seize such cargoes that
are identified; and (2) to enforce conditions on vessels entering or leaving
their ports, internal waters or territorial seas that are reasonably sus-
pected of carrying such cargoes, such as requiring that such vessels be
subject to boarding, search, and seizure of such cargoes prior to entry.

Intercepting ships, which are under the suspicion to carry weapons of mass
destruction, without the consent of the flag State raises the question of the
compatibility of such action with the law of the sea at least as a matter of prin-
ciple. Under the Convention, the competence to intercept a vessel depends on
the circumstance where such action is undertaken in the territorial waters of a
State, in the exclusive economic zone or on the high seas.
As long as the interception of a vessel under flag different from the inter-
cepting State takes place in the internal waters by the coastal State concerned,
such act cannot be contested under the law of the sea. The situation is more

25 See on this initiative M. Byers, “Policing the High Seas: The Proliferation Security
Initiative”, AJIL, nº 98 (2004), 526; Ch. Schaller, “Die Unterbindung des Seetransports
von Massenvernichtungswaffen”, SWP-Studie (2004); W. Heintschel von Heinegg, The
Proliferation Security Initiative—Security vs. Freedom of Navigation, Israel Yearbook on
Human Rights, vol. 35 (2005), 181; Maximilian Malirsch & Florian Prill, “The Proliferation
Security Initiative and the 2005 Protocol to the SUA Convention”, ZaöRV, nº 67 (2007):
229–240; Jack I. Garvey, “The International Institutional Imperative for Countering the
Spread of Weapons of Mass Destruction: Assessing the Proliferation Security Initiative”,
Journal of Conflict & Security Law, vol. 10 (2005): 125–147; Samuel E. Logan, “The
Proliferation Security Initiative: Navigating the Legal Challenges”, Journal of Transnational
Law & Policy, vol. 14 (2004–2005): 253–274.

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complicated in the territorial sea. According to article 25 of the Convention

coastal States may take action against a passage which is not innocent. The
provisions of the Convention on innocent passage are to be considered as cus-
tomary international law.
According to article 19, para. 1, of the Convention passage is not innocent
if it is “prejudicial to the peace, good order or security of the coastal state”
or if the ship is engaged in one of the activities listed in article 19 para. 2, of
the Convention. Taken literally article 19 of the Convention excludes that the
coastal States limits the exercise of passage with the view to protect the interest
of the community of States. It may act in its own interests only. Although arti-
cle 21 of the Convention gives the coastal State the authority to adopt laws and
regulations in accordance with international law this competence is limited.
None of the issues which may be regulated on that basis would cover the tran-
sit of weapons of mass destruction. It should be noted in this context that the
transport of nuclear substances is, according to article 23 of the Convention,
not in contradiction with the principle of innocent passage.26 Finally, article 27
of the Convention cannot, at least not in itself, serve as a basis for controlling
ships in transit. Here again it is required that either the coastal State’s action is
being undertaken to defend its own interests (para. 1, lit. (a) and (b)), or such
act is being undertaken upon request of the master of the ship or the flag State
or for suppression of illicit traffic in narcotic drugs or psychotropic substances
(para. 1, lit. (c) and (d)). It has been argued that coastal States may declare
the transport of weapons of mass destruction and the relevant soft wave as a
crime under their national criminal law and take enforcement action on the
basis of article 27 of the Convention.27 Those advocating this position would
have to argue that the crime has been committed on board of the ship passing
through the territorial sea and that this crime is of a kind to disturb the peace
of the country28 or the consequences of the crime extend to the coastal State.29
This interpretation constitutes a problematic circumvention of the inherent
limits of article 27 of the Convention. On the same basis the whole transport of
nuclear waste of the transport of dangerous goods could be prohibited.

26 It is astonishing that this article is rarely referred to, equally it is rarely stated that this is
an article insisted upon by the United States of America.
27 Heintschel von Heinegg (note 24) at 193; Logan (note 24) at 263.
28 Article 27 para. 1 (b) of the Convention.
29 Article 27 para. 1 (c) of the Convention.

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The Freedom of Navigation: Modern challenges 101

The Involvement of the Security Council

It has been argued that a passage can be considered to be not innocent if the
conditions of Security Council Resolution 1540 (2004) of 28 April 2004 are
met.30 It has further been argued that States may, on the basis of Resolution
1540, enact national legislation declaring the transport of weapons of mass
through their territorial seas a criminal offence which would allow the coastal
State concerned to take actions as prescribed in article 27 para. 1, of the
Convention on the Law of the Sea. Certainly Resolution 1540 provides that
the proliferation of weapons of mass destruction constitutes a threat to
international peace. Even if one accepts that the Security Council may exercise
such quasi legislative power this does not render the transit of such material
automatically non-innocent. The definition of innocent is quite narrow.31
The legal situation in respect of international straits raises particular prob-
lems given the enhanced status of international navigation. It is being dis-
cussed controversially32 whether ships carrying weapons of mass destruction
without being targeted against a particular State may be interdicted on the
high seas by warships of another State without the consent of the flag State
concerned.
The exclusive jurisdictional relationship between a flag State and its vessel
on the high seas is well rooted in customary international law. In the Lotus case
the Permanent Court of International Justice held that “vessels on the high
seas are subject to no authority except that of the State whose flag they fly”.33
Article 92 of the Convention codifies this principle. Several exceptions are pro-
vided for, e.g. if there is a waiver by the flag State, or when the vessel is without
a flag, or the vessel is engaged in piracy, slavery or unauthorized broadcast-
ing. Accordingly there is a strict limit against boarding and inspecting a vessel
under a flag different from the one of the investigating vessel.34
Security Council Resolution 1540 (2004) affirms, as already stated, that ‘pro-
liferation of nuclear, chemical and biological weapons, as well as their means of
delivery, constitutes a threat to international peace and security’ and requires

30 Heintschel von Heinegg (note 24), at 194.

31 See article 19 of the Convention.
32 See Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge: Cambridge
University Press, 2009), 232 et sqq.; Rosemary G. Rayfuse, Non-Flag State Enforcement in
High Seas Fisheries (Leiden: Martinus Nijhoff Publishers, 2004), at 59 et seq; Heintschel
von Heinegg, (note 25) at 194; S. Kaye, “The Proliferation Security Initiative in the
Maritime Domain”, Israel Yearbook on Human Rights, vol. 35 (2005), 223.
33 PCIJ ser. A 1927 No. 9 at 25.
34 See article 110 of the Convention.

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102 Wolfrum

inter alia, all States to ‘adopt and enforce appropriate effective laws which pro-
hibit any non-State actor to [. . .] transport, transfer or use nuclear, chemical or
biological weapons and their means of delivery.’35 The central question which
remains is whether every State may take relevant countermeasures.
Measures taken against the threat of terrorism may result in a temporary
limitation of the freedom of navigation. Several Security Council Resolutions,
in particular, Resolution 1373 (2001) form the necessary international law basis
for the marine interception operations undertaken by various naval units in
the Indian Ocean and off the coast of Somalia. Flag States may not object to an
investigation of ships under their flags by warships of other States, as long as
the measures taken are proportionate.
These measures mandated multilaterally, namely by the Security Council,
are to a certain extent supplemented by precautionary measures taken by
port authorities in an attempt to provide stricter control of ships’ cargo. The
container security initiative set up by the United States attempts to extend
the zone of security outward by shifting security and screening activities to the
border of the exporting country.36 On 19 September 2002, Singapore became
the first country to sign an agreement with the United States of America allow-
ing U.S. customs inspectors to ensure that cargo shipping containers bound
for the United States are not being used for terrorist attacks. Several other port
authorities have agreed to join the U.S. container safety program and more
have joined. Such initiative is to be considered in the context of freedom of
navigation, too, since container ships not having undergone this system face
repercussions in US ports.

Unilateral Measures

Apart from the limitations imposed upon the freedom of navigation induced
by international law, several coastal States are limiting the freedom of naviga-
tion beyond that. For example, the Maldives require prior authorization for the
entry of all foreign vessels in its exclusive economic zone. Other States such as
Guyana, India and Pakistan have established the competence to declare cer-
tain areas in their exclusive economic zones where they can regulate the entry
and passage of foreign vessels. Other States prohibit the freedom of navigation
for vessels of a particular design (for example single hull tankers) or carrying

35 Preambel and para. 2.

36 As to the details see Marjorie Florestal, “Terror on the High Seas”, 72 Brooklyn Law Review
(2007): 385–447.

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The Freedom of Navigation: Modern challenges 103

a particular cargo (such as radioactive nuclear material) through the exclusive

economic zones. More generally, several coastal States claim—contrary to the
Convention—general police powers in their exclusive economic zone.

Tentative Conclusions

As indicated in the introduction, measures having the effect or that are even
intended to limit the freedom of navigation, transit passage or innocent pas-
sage are being undertaken on the multilateral level, namely IMO and the
Security Council, on the basis of bilateral arrangements, or unilaterally. There
is no doubt that the objective pursued, namely the protection of the marine
environment or the protection against the proliferation of weapons of mass
destruction or the protection against terrorism are—at least in principle—
valid ones. Nevertheless, there are some concerns. It is worth considering
whether IMO or the Security Council really have a sound legal basis for act-
ing as legislators—a function they exercise de facto in the cases mentioned in
the context of this contribution. It has to be seen that multilateral actions are
being supplemented by measures undertaken on the basis of bilateral arrange-
ments (PSI, Container Security Initiative, agreements on the interception of
vessels) or even unilaterally (unilaterally declared mandatory pilotage). The
reasons for such supplementary measures are dissatisfaction with the results
achieved on the multilateral level and the desire for unilaterally tailored solu-
tions. For vessels, this mixture of restrictions which seem to lack coherency is
difficult to cope with. At present, the limitations faced may still be tolerable
but if this trend prevails—and there are clear indications that it will—a reas-
sessment may be called for.

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 PART 3

The United Nations Convention on the Law of the Sea

(UNCLOS)

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 Chapter 8

UNCLOS at 30: Some Reflections

Tommy Koh

I have vivid memories of the year 1982. I remember the high emotion in the
conference room, at the UN in New York, on 20 April 1982, when I put the UN
Convention on the Law of the Sea, to the vote. The vote was 130 in favour, 4
against with 17 abstentions. I also remember the final session of the confer-
ence, held in the Montego Bay, Jamaica, from the 6th to the 10th of December
1982. When the Convention was opened for signature, on the 11th December, it
was signed by 119 States. Let me share a few thoughts and reflections.
First, I mourn the passing of so many of our dear friends and colleagues.
Those who played a leadership role in the negotiations include Andres Aguilar,
Shirley Amerasinghe, Hans Anderson, Alfonso Arias-Schreiber, Christopher
Beeby, Alan Beesley, Keith Brennan, Jorge Castaneda, Tom Clingan, Paul Engo,
Jens Evensen, Reynaldo Galindo Pohl, S.P. Jagota, Elizabeth Mann Borgese,
Arvid Pado, Elliot Richardson, Willem Riphagen and Shabtai Rosenne.
Second, I am gratified that the Convention has enjoyed near universal sup-
port. The Convention has 162 Parties (161 States plus the European Union). The
few States, such as, the United States of America, which have not yet acceded
to the Convention, have accepted the Convention as the applicable law,
I would discourage the efforts of some of our friends who wish to revise
the Convention or to convene a new conference to negotiate a new treaty
on the high sea. The Convention has served us well and it would be extremely
unwise to undermine its integrity and effectiveness.
Third, my dream that the Convention will become the “constitution” of the
world’s oceans has come to pass. It is the constitution of the oceans because
it treats the oceans in a holistic manner. It seeks to govern all aspects of the
resources and uses of the oceans. In its 320 articles, and 9 annexes, as supple-
mented by the 1994 General Assembly Resolution 48/263 relating to Part XI
of the convention and the 1995 Agreement relating to the conservation and
management of straddling fish stocks and highly migratory fish stocks, the
Convention is both comprehensive and authoritative.
Fourth, in recent years, some environmentalists have expressed the view
that the Convention gives too much weight to navigational rights and too
little to protecting the marine environment. This view is mistaken. When I

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108 koh

was chairing the negotiations at the Earth Summit, I included chapter 17 in

Agenda 21, in order to harmonise UNCLOS and UNCED. Over the past three
decades, the IMO has, in conformity with UNCLOS, enacted new treaties, rules
and procedures to protect the marine environment from ship-based pollution.
What is not generally known is that 80 percent of marine pollution is caused
by land-based pollution. It is much harder to stop land-based marine pollution
because states hide behind their sovereignty.
Fifth, FAO has repeatedly called the world’s attention to the crisis in fish-
eries. The crisis is being caused by over-fishing, by illegal, unreported and
unregulated fishing, by the ineffectiveness of the regional fishery management
organizations and by the use of destructive and unsustainable methods of fish-
ing, such as, bottom trawling and dredge fishing. Urgent action is needed to
tackle these problems. The world can learn from the successful experiences
of Iceland and New Zealand in the management of their fisheries. The IMO
should consider requiring all commercial fishing boats to be licensed and to
carry transponders. We should also consider eco-labelling for fish. Regional
fishery management organisations should be established in all regions, and
they should be allowed to make their decisions by majority votes rather than
by consensus. Certain destructive methods of fishing should be banned.
Sixth, the nexus between climate change and the oceans is insufficiently
understood. People generally do not know that the oceans serve as the blue
lungs of the planet, absorbing CO2 for the atmosphere and returning oxygen
to the atmosphere. The oceans also play a positive role in regulating the world’s
climate system. One impact of global warming on the oceans is that the oceans
are getting warmer and more acidic. This will have a deleterious effect on our
coral reefs. In view of the symbiotic relationship between land and sea, the
world should pay more attention to the health of our oceans.
Seventh, I wish to express a serious concern about the tendency by some
coastal states to expand their jurisdictions and their rights in violation of the
Convention. Some states have drawn straight baselines when they are not so
entitled. Other states have enacted laws and regulations governing activities in
the Exclusive Economic Zones even though they have no jurisdiction over such
activities under the Convention. Some states have acted in contravention of
the regime of transit passage. States have shown very little integrity and fidel-
ity to law when it comes to deciding whether a feature is a rock or an island.
I think states should be less reluctant to protest against such actions by other
states and be more willing to refer such disputes to dispute settlement.
My concluding thought is that UNCLOS III brought together an impressive
community of legal talent and skilful negotiators. Although they represented

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Unclos At 30: Some Reflections 109

their respective countries and pursued their national interests, they were
also inspired by the realization that they were pursuing a dream, the dream
of drafting a modern and comprehensive law to govern the world’s oceans.
I made many friends in the conference. One of the friends is the eminent jurist
and judge and gentleman from Argentina—Hugo Caminos.

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 Chapter 9

Is the Internal Waters Regime Excluded from the

United Nations Convention on the Law of the Sea?

Marcelo G. Kohen

Internal waters are one of the eight or nine different existing maritime areas.
They are part of the territory of the State and, as such, fall under its sovereignty.
In other words, States exercise the maximum of their competencies therein.
This is a feature internal waters share with the territorial sea and with archi-
pelagic waters. Indeed, before the first half of the 20th century there was no
distinction between internal waters and the territorial sea. The only two exist-
ing maritime areas were territorial waters and the high seas. This is an often-
neglected aspect of the question, which deserves attention. Unsurprisingly,
much of the argumentation used to exclude internal waters from the realm
of the international law of the sea, in order to consider that these waters as
simply governed by the domestic law of the coastal State, recalls the argu-
ments employed to deny any international regulation of territorial waters, at
the time when the distinction between territorial sea and internal waters did
not exist.
As will be explained below, it has then been contended, in recent litigation,
that the International Convention on the Law of the Sea (hereinafter, ‘UNCLOS’
or the ‘Convention’) does not govern internal waters. These waters would even
escape international concern, to be governed exclusively by domestic law and
subject to the same conditions as the rest of the territory under the sovereignty
of the State. This is a common belief in part of the doctrine.1 The purpose of
this contribution is to demonstrate precisely the opposite. This is not a purely
academic debate. It has practical importance, since the dispute settlement
mechanism set out in Part XV of the UNCLOS, and particularly the compul-
sory procedures entailing binding decisions, only relate to disputes as to the
interpretation or the application of this Convention.2 Indeed, the attempt to
exclude any question concerning internal waters from the UNCLOS essentially
aims at equally excluding it from the dispute settlement procedures.

1 See i.e. Kaare Bangert, “Internal Waters”, in The Max Planck Encyclopedia of Public
International Law, vol. V, ed. R. Wolfrum (Oxford: Oxford University Press, 2012), 310–316.
2 See Arts. 279 and 286 of the UNCLOS.

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Is the Internal Waters Regime Excluded from the UNCLOS ? 111

The present contribution, which pays homage to the leading Argentine spe-
cialist in the law of the sea, will be divided into three parts. First, it will exam-
ine the arguments developed to deny the application of the UNCLOS to internal
waters. Second, it will expose that it is the UNCLOS that determines the spa-
tial and legal scope of internal waters. Third, it will specifically describe the rights
and obligations of coastal and third States in internal waters as established or
recognised by the UNCLOS. As a result, the logical conclusion that will follow
is that the UNCLOS does contain regulations applicable to internal waters, and
taken together, establishes a legal regime for them.

Arguments Developed to Deny the Application of the UNCLOS to

Ιnternal Waters

It has been asserted that in all the codification efforts of the law of the sea, it
was decided to exclude internal waters. Counsel acting for Ghana in the ARA
Libertad case (Argentina v. Ghana), emphatically asserted before ITLOS that

[a]t each stage it was understood that the regime of ports and internal
waters was excluded from the relevant instrument and from the 1982
Convention, on the basis, as one member of the International Law
Commission put it in 1954, that it was ‘universally agreed’ that the regime
of ports and internal waters was ‘different from that of the territorial sea’.3

As is known, the ARA Libertad case related to the detention of an Argentine

warship,while in a Ghanaian port as a result of a State visit agreed upon by
both parties,throughan order of injunction delivered by a Ghanaian judge.
One of the main arguments of the defendant was that the Convention does not
regulate the immunity of warships in internal waters. In its written statement
before ITLOS, Ghana contended that

[i]nternal waters are an integral part of a coastal state and are therefore
not the subject of detailed regulation by the Convention. The coastal
state enjoys full territorial sovereignty over internal waters, and any for-
eign vessel that is located in internal waters is subject to the legislative,
administrative, judicial and jurisdictional powers of the coastal State.4

3 ITLOS, The Ara Libertad Case, 30 November 2012, ITLOS/PV.12/C20/4, p. 3, lines 39–43
(Sands).
4 ITLOS, The Ara Libertad Case (Argentina v. Ghana), Written Statement of the Republic of
Ghana, 28 November 2012, par. 13.

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112 KOHEN

And further, “[t]o the extent that such a rule might exist it could only be found
outside the Convention, whether under other rules of customary or conven-
tional international law.”5
Contrary to the position of Ghana, the order of the ITLOS of 15 December
2012 was unanimous in stating that “the Annex VII arbitral tribunal would
prima facie have jurisdiction over the dispute”.6 The reason for this finding was
that Article 32 of the Convention (“Immunities of warships and other govern-
ment ships operated for non-commercial purposes”)

states that ‘nothing in this Convention affects the immunities of war-

ships’ without specifying the geographical scope of its application [. . .]
[and] that, although article 32 is included in Part II of the Convention
entitled ‘Territorial Sea and Contiguous Zone’, and most of the provisions
in this Part relate to the territorial sea, some of the provisions in this Part
may be applicable to all maritime areas, as in the case of the definition of
warships provided for in article 29 of the Convention.7

Notwithstanding this unanimity, two members of the ITLOS agreed “in prin-
ciple” with the respondent in the idea that “none of the provisions of the
Convention provide for the immunity of warships in the internal waters of a
foreign State”.8 With regard to the general question discussed in this contribu-
tion, i.e. whether internal waters are governed by the UNCLOS, it is worth quot-
ing the joint separate opinion of Judges Cot and Wolfrum, since it explains this
position in a better way than was done by the Respondent during the proceed-
ings for the request for the prescription of provisional measures. According to
these judges:

there are certain provisions in the Convention having a bearing on the

legal regime governing internal waters; these are article 2, paragraph 1,
article 7, paragraph 3, article 8, article 10, paragraph 4, article 18, para-
graph 1, article 25, paragraph 2, article 27, paragraph 2, article 28,
paragraph 3, article 35 (a), article 50, article 211, paragraph 3, and article
218 of the Convention. But even a cursory assessment of these provisions
clearly indicates their limited scope. They only deal with the status of
internal waters, equating that area with the land territory, the access

5 Id., para. 12.

6 ITLOS, The Ara Libertad Case (Argentina v. Ghana), Case N° 20, Order of 15 December 2012,
para. 67.
7 Id., paras. 63–64.
8 Joint separate opinion of Judges Cot and Wolfrum, id., paras. 22–23 of this opinion.

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thereto, their delimitation vis-à-vis the territorial sea, the rights of coastal
States exercising their jurisdiction vis-à-vis vessels having left internal
waters and the rights of coastal States to prevent the entry of vessels into
their internal waters. However, all these provisions taken together do not
constitute a comprehensive legal regime comparable to the one on the
territorial sea (see the different approach taken in the Order).9

Interestingly enough, the joint separate opinion enumerates a rather consid-

erable number of provisions of the UNCLOS that deal with internal waters,
even though, as will be explained below, this list is not exhaustive, since other
important provisions also refer to the conduct of the coastal State in internal
waters and ports. It is not explained why these provisions taken together, plus
those of general character applicable to all maritime areas, would not consti-
tute a ‘comprehensive legal regime’. Instead, the joint separate opinion states
that in any event this legal regime would not be comparable to the ‘compre-
hensive legal regime’ of the territorial sea. However, the question here is not
whether the regime of the territorial sea is more elaborate or ‘comprehensive’
than that of internal waters. One could easily argue that the UNCLOS regime
of the Zone is more elaborate and therefore more ‘comprehensive’ than that of
the territorial sea. It may simply be the case that one maritime area may require
more rules than others, but this fact does not prevent those areas from being
regulated in the UNCLOS.
What is considered a decisive example in the joint separate opinion demon-
strating that internal waters would not be governed by the UNCLOS is that “an
equivalent to article 21 of the Convention describing the laws and regulations
of the coastal State relating to innocent passage in the territorial sea is missing.
The principle governing internal waters is the sovereignty of the coastal State
concerned.”10 This example does not demonstrate that internal waters are not
governed by the UNCLOS. It simply shows that, contrary to the territorial sea,
there is no right of passage in internal waters. This is simply the main differ-
ence between internal waters and the territorial sea, precisely that which justi-
fies the distinction between these two different regimes,11 while some time ago

9 Id., paras. 23–24 of the joint separate opinion.

10 Id., para. 24 of the joint separate opinion.
11 According to the report prepared by the UN Secretariat (Codification Division of the
Office of Legal Affairs) on the “Juridical Régime of Historic Waters, Including Historic
Bays” (Doc. A/CN.4/143), the importance of the distinction between internal waters and
the territorial sea “lies in the fact that (. . .) the coastal State must allow the innocent
passage of foreign ships through its territorial sea, but has no such obligation with respect

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there was one regime, covering both, unspecifically referred to as ‘territorial

waters’. As the Report on Historic Waters prepared in the framework of the work
of the International Law Commission explained: “ ‘Territorial waters’ could be
used as a term comprehending both the ‘territorial sea’ and ‘internal waters’;
what is now known as ‘internal waters’ was therefore often referred to as ‘ter-
ritorial waters’.”12
Furthermore, the distinction between internal waters and the territorial sea
through the existence of the right of innocent passage is not an absolute one.
There are internal waters in which the right of innocent passage does exist.
According to Article 8, paragraph 2 of the UNCLOS, where the establishment
of a straight baseline “has the effect of enclosing as internal waters areas which
had not previously been considered as such, a right of innocent passage as
provided in this Convention shall exist in those waters.” Furthermore, there are
other internal waters whose regime includes UNCLOS provisions granting a
right of transit passage, such as those constituting straits used for international
navigation.13
A further argument developed by both the Respondent and the joint sepa-
rate opinion was that the internal waters regime is that of the territorial sov-
ereignty of the coastal State. Judges Cot and Wolfrum based their analysis of
this question in the way Article 2, paragraph 1, of the UNCLOS explains the
sovereignty of the coastal State over its territorial sea. According to their joint
separate opinion, this provision

equates internal waters and archipelagic waters with the land territory
whereas it ‘extends the sovereignty to an adjacent belt of sea called the
territorial sea’. This clearly establishes that internal waters originally
belong to the land whereas the territorial sea so belongs but only on the
basis of international treaty and customary international law. As a conse-
quence thereof limitations of the coastal States’ sovereignty over internal
waters cannot be assumed.14

This alleged distinction, putting internal and archipelagic waters on the one
side, and the territorial sea on the other, is not justified for a number of rea-
sons. Article 2, paragraph 1, reads as follows:

to its internal waters”, Yearbook of the International Law Commission, vol. II (1962): 23,
para. 160.
12 Id., p. 23, para. 162.
13 See Art. 34 and ff. of the UNCLOS.
14 Joint separate opinion of Judges Cot and Wolfrum, id., paras. 25 of this opinion.

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Is the Internal Waters Regime Excluded from the UNCLOS ? 115

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.

First, this text in no way ‘equates’ the internal and archipelagic waters with
land territory and distinguishes this ensemble from the territorial sea. The text
is absolutely clear. Not only is there no distinction between the given regimes
of each area, but rather the contrary: the same attribute of the State applies,
i.e. the sovereignty of a coastal State extends to all the relevant areas this article
mentions: land territory, internal waters, archipelagic waters and territorial
sea. The first paragraph of Article 2 simply geographically describes where the
territorial sea is located.
Second, nothing in the text, or even outside this article, allows the conclu-
sion according to which internal waters “originally belong to the land” whereas
the territorial sea only ‘belongs’ to that land “on the basis of treaty and custom-
ary law”. Indeed, the three maritime areas are the result of the recognition of
their existence by customary and conventional law. As indicated earlier, the dis-
tinction between internal waters and territorial sea is not an old one. It started
during the first half of the 20th century and has its background in the discus-
sion about the existence or not of a right of innocent passage in the territorial
waters of the coastal State.15 It is telling that the Central American Court of
Justice, while considering in a 1917 judgment that the Gulf of Fonseca is a his-
toric bay, called its waters ‘territorial’ and not ‘internal’.16 And it is all the more
significant that the Chamber of the ICJ dealing with the El Salvador/Honduras:
Nicaragua intervening case, while agreeing with the Central American Court of
Justice on the legal qualification of the Gulf of Fonseca, considered its waters
“internal”, following the terminology contemporary to its judgment in 1992.17 It
is not by chance that the Institut de Droit international, only in 1957, adopted

15 For an account and discussion of the existence of the right of innocent passage in territorial
waters see Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (New
York: Jennings, 1927).
16 Central American Court of Justice, El Salvador v. Nicaragua, Opinion and Decision of
9 March 1917, AJIL, vol. 11 (1917): 705. For the original text in Spanish of the judgment, see:
Sentenciapronunciada en el juiciopromovidopor el Gobierno de la República de El Salvador
contra el Gobierno de la República de Nicaragua por la celebración del Tratado Bryan-
Chamorro. Corte de Justicia Centroamericana. San José, Costa Rica, 9 (mars 1917).
17 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
intervening), judgment of 11 September, ICJ Reports (1992): 593, para. 393, p. 605, para. 412
(for the qualification of the waters as “internal”), p. 616, para. 432, (1) (for the operative
part deciding that the Gulf of Fonseca is a historic bay).

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a resolution on “The distinction between the régime of the territorial sea and
the régime of internal waters”.18 Furthermore, ‘archipelagic waters’ were a cre-
ation of the UNCLOS as a way to also settle a difference existing between those
archipelagic States, particularly Indonesia and the Philippines, that claimed
these waters as internal, and others who denied them that character. The com-
promise was precisely the creation of a new third category between internal
waters and the territorial sea.19
Third, the fact that “limitations of the coastal States’ sovereignty over inter-
nal waters cannot be assumed” is not relevant for the matter under discussion.
Those limitations cannot be assumed over the territorial sea either. In all cases,
these limitations to sovereignty must be established by international law. As
will be demonstrated below, these limitations exist with regard to internal
waters and find their basis within the UNCLOS. As a matter of course, they can
also be the result of other agreements, i.e. bilateral and multilateral treaties.20
Finally, the joint separate opinion relied upon a quick examination of the
travaux préparatoires in order to consider that there is no regime of internal
waters in the UNCLOS. In particular, it is mentioned that no State suggested
including rules about that regime or about ports.21 As will be seen below, the
fact is that the Convention does contain rules relating to the rights and obliga-
tions of coastal and third States in internal waters and ports, even though they
are not put together in a single section. Furthermore, no State objected to this
on the ground that regulations relating to internal waters should be excluded
from the scope of the Convention. The rest of the references mentioned in
the joint separate opinion are exclusively concerned with the regime of ports
and not with internal waters in general. Tellingly, the references to the Second
Commission of the Hague Conference for the Codification of International
Law in 1930, the work of the International Law Commission, or that of the
Conference adopting the 1958 Geneva Convention on the Territorial Sea and

18 Resolution adopted at the Session of Amsterdam on 24 September 1957. Available at:

www.idi-iil.org/idiE/resolutionsE/1957_amst_01_en.pdf.
19 See, i.e. Donald R. Rothwell & Tim Stephens, The International Law of the Sea (Oxford/
Portland Hart, Oregon, 2010), 53.
20 Example of a bilateral agreement is the 1984 Treaty of Peace and Friendship between
Argentina and Chile, Annex 2, Article 1, recognising a right of passage for Argentine vessels
through Chilean internal waters between the Strait of Magellan and Argentine ports in
the Beagle Channel (available at: http://www.un.org/depts/los/legislationandtreaties/
pdffiles/treaties/chl-arg1984pf.pdf). Example of multilateral conventional law is the
International Convention for the Safety of Life at Sea (SOLAS) and the International
Maritime Organisation regulations on access to ports.
21 Joint separate opinion of Judges Cot and Wolfrum, id., para. 26 of this opinion.

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Is the Internal Waters Regime Excluded from the UNCLOS ? 117

the Contiguous Zone, all mention the fact that the regime of ports fell outside
what the respective works were about, i.e. the territorial sea.22 All this reason-
ing led Judges Cot and Wolfrum to conclude that they “cannot assume that all
activities of the coastal State in its internal waters and its ports are governed by
the Convention and accordingly come under the jurisdiction of the Tribunal”.23
However, nobody contended—nor was this the question at issue in the rel-
evant case—that all activities of the coastal State in internal waters are gov-
erned by the UNCLOS. One could also claim that not all activities of the coastal
State in its territorial sea are governed by the UNCLOS. The key issue is in fact
whether the relevant aspects of the problem or the activities concerned are
governed by the Convention or not. A perusal of the UNCLOS easily demon-
strates that this instrument is crucial for the determination of the legal scope
of internal waters, and establishes some important rights and obligations for
coastal and other States in this maritime area that otherwise would not exist.

It is the UNCLOS that Determines the Spatial and Legal Scope of

Internal Waters

The decision about what constitutes the internal waters of a State is not a mat-
ter for it to exclusively decide. It has always been a matter for determination by
international law. Customary international law progressively developed from
the notion of historic bays and waters to accepting the drawing of straight
base lines for the measurement of the breadth of the territorial sea, attribut-
ing to the waters lying inside these lines the character of internal waters. The
UNCLOS consecrates this development by explicitly determining which are
the internal waters of the coastal State.
Article 8 denounces that “waters on the landward side of the baseline of the
territorial sea form part of the internal waters of the State”. Article 7 describes
the conditions that straight base lines must follow in order to be in accordance
with international law. Its paragraph 3 specifically describes the rationale: “The
drawing of straight baselines must not depart to any appreciable extent from
the general direction of the coast, and the sea areas lying within the lines must
be sufficiently closely linked to the land domain to be subject to the regime of
internal waters”. In this regard, the Convention allows the coastal State to use

22 Id., paras. 29–33.

23 Id., para. 34.

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fringing islands and low tide elevations for the drawing of straight base lines,
and consider the waters within these base lines as internal.24
Article 10 also allows coastal States to consider as internal waters those
enclosed within a closing line of bays that do not exceed 24 miles. The same
article recognises the existence of ‘historic’ bays, whose waters are internal
irrespective of the width of their mouths. This is so even if the Convention
does not include any definition of historic bays or waters. According to the
uncontroversial definition given by the ICJ, “[b]y ‘historic waters’ are usually
meant waters which are treated as internal waters but which would not have
that character were it not for the existence of an historic title’.”25As a matter of
course, the fact that the UNCLOS does not define ‘historic bays’, let alone refer
to ‘historic waters’, does not mean that, if a question relating to the nature of a
bay, or of waters that are claimed as historic, arises in a maritime delimitation
dispute between parties to the Convention, the matter is not covered by it and
therefore falls outside the scope of the compulsory means of dispute settle-
ment established by Part XV.
It is generally assumed that the waters of any port are to be considered as
internal. However, Article 11 of the UNCLOS only establishes that “[f]or the
purpose of delimiting the territorial sea, the outermost permanent harbour
works which form an integral part of the harbour system are regarded as form-
ing part of the coast.” Although it is true that in most cases these outermost
permanent harbour works must be linked through straight lines, rendering the
waters inside these internal, this must be not the case in all circumstances.
Consequently, it may be that port facilities belong to the territorial sea. This is
confirmed by the fact that, i.e. Art. 18, while referring to the right of innocent
passage, mentions internal waters or ‘a roadstead or port facility outside inter-
nal waters’.26
To sum up, internal waters, according to the UNCLOS, are those situated
within straight base lines drawn in accordance with the Convention, closing
lines of bays also as established by the Convention, historic bays and, in most
cases, port waters.
It is true that the UNCLOS does not contain a provision for the delimitation
of internal waters, as is the case for the territorial sea, the continental shelf
and the exclusive economic zone. It must be pointed out that the Convention
does not provide for a delimitation rule with regard to the contiguous zone
either, as is the case in the 1958 Geneva Convention on the Territorial Sea and

24 See Art. 7 para. 1 and Art. 13.

25 Fisheries case, Judgment of December 18th, 1951, ICJ Reports (1951): 130.
26 Emphasis added.

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Is the Internal Waters Regime Excluded from the UNCLOS ? 119

the Contiguous Zone.27 Article 15 of the UNCLOS, however, affirms that the
provision establishing equidistance as the delimitation method for the territo-
rial sea does not apply “where it is necessary by reason of historic title or other
special circumstances”. The reference to historic titles may imply either the
existence of internal waters or territorial sea, “according to whether the sov-
ereignty exercised over them in the course of the development of the historic
title was sovereignty as over internal waters or sovereignty as over the territo-
rial sea”.28 Consequently, a delimitation of the territorial sea between States
parties to the UNCLOS may in some cases require the determination of the
existence of internal waters and a departure from the equidistance line. Yet in
other cases, the Court or Tribunal dealing with a maritime delimitation may
decide whether a given maritime zone constitutes internal waters or the ter-
ritorial sea, as it was the case of the I.C.J. in the Qatar v. Bahrain case.29
Given the nature of internal waters as essentially closed within straight
lines, the factual possibility of the need to delimit the internal waters of
two or more coastal States is really very exceptional. The most suitable case
for delimitation would be a historic bay surrounded by two or more States. For
example, the maritime delimitation concluded by Honduras and Nicaragua on
12 June 1900 in the Gulf of Fonseca, a historic bay, delimited internal waters,
as the Chamber of the ICJ examined in El Salvador/Honduras (Nicaragua inter-
vening) case.30
The question may arise whether a maritime delimitation dispute which
includes the delimitation of internal waters would be suitable for the compul-
sory procedures of Part XV of the UNCLOS. If the position is followed accord-
ing to which internal waters are excluded from the regime of the UNCLOS,
then the natural consequence would be that such a delimitation would not be
subject to those procedures. In the author’s view, this would be an erroneous
analysis. As seen throughout this contribution, the UNCLOS does include rules

27 See Arts. 15, 74 and 83 of the UNCLOS and Art. 24 para. 3 of the Convention on the
Territorial Sea and the Contiguous Zone.
28 “Juridical Régime of Historic Waters, Including Historic Bays”, Report prepared by the
Secretariat, (Doc. A/CN.4/143), Yearbook of the International Law Commission, 1962,
vol. II, p. 23, para. 167.
29 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain), Merits, Judgment, ICJ Reports (2001): 110, para. 223.
30 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
intervening), Judgment of 11 September 1992, I.C.J. Reports 1992, pp. 601–602, para. 404,
and p. 605, para. 413.

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for the regime of internal waters. Moreover, Article 15, through its reference to
historic title, would allow a delimitation of internal waters.31

Rights and Duties of the Coastal State in Internal Waters as

Recognised by the UNCLOS

What is decisive in order to demonstrate that the UNCLOS has regulated and,
indeed, established a regime for internal waters, is its ascertainment of rights
and duties for coastal and third States in these waters. This can be done by
way of establishment by the UNCLOS of new and not previously existing rights
and obligations, or by the recognition of rights and obligations already existing
at the customary law level or in other treaties. A perusal of the relevant rules of
the Convention indicates that both of these propositions are present here. The
following is a list of these rights and obligations:

1) Right of innocent passage for foreign vessels in areas of internal waters that
were not considered such before the drawing of straight base lines (Article 8,
paragraph 2).
2) Right of transit passage for foreign vessels in straits used for interna-
tional navigation whose waters are internal (Arts. 34 and 35 a]).
3) Right of transit of land-locked States for their exercise of the right
of access to and from the sea and all rights provided for in the Convention
(Art. 125).
4) Obligation to grant ships flying the flag of land-locked States equal treat-
ment to that accorded to other foreign ships in maritime ports (Art. 131). This
is a conventional obligation establishing a clear limitation to port State deci-
sions. Here there is a clear difference with regard to the 1923 Convention on
the international regime of maritime ports, based on reciprocity of the con-
tracting parties. While reciprocity could be a reason for granting some advan-
tages to other states regarding maritime ports, land-locked States cannot be
disadvantaged by the impossibility of reciprocity in this regard.
5) Obligation for coastal states to communicate and to give due publicity to
particular requirements for the prevention, reduction and control of pollution

31 In his dissenting opinion appended to the judgement in El Salvador/Honduras (Nicaragua

intervening) case, Judge Oda was of the view that the expression “historic waters” has
become a redundancy, because it “was used to justify the status of internal waters”, ICJ
Reports (1992): 757, para. 44.

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Is the Internal Waters Regime Excluded from the UNCLOS ? 121

of the marine environment as a condition for the entry of foreign vessels into
their ports or internal waters (Art. 211, para. 3).
6) Right of enforcement of measures for the prevention, reduction or con-
trol of pollution by coastal States with regard to foreign vessels voluntarily
within their ports in relation to discharge from those vessels occurring outside
the areas under their sovereignty or jurisdiction (Art. 218). This conventional
right established by the UNCLOS is a derogation from the normal jurisdiction
of flag States for acts accomplished by vessels in areas outside national jurisdic-
tion. Equally, this right to exercise jurisdiction by the port State for acts accom-
plished within areas under the sovereignty or jurisdiction of other States, with
their consent (Art. 218, para. 2), is also a conventional right.
7) Obligation for coastal States, subject to the domestic regulations, to facil-
itate access to their harbours to marine scientific research vessels (Art. 255).
8) Obligation for coastal States of prompt release of detained foreign ves-
sels and their crews after the posting of a reasonable bond or other financial
security (Art. 292). This is also a conventional obligation and a limitation
to municipal regulations, regardless of whether domestic law provides this
possibility.
9) Obligation to respect the sovereign immunity of warships or other
governmental vessels used for non-commercial activities, even in cases of
breach of their obligations relating to the protection of the marine environ-
ment (Arts. 32 and 236). As Judge Paik stated in his declaration appended to
the Order of 15 December 2012, immunity of a warship in the port of a foreign
State “constitutes one of the most important pillars of the ordre public of the
oceans”.32
10) Obligation of the coastal State not to impede the freedom of navigation
of foreign vessels by arbitrarily preventing them from leaving their internal
waters. An arbitrary detention of a foreign vessel by the coastal State, after hav-
ing allowed it to enter its internal waters and/or call at port, cannot but be a
blatant breach of the freedom of navigation in other maritime areas and the
right of innocent passage in the territorial sea, as established in Articles 18,
58 and 87 of the Convention.33 ITLOS, in its order of 15 December 2012 in

32 Declaration of Judge Paik in The Ara Libertad Case (Argentina v. Ghana), ITLOS Case
N° 20, para. 29.
33 See the Separate Opinion of Judge Lucky in The Ara Libertad Case (Argentina v. Ghana),
ITLOS Case N° 20, para. 29. In their joint separate opinion, judges Cot and Wolfrum find
it “hard to imagine how the detention of a vessel in port in the course of national civil
proceedings can be construed as violating the freedom of navigation on the high seas.
To take this argument to the extreme, it would, in fact, mean that the principle of the

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the “ARA Libertad” case, simply established that Article 18, paragraph 1 b)
and Articles 87 and 90 “do not relate to the immunity of warships in inter-
nal waters”.34 Indeed, respect for the immunity of warships and the arbitrary
detention of any foreign vessel in port are two different questions. They need
not be put together. As the ICJ stated in the Nicaragua v. USA case, “it follows
that any State which enjoys a right of access to ports for its ships also enjoys all
the freedom necessary for maritime navigation.”35 This includes the right for
ships to leave if there is no reason to detain them.36

Conclusion

The previous concise analysis reveals that there emerges from the UNCLOS
a clear regime for internal waters. While sovereignty is the status that coastal
States enjoy over these, the Convention establishes a number of rights and
obligations completing that status. There is nothing surprising about this,
since the same can be said about the territorial sea. Whether States were
unwilling to have a separate part of the Convention specifically dealing with
internal waters is completely immaterial. It is also immaterial whether this

freedom of navigation would render all vessels immune from civil proceedings and in
consequence from the implementation of the national law of the port State in question”.
(Id., para. 37 of their opinion). This statement is highly misleading. As a matter of course,
not any vessel is immune from civil proceedings. One thing is to initiate proceedings
relating to foreign vessels in port and yet another is to arbitrarily prevent them from
leaving the port after having allowed them to enter the internal waters and to call at port.
It is only the latter that would constitute a breach to the freedom of navigation.
34 ITLOS, The Ara Libertad Case (Argentina v. Ghana), Case N° 20, Order of 15 December
2012, para. 61.
35 Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, ICJ Reports (1986): 14, para. 214.
36 In the M/V “Louisa” case, ITLOS considered that the freedom of navigation in the high seas
consecrated in Article 87 “cannot be interpreted in such a way as to grant the M/V ‘Louisa’
a right to leave the port and gain access to the high seas notwithstanding its detention in
the context of legal proceedings against it”. This generalisation could have been avoided
if it is taken into consideration that the “Louisa”, which were performing activities in
the territorial sea and internal waters of Spain, was detained in the port of Santa María
(Spain) in the context of criminal proceedings initiated after a search of the vessel, in
which undersea archaeological pieces and weapons of war were found (see ITLOS, The
M/V “Louisa” Case (Saint Vincent and the Grenadines v. Kingdom of Spain), Case N° 18,
Judgment, 28 May 2013, in particular paras. 48, 104 and 109, and the Declaration of Judge
Paik, paras. 20–29).

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choice obeyed to the idea of recognising the sovereignty of the coastal State
over internal waters to be as extensive as possible. The contention according to
which internal waters fall outside the scope of the Convention is clearly con-
tradicted by the important number of provisions establishing—in some cases
for the first time—or recognising rights and obligations for the sovereign State.
What has not been regulated or acknowledged by the UNCLOS residually falls
within the realm of the sovereign decision of the coastal State. This is the case
of the admission of foreign vessels to internal waters and ports, and the exer-
cise of jurisdiction therein, subject to the limitations described above. Clearly,
the UNCLOS does not contain a rule granting freedom of entry into maritime
ports. It cannot be claimed that such a right exists at the customary level either,
as it was claimed by the arbitral award rendered in the “Aramco” case between
Saudi Arabia and the Arabian American Oil Company.37
Considering that everything what coastal States do in their internal waters
falls outside the regime of the UNCLOS also flies in the face the essential object
and purposes of the Convention, as expressly affirmed in its Preamble: 1) “the
desire to settle, in a spirit of mutual understanding and cooperation, all issues
relating to the law of the sea”, 2) the consciousness that “problems of ocean
space are closely interrelated and need to be considered as a whole” and 3) “the
desirability of establishing through this Convention, with due regard for
the sovereignty of all States, a legal order of the seas and oceans which will facil-
itate international communication”.
Internal waters are maritime waters. They should not be confused with
inland fresh waters, which are subject to a completely different regime.38
Internal waters constitute a specific maritime area, one in which the coastal
State enjoys the maximum of competencies. This specificity does not mean
that their situation is exactly the same as that of land territory or waterways.
As part of the seas,they are governed by the law of the sea and the Convention
that comprehensively deals with it. The determination of what constitutes
internal waters is not a matter of domestic law but is governed by the UNCLOS.
It is also this Convention that has for the first time established rights and obli-
gations for coastal and third States with regard to those waters, as seen in this
contribution. It would be seriously damaging, for the understanding of the

37 ILR, vol. 27, 117. See A. V. Lowe, “The Right of Entry into Maritime Ports in International
Law”, San Diego Law Review, vol. 14 (1976–1977): 597.
38 “Les eaux qualifiées d’eaux intérieures au sens juridique et dont s’occupe le droit public
maritime international sont les eaux maritimes qui se trouvent en deçà de la ligne de
départ des eaux dites territoriales”, Gilbert Gidel, Le droit international public de la mer,
Tome II : Les eaux intérieures (Paris: Sirey, 1932), 10.

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law of the sea as a whole and for the effort of establishing compulsory mecha-
nisms of dispute settlement, to start differentiating law of the sea issues that
are included in the UNCLOS and others that would be “taken for granted” and,
as a result, would not be included in the Convention.
The freedom of navigation is certainly one of the major freedoms long rec-
ognised by the law of the sea. To attribute to the coastal State in its internal
waters the absolute right to proceed as it may find fit, and to consider that noth-
ing in the UNCLOS prevents it from acting in that manner, constitutes a double
mistake. First, because it would go against the rationale of the Convention.
Second, because the UNCLOS itself recognised, by including the institution of
prompt release, that freedom of navigation is paramount in its overall regime,
and consequently created the way to allow vessels to perform what constitutes
their raison d’être: to navigate.
The simple ascertainment that the farther the maritime area from the
coastal State, the lesser its sovereignty or jurisdiction, does not constitute a
ground for excluding internal waters from the law of the sea. They are not
on an equal footing to land territory, even though the coastal State possesses
sovereignty over both. In territorial waters, there are some limitations to sov-
ereignty derived from the law of the sea that do not exist on land. The same—
and this is absolutely uncontroversial—applies to the territorial sea. The fact
that at one time two different regimes came into existence for internal waters
and the territorial sea does not, as demonstrated here, exclude the former from
being regulated by the UNCLOS.

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 Chapter 10

Le rôle du Secretariat des Nations Unies dans

l’application de la Convention des Nations Unies
sur le droit de la mer
Annick de Marffy-Mantuano

Le secrétariat des Nations Unies chargé des affaires maritimes et du droit de

la mer, dont l’une des tâches consiste à veiller à l’application de la Convention
des Nations Unies sur le droit de la mer adoptée le 10 décembre 1982 (ci-après
dénommée la Convention), trouve son origine dans la Troisième Conférence
des Nations Unies sur le droit de la mer (ci-après dénommée la Conférence)1.
Un bureau spécial directement rattaché au Secrétaire général fut établi pour
la servir. En règle générale, le rôle du secrétariat des Nations Unies dans le
cadre d’une conférence internationale est d’assurer un support logistique et
administratif.
La Conférence qui dura de 1973 à 1982 développa des méthodes de travail
peu orthodoxes. Le secrétariat dut lui aussi s’adapter et élaborer des méthodes
de travail qui dérogèrent à ses responsabilités habituelles. Elle ne peut être com-
parée aux grandes conférences de codification préparées par la Commission
de droit international. Un énorme travail de préparation et de réflexion avaient
cependant été entrepris tout d’abord au sein de conférences régionales et pen-
dant six ans au sein du Comité des fonds marins, organe politique dépendant
de la première Commission des Nations Unies2. Ce dernier qui n’offrit que des
textes sous forme de variantes, n’en servit pas moins de véritable atelier de
discussions et de développement des concepts qui allaient trouver leur traduc-
tion dans les normes qui virent le jour au sein de la Conférence.
L’absence de texte de base imposa au secrétariat de sortir de son rôle
d’exécutant pour devenir un acteur participant à la formulation des normes
comme à la recherche des compromis. Il eut aussi pendant toutes ces années la
tâche primordiale de rassembler une multitude de propositions ainsi que des

1 Voir J.P. Levy, La Conférence des Nations Unies sur le droit de la mer, histoire d’une négociation
singulière (Paris: Pedone, 1983).
2 Voir Annick de Marffy, La genèse du nouveau droit de la mer: le Comité des fonds marins (Paris:
Pedone 1980).

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_011

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documents épars portant sur tous les sujets traités par la Conférence pour en
préparer des synthèses constructives.
Cette responsabilité accrue confiée aux membres du secrétariat de la
Conférence fut possible en raison de la qualité des personnes, toutes spéciale-
ment recrutées pour servir la Conférence nouvellement convoquée. La direc-
tion du secrétariat fut confiée à Constantin Stravopoulos, conseiller juridique
et chef du bureau juridique de l’Organisation des Nations Unies. Il fut nommé
Représentant spécial du Secrétaire général pour la Conférence. Le choix de
cette personnalité, hautement reconnue et appréciée de même que le titre
qui lui fut donné, conférait à ce secrétariat une dimension spéciale, d’autant
plus que le personnel recruté sous son contrôle le fut sur la base de critères
de hautes compétences au vu souvent, pour les plus séniors, de responsabi-
lités qu’ils avaient antérieurement exercées au sein de leur gouvernement ou
d’universités3.
L’immensité du travail qui attendait la Conférence, dont le mandat était
de refaçonner le régime juridique applicable aux mers et aux océans sous la
forme d’une seule convention traitant de tous les aspects, demandait une par-
ticipation étroite entre les délégués et le secrétariat dont les membres avaient
fait l’objet d’un savant dosage de répartition géographique équitable dans
un contexte géopolitique difficile. Il convient de citer ici à titre d’exemple, la
préparation du texte unique de négociation dont la nécessité s’imposa face à
une pléthore de propositions divergentes et de textes assortis de variantes4.
L’élaboration de ce texte qui devait servir de base aux travaux et aux négocia-
tions fut l’œuvre des présidents respectifs des trois grandes commissions. Nul
ne pouvait accomplir une telle tâche sans une implication forte de la part du
secrétariat.
Après l’ouverture à la signature de la Convention le 10 décembre 1982, le
secrétariat fut non seulement maintenu mais ses attributions ne cessèrent de
croître. A la 37ème session, l’Assemblée générale des Nations Unies demanda
au secrétariat par la Résolution A/RES/37/66 du 3 décembre 1982, paragraphe 7
du dispositif que le Secrétaire général prenne en charge les responsabilités
qui lui incombaient en vertu de la Convention et des résolutions pertinentes
« pour agir en tant qu’agent de la communauté internationale . . . à l’égard de
laquelle il est responsable pour assurer une bonne administration. » Depuis
cette résolution, l’Assemblée générale indique chaque année au secrétariat le
contenu de son mandat.

3 Le juge Caminos ici honoré est un témoignage de la qualité du personnel recruté.

4 Voir J.P. Levy, op. cit., 58-62.

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Le rôle du secretariat des Nations Unies 127

Trois périodes ont jalonné les 30 ans d’existence du secrétariat qui au

plan structurel a connu en 1992 des changements importants passant d’une
unité indépendante, le Bureau du représentant spécial du Secrétaire général,
à une unité rattachée au Bureau juridique de l’Organisation qui prit le nom
de Division des affaires maritimes et du droit de la mer, connue sous le nom de
DOALOS.
La période de 1982 à 1994, avant l’entrée en vigueur du traité: Le secrétariat
s’est attelé à assister les Etats, à mieux comprendre les règles contenues dans
la Convention. Il contribua également à la préparation de la mise en place des
institutions créées par elle.
La période de 1994 à 2002, après l’entrée en vigueur du traité: Son travail fut
axé sur la surveillance et la mise en place de moyens pour assurer une interpré-
tation et une application uniformes des normes contenues dans la Convention.
Il contribua également à la recherche de solutions pour biffer les entraves à son
acceptation.
La période de 2002 à nos jours est marquée par ‘l’environnementalisation’
de l’approche des problèmes relatifs aux mers et aux océans rendant plus dif-
ficile sa tâche de gardien de la Convention. Par ailleurs, le secrétariat s’est vu
submergé par un accroissement exponentiel du nombre des demandes pré-
sentées à la Commission des limites du plateau continental.

Période après la conclusion de la Convention : Le Secrétariat

diffuse les normes et contribue à la préparation de la mise en place
des institutions créées par elle

La joie d’avoir accompli une œuvre colossale avec l’ouverture à la signature

de la Convention fut ternie par le refus des grands Etats industrialisés, parmi
eux les Etats-Unis, de s’y associer. Le recours au vote lors de l’adoption du texte
de la Convention, imposé par ces Etats en raison des insuffisances et des imper-
fections de la Partie XI et des Annexes III et IV portant sur le régime des fonds
marins, marqua d’une empreinte négative la Convention et contribua à mini-
miser l’importance de la Commission préparatoire de l’Autorité internationale
des fonds marins et du Tribunal international du droit de la mer5 (ci-après

5 Sur le travail de la Commission préparatoire, voir J.P. Levy, in Espaces et Ressources Maritimes
(Paris: PUF, vol. 2 (1987), vol. 3 (1988), vol. 4 (1990), vol. 5 (1991) et vol. 6 (1992). Voir aussi
P. Kirsh & D. Fraser « The law of the sea Preparatory Commission after six years, Review and
prospects », 26 Canadian YB of INTL Law (1988).

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dénommée la Commission préparatoire), chargée de préparer le fonctionne-

ment de deux des trois organes établis par la Convention, la Commission des
limites du plateau continental étant le troisième.
Parallèlement au service et à l’assistance qu’il apporta aux travaux de la
Commission préparatoire, le secrétariat prit l’initiative de porter à la connais-
sance des Etats la pratique qui se développait pour leur permettre d’harmo-
niser leur législation interne avec les règles contenues dans la Convention.
Le nouveau droit de la mer, malgré ses imperfections, avait établi un code de
conduite applicable aux activités s’exerçant sur les mers et les océans comme
la navigation, la pêche, l’exploitation des ressources non vivantes, y compris
des règles pour la protection et la préservation du milieu marin.
Le nombre des ratifications augmentant et face à l’absence de celles des
Etats industrialisés, un groupe d’Etats s’attela à la tâche délicate d’amender le
texte avant son entrée en vigueur pour assurer l’universalité de la participa-
tion à la Convention. Durant ces discussions, le rôle du Secrétariat se trouva
amoindri.

Un secrétariat acteur dans la formulation des règles durant

les travaux de la Commission préparatoire

Après cette longue période de négociations intenses qui animèrent la

Conférence, une lassitude s’était emparée des délégations. L’effort financier
élevé demandé aux Etats était devenu trop lourd, en particulier pour les Etats
en développement. Le niveau de participation tomba de 165 lors de la 11ème et
dernière session de la Conférence au printemps de 1982 à 70 lors de la première
réunion de la Commission préparatoire. La qualité de la représentation ne put
jamais se hisser au niveau intellectuel et humain atteint par la Conférence
considérée comme la plus importante négociation dans l’histoire des Nations
Unies. Le secrétariat, mandaté par la résolution 37 / 66 du 3 décembre 1982,
fut requis de servir « avec efficacité et diligence la tâche de préparer les textes
sur lesquels chacune des Commissions spéciales établies par la Commission
préparatoire devait travailler ». Aucune proposition ni aucun texte ne furent
présentés à la Commission entre sessions. Le Secrétariat combla ce vide.
Les sujets traités par la Commission préparatoire étaient définis dans les
résolutions I et II adoptées en même temps que le texte de la Convention. Ils
portaient sur l’établissement des règles, règlements et procédures de la future
Autorité internationale des fonds marins (ci-après dénommée l’Autorité) de
même que sur les règles de fonctionnement du futur Tribunal international du

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Le rôle du secretariat des Nations Unies 129

droit de la mer (ci-après dénommé le Tribunal) ainsi que sur la mise en place
du régime des investissements préliminaires.
La résolution II de la Conférence confiait à la Commission une fonction
exécutive consistant à gérer le régime des investissements préliminaires. Dès
1983, la Commission chargea le Secrétaire général de recevoir les demandes
d’enregistrement en qualité d’investisseurs pionniers, présentées par les Etats
certificateurs. L’enregistrement en tant qu’investisseurs pionniers de la France,
l’Inde, le Japon et l’URSS, sur la base des « Procédures et Directives concernant
l’enregistrement des investisseurs pionniers en application de la Résolution
II »6 qui eut lieu à Genève le 31 août 1984 fut confié au secrétariat. Il eut à
faire face à des responsabilités inhabituelles pour lesquelles il dut innover, par
exemple assurer la sécurité des documents confidentiels remis sous scellés au
représentant spécial du Secrétaire général. Ils furent ouverts en présence de
tous les intéressés y compris le représentant spécial qui dressa procès-verbal
de l’échange. Ainsi débuta la période d’élaboration des règles pour la mise en
place du régime des investisseurs pionniers pour laquelle le secrétariat joua un
rôle innovateur et essentiel.
Tout était nouveau pour le secrétariat dans la mise en œuvre du régime
des investisseurs pionniers qui, dans bien des cas, contourna les règles conte-
nues dans la Résolution II7. Il fallait inventer les procédures nécessaires pour
enregistrer les demandes comme l’octroi des certificats une fois les demandes
approuvées par la Commission. Le représentant spécial du Secrétaire géné-
ral, Bernardo Zuleta, joua lui-même un rôle important de médiateur dans
la recherche d’une solution au chevauchement des sites, nécessaire pour la
présentation d’une demande d’enregistrement comme investisseur pionnier
(Résolution II, para 5).
Cet aspect des négociations portant sur un domaine au contenu essentiel-
lement économique faisait appel à des compétences nouvelles qui jusque-là
ne dominaient pas les négociations au sein des Nations Unies. L’importance
des questions économiques est apparue avec la Conférence, particulièrement
dans la rédaction des règles s’appliquant au régime de la Zone.
Ce rôle d’inventeur et de contributeur à la formulation de solutions face à
des situations nouvelles s’est atténué dans cette période importante lancée en
1990, à l’initiative du Secrétaire général Perez de Cuellar, pour parvenir à élimi-
ner les éléments de dissension empêchant les Etats industrialisés de se joindre
à la Convention et permettre l’universalisme de son acceptation.

6 Document LOS/PCN/27, 8 septembre 1983, Annexe II.

7 Voir J.P. Levy, op. cit., vol. 3, 131-134 et 147-152.

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130 Marffy-Mantuano

Rôle en demi-teinte du secrétariat dans la phase des consultations

du Secrétaire général

Les Etats Unis qui avaient signé l’Acte final de la Conférence, ce qui leur don-
nait le droit de participer en tant qu’observateur aux travaux de la Commission,
avaient cependant pratiqué la politique de la chaise vide. Tous les efforts enga-
gés depuis les années 1970 pour réformer le droit international de la mer afin
de l’adapter aux profonds changements technologiques, économiques mais
surtout géopolitiques d’une communauté internationale qui avait changé de
visage ne pouvaient être ignorés. La Convention, fruit d’un énorme effort intel-
lectuel, contenant des règles dont la majeure partie était le fruit d’un consen-
sus, méritait de servir l’objectif qui lui avait été assigné, à savoir donner aux
mers et aux océans un régime juridique de nature à préserver la paix et la
sécurité.
Le délégué de la Zambie qui présidait le groupe des 77, représentant les Etats
en développement, déclara en septembre 1989, dans le cadre d’une plénière de
la Commission, que le groupe était prêt à engager un dialogue pour recher-
cher des solutions de nature à satisfaire les objections formulées par les Etats
industrialisés8. Sur la base de cette ouverture, les Etats-Unis demandèrent au
Secrétaire général de prendre l’initiative de convoquer des consultations afin
qu’un dialogue puisse s’ouvrir. Celles-ci devaient se tenir dans l’informalité et
la confidentialité pour permettre un dialogue franc.
Un papier britannique, présentant les 7 points de désaccord9 empêchant
les Etats industrialisés de devenir parties à la Convention, permit aux consul-
tations de s’engager avec la participation d’une trentaine de délégations repré-
sentées par leurs ambassadeurs pouvant présenter leur position avec autorité
dans un contexte hautement politique et particulièrement délicat.
Pendant deux ans, les consultations s’apparentèrent à des échanges de
vue pour lesquels le secrétariat préparait de simples résumés soulignant les
différentes positions sur chacun des points de désaccord. Avec l’élection du
nouveau Secrétaire général Boutros Boutros Ghali en 1992, les consultations
prirent un tour nouveau d’autant plus qu’approchait le nombre des 60 Etats
parties nécessaires à l’entrée en vigueur de la Convention. Il fallait engager

8 Pour le texte de la déclaration du délégué de la Zambie, voir 15 Bulletin du droit de la mer, 56.
9 Les points de désaccord étaient les suivants: Le coût des institutions, l’Entreprise, le mode
de prise de décisions, la Conférence de révision, la limitation de production, le fonds de
compensation et les termes financiers des contrats. Par la suite furent introduits le transfert
des techniques et les questions d’environnement. Ce dernier point ne fut pas retenu dans la
préparation du document informel ‘le papier bateau’.

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Le rôle du secretariat des Nations Unies 131

les négociations en poursuivant un double objectif : tout d’abord, au plan du

fond, proposer des solutions ayant pour effet de modifier le contenu des règles
sur lesquelles un large groupe d’Etats s’était pourtant prononcé en ratifiant la
Convention et ensuite trouver, au plan de la forme, la procédure qui permet-
trait en fait d’amender une Convention qui n’était pas entrée en vigueur.
Malgré son expérience acquise pendant toutes les années de la Conférence
et l’adjonction à DOALOS d’un personnel compétent en matière économique10,
le rôle marginal du secrétariat se vérifia en août 1993. En effet, un document
officieux, connu sous le nom de ‘papier bateau’, présenté par un groupe com-
posé d’Etats développés et d’Etats en développement fut introduit pour servir
de base aux négociations sans que le secrétariat n’en fût informé. Ce document
modifiait de façon substantielle la Partie XI de la Convention. Il s’apparentait
au ‘livre vert’ présenté par les USA en 1981. Il était clair qu’il était difficile d’asso-
cier le secrétariat, devenu en quelque sorte le gardien de la Convention, à une
modification des règles d’une Convention pour laquelle de nombreux Etats
avaient déposé leurs instruments de ratification.
Parallèlement, le secrétariat tenta dans les coulisses d’offrir des solutions
plus conformes aux règles du droit international mais l’histoire de cette négo-
ciation singulière devait s’écrire différemment et l’orthodoxie juridique devait
être sacrifiée pour obtenir un résultat de nature à favoriser l’acceptation uni-
verselle de la Convention. Le 28 juillet 1994 fut adoptée la résolution 48/263
contenant l’Accord relatif à l’application de la Partie XI de la Convention.
L’Accord reçut 42 signatures le jour de son ouverture à la signature le 29 juillet
1994.
Grâce à l’Accord, la Convention entra en vigueur le 16 novembre 1994.
L’objectif consistant à éliminer les imperfections pour permettre d’atteindre
l’universalité du traité fut donc atteint. Il a appartenu alors au secrétariat d’assu-
rer le respect de cette relation complexe existante entre l’Accord et la Partie XI
de la Convention. Il devait également assumer les responsabilités que la
Convention lui confiait, avalisées par l’Assemblée générale.
A côté de ces activités liées à l’adoption de l’Accord, le secrétariat continua
son travail d’informer les Etats sur la Convention et de surveiller la pratique
des Etats.

10 La Branche du Bureau des Affaires économiques, « the Ocean economic and technology
branch » (OETB) fut rattachée à DOALOS en 1988. Cette section avait assuré le service de
la Première Commission de la Conférence chargée des négociations sur la Zone.

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Activités à l’initiative du secrétariat pour la promotion des règles

et une meilleure information de la pratique des etats

Ces activités avaient pour objectif de chercher les moyens les mieux adaptés
pour faire comprendre certaines dispositions complexes en raison de leur
contenu technique. Dans cette optique, le secrétariat organisa en 1987 un
groupe d’experts sur la question des lignes de base11. Un autre groupe d’experts
se pencha en 1988 sur la recherche scientifique marine12.
Enfin un des sujets les plus complexes en raison de sa haute technicité et de
l’absence de précédents est celui du calcul de la limite extérieure du plateau
continental sur la base de la définition de l’article 76. Un groupe d’experts de
haut niveau fut organisé pour jeter un peu de lumière sur l’un des articles les
plus complexes de la Convention13.
Le secrétariat, afin de s’assurer que la pratique des Etats s’inscrivait dans
une application cohérente de la Convention et d’encourager son application
universelle, prépara de nombreuses publications14. Il convient de rappeler que
lorsqu’ une pratique se développe et reçoit l’assentiment d’une grande majo-
rité des membres de la communauté internationale, ce droit entre dans le
domaine de la coutume, autre source importante du droit international.
Une des premières publications fut le Bulletin du droit de la mer, publication
périodique reproduisant les textes de lois ou traités envoyés par les Etats ainsi
que toute autre action prise par ces derniers dans le cadre de la Convention
comme les déclarations faites au moment de la ratification ou accession. Il
reproduisait également des extraits de jugements. Créé en septembre 1983,
quatre-vingt numéros ont été publiés en anglais à ce jour (78 en langue fran-
çaise)15. Cette publication avec la Bibliographie (The law of the sea, a select
bibliography) restent les seules autorisées par l’Assemblée générale dans cette
période de restriction financière16.

11 Le Droit de la mer, lignes de base dans la Convention des Nations Unies sur le droit de la
mer, Publication des Nations Unies, No de vente F.88.V.5.
12 Le Droit de la mer, Recherche scientifique marine, Guide pour l’application des
dispositions pertinentes de la Convention des Nations Unies sur le droit de la mer,
Publication des Nations Unies, No de vente F.91.V.3.
13 Le Droit de la mer, Définition du Plateau continental, un examen des dispositions relatives
au plateau continental dans la Convention, Publication des Nations Unies, No de vente
F.93.V.16.
14 Pour la liste des publications, voir le site internet de DOALOS, www.un.org/depts/los.
15 Le bulletin est disponible en trois langues (anglais, français et espagnol) sur le site internet
de la Division.
16 Voir résolution A/67/78, para. 271.

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Le rôle du secretariat des Nations Unies 133

A côté des publications dont le but était principalement d’informer les Etats
de leurs actions prises pour se conformer au droit international nouvellement
établi, une série d’études analytiques sur des sujets complexes méritant d’être
approfondis pour permettre une meilleure compréhension fut entreprise
retraçant l’historique des négociations et comblant souvent l’absence de tra-
vaux préparatoires ainsi que l’absence de documents en raison du caractère
informel de nombreux travaux de la Conférence17.

Période à partir de l’entrée en vigueur : exercice des responsabilités

octroyées par la Convention et actions prises pour assurer la mise
en application des normes

Les normes établissant le régime juridique devant s’appliquer à toutes les acti-
vités pouvant s’exercer sur les espaces océaniques avaient acquis une certaine
valeur juridique en raison des années consacrées d’abord à la préparation au
sein du Comité des fonds marins et par la suite au sein de la Conférence. Des
Etats avaient commencé à les incorporer dans leurs législations nationales
avant l’adoption du traité. Il était donc important et nécessaire d’informer la
communauté internationale des activités législatives afin de présenter la pra-
tique qui commençait à se développer.
Après l’entrée en vigueur de la Convention, la Résolution A/RES/49/
28 du 6 décembre 1994 a énuméré l’ensemble des responsabilités assignées
au secrétariat. Parmi les tâches qui lui ont été confiées, une des plus impor-
tantes consistait à aider les Etats à appliquer la Convention et à adopter
une approche cohérente et uniforme à l’égard du nouveau régime établi par
celle-ci18. Il devait continuer à informer les Etats ainsi que les organisations
internationales des développements existant concernant les affaires mari-
times et le droit de la mer ainsi que de les assister dans l’interprétation des
règles contenues dans la Convention.
Les organisations internationales compétentes auxquelles la Convention
fait souvent référence jouent un rôle prééminent dans le développement et
l’application des normes en particulier dans les domaines où celle-ci leur fait
renvoi afin de réglementer des activités spécifiques.

17 Pour la liste des études, voir le site internet de DOALOS, note 14.
18 La résolution A/RES/52/26 du 26 novembre 1997 a renouvelé les responsabilités du
secrétariat en les renforçant. Les résolutions sont disponibles sur le site internet de la
Division, voir Supra.

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La coordination avec les organisations internationales qui est donc essen-

tielle pour assurer la cohérence du régime juridique dans son ensemble
a toujours soulevé une difficulté dialectique fondamentale inhérente à la
Convention qui requiert d’une part une approche uniforme mais d’autre part
traite de domaines d’activités s’exerçant sur les océans d’une façon sectorielle
comme la navigation ou la pêche qui relèvent des organisations internatio-
nales compétentes comme l’OMI et la FAO respectivement.
Différents types d’actions ont été accomplis par le secrétariat pour répondre
aux demandes faites par l’Assemblée générale. Ces fonctions appartiennent
à différentes catégories selon qu’elles procèdent de l’institutionnel ou du
relationnel.

Les fonctions d’ordre institutionnel

Elles sont liées à l’établissement des trois organes créés par la Convention dont
deux d’entre eux nécessitaient un travail de préparation pour démarrer leurs
responsabilités et leur permettre de fonctionner. Comme nous l’avons vu plus
haut, c’est la Commission préparatoire qui fut chargée d’accomplir cette tâche
pour donner à l’Autorité et au Tribunal les moyens de s’établir et de commen-
cer leurs travaux, assistée en cela par le secrétariat. Quant à la Commission des
limites du plateau continental, aucune directive n’avait été établie quant à son
fonctionnement sinon les bases juridiques de son établissement contenues
à l’article 76 et à l’Annexe II. Le secrétariat dut donc innover pour mettre en
place les modalités de travail de cet organe.
Avec l’entrée en vigueur de la Convention, l’Autorité et le Tribunal purent
commencer à exercer leurs responsabilités préparées en cela par la Commission
préparatoire qui de ce fait cessa ses fonctions. Dans le cas de l’Autorité, le secré-
tariat fut chargé de convoquer à Kingston (Jamaïque), siège de cette organisa-
tion, la première session de l’Assemblée et d’établir son ordre du jour.

Les fonctions d’ordre relationnel

Elles sont contenues à l’article 319 de la Convention. En premier lieu, il remplit

la fonction traditionnelle de dépositaire selon les termes de l’article 77 de la
Convention de Vienne sur le droit des traités. A cette fonction s’attachent les
notifications et les communications que le secrétariat doit adresser aux Etats
parties qui ont trait principalement aux amendements et à la révision.

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Parmi les fonctions nouvelles qui appartiennent à celles de dépositaire, il

en est une qui concerne l’application spatiale de la Convention, à savoir les
espaces maritimes sur lesquels les Etats exercent leur souveraineté et leurs
compétences. Le Secrétaire général est le dépositaire des cartes marines et
listes spécifiant les données géodésiques des limites établissant les différentes
zones sous la souveraineté ou le contrôle des Etats. Conformément aux articles
16, 47, 75, et 84 de la Convention, l’Etat côtier est tenu de donner la publicité
voulue à ses cartes ou listes de coordonnées géographiques spécifiant ses lignes
de base, les limites de sa mer territoriale, ses lignes de base archipélagiques, les
limites de sa zone économique exclusive et de son plateau continental ainsi
que les lignes de délimitation. Cette fonction est significative de la volonté des
négociateurs de régler une fois pour toute les frontières maritimes des Etats en
les obligeant à leur donner la publicité voulue par l’intermédiaire du Secrétaire
général qui devient ainsi le conservateur en chef des frontières maritimes
des Etats. Le secrétariat a développé, en plus du Bulletin du droit de la mer,
une circulaire LOSIC (Law of the Sea information Circular) pour informer les
Etats des dépôts reçus par le Secrétaire général ou des accords de délimitation.
Celle-ci qui compte à ce jour 36 numéros n’est publiée qu’en anglais.
Les limites extérieures du plateau continental, conformément à l’article 84,
paragraphe 2 devront également être déposées auprès du Secrétaire général de
l’Autorité. C’est au Secrétaire général de l’ONU qu’il appartient la responsabilité
d’en assurer leur publication.
Il est une autre fonction qui s’écarte de celle de dépositaire attribué au
Secrétaire général, elle concerne le rapport à faire à tous les Etats parties, à
l’Autorité et aux organisations internationales compétentes sur les questions
de caractère général qui ont surgi à propos de la Convention (Article 319, para-
graphe 2, lettre a)19.
Depuis 1983, le secrétariat a exercé cette responsabilité en y consacrant un
effort énorme pour faire en sorte que la communauté internationale fût infor-
mée d’une façon cohérente et inclusive de tous les développements concer-
nant les mers et les océans.
Pour la préparation de ce rapport général, les organisations internationales
doivent y participer en envoyant leurs contributions sur les développements
qu’a connus leur organisation durant l’année considérée.
Cette présentation de synthèse de toutes les activités s’exerçant sur les
océans respecte le principe édicté dans le préambule de la Convention par
lequel « tous les problèmes des espaces marins sont étroitement liés entre

19 Ces rapports sont reproduits en six langues sur le site internet de la Division.

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eux et doivent être envisagés dans leur ensemble ». La coopération avec les
institutions spécialisées dont le rôle dans l’élaboration et le développement de
règles spéciales en matière de navigation, de protection de l’environnement,
de conservation des ressources biologiques est primordial pour le développe-
ment harmonieux et cohérent du droit de la mer, doit non seulement se pour-
suivre mais s’intensifier.
Il reste une dernière catégorie de tâches qu’il appartient au secrétariat d’exé-
cuter. Elles relèvent de fonctions administratives spécifiques.

Les responsabilités d’ordre administratif

Le secrétariat exerce les responsabilités administratives qui sont celles généra-

lement attribuées au secrétariat de conventions. Dans le cas de la Convention
de Montego Bay, les responsabilités administratives étaient de deux sortes
d’une part la convocation des réunions des Etats parties conformément à
l’article 319, paragraphe 2, lettre e) et dans le cadre de celles-ci d’organiser
l’élection des membres du Tribunal (Annexe VI, article 4) ainsi que celle des
membres de la Commission des limites du plateau continental (Annexe II,
article 2)20.
Un des aspects novateurs de la Convention réside dans la règle du recours
obligatoire au règlement des différends confiant aux Etats, conformément aux
articles 287, 297 et 298, le soin de choisir, au moment de la ratification ou de
l’adhésion, les instances juridictionnelles ainsi que la procédure qu’ils sou-
haitent voir appliquer à leurs différents de même que les domaines où ils sont
habilités à écarter une telle procédure.
Dans ce contexte, il est confié au Secrétaire général, en vertu de l’Annexe V
prévoyant la conciliation, le soin d’établir la liste des conciliateurs, de nommer
éventuellement des conciliateurs en consultation avec les parties intéressées,
de recevoir des commissions de conciliation et leurs rapports et de les trans-
mettre aux parties au différend. Enfin il reçoit des Etats les notifications de
rejet de recommandations offertes par la Commission de conciliation.
Selon les règles contenues à l’Annexe VII qui prévoit l’arbitrage, le Secrétaire
général dresse et tient la liste d’arbitres alors que dans l’Annexe VIII, le
Secrétaire général peut participer à la constitution de tribunaux spéciaux d’ar-
bitrage en consultation avec les organisations internationales intéressées char-
gées de maintenir les listes d’arbitres (Annexe VIII, Article 3, lettre e).

20 Les comptes rendus des réunions des Etats parties sont disponibles sur le site internet de
la Division.

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En 2002, les Nations Unies célébrèrent les 20 ans de l’ouverture à la signa-

ture de la Convention. Malgré une nette progression du nombre des Etats
parties, l’adhésion aux règles contenues dans la Convention n’a toujours pas
produit une application uniforme. La même observation est malheureuse-
ment toujours valide dix ans après. Lors des célébrations du trentième anni-
versaire, le même constat de laxisme dans l’application des règles a été maintes
fois souligné par les délégués prenant la parole à la session de l’Assemblée
générale convoquée à cette occasion21. Il est important de souligner que
les règles, devenues d’une grande complexité, se sont multipliées dans tous les
domaines d’une façon exponentielle rendant de plus en plus difficile la capa-
cité à pouvoir toutes les répertorier et à en préserver la cohérence d’approche.
Le secrétariat s’est attelé à affronter ce nouveau défi malgré les difficultés dues
à l’éparpillement des forums de négociation et à l’espace occupé par les ques-
tions d’environnement, en ajoutant à cela les restrictions financières, lot de
toutes les organisations internationales.

Période de 2002 à nos jours : l’affaiblissement apparent du rôle

de DOALOS avec ‘l’environnementalisation’ de l’approche
des problèmes touchant aux mers et aux océans

Après la conclusion de la Convention en 1982 qui jeta les bases juridiques

de la protection et de la préservation du milieu marin en harmonie avec les
principes établis par la Déclaration de Stockholm (1972)22, la Conférence des
Nations Unies sur l’environnement et le développement s’est réunie en 1992 à
Rio23. Cette Conférence poursuivit l’objectif de lier le développement écono-
mique et social à la protection de l’environnement en y ajoutant l’idée supplé-
mentaire de développement durable qui signifie une gestion qui optimise les
bénéfices et les répartit d’une façon équitable sur une large période.
Avec Rio 1992, les questions d’environnement, traitées dans la Convention
à la partie XII établissant des règles générales comme des règles particulières
devant protéger et préserver l’environnement marin en réponse aux principes
adoptés à Stockholm, reçurent une attention spéciale. L’ère de ‘l’environne-
mentalisation’ des affaires maritimes débuta dont les effets allaient se faire

21 Voir Doc. Off. UN, A/67/PV 49 à 51.

22 Voir publication des Nations Unies, No de vente, E.73.II.A.14.
23 Voir rapport de la Conférence des Nations Unies sur l’environnement et le développement,
Rio de Janeiro, 3-14 juin 1992, publication des Nations Unies, No de vente F.93.I.8, vol. I :
Résolutions adoptées par la Conférence.

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sentir quelques années plus tard rendant le travail de DOALOS plus complexe.
Elle dut redéfinir son rôle en partageant ses responsabilités avec d’autres struc-
tures du secrétariat, en particulier le département de la politique de coordina-
tion et de la Commission du développement durable. Les priorités changèrent
sans doute parce que pouvaient être considérés comme réglés les domaines
du droit de la mer traditionnel comme la largeur des espaces maritimes et le
régime qui s’y applique.
Le Sommet mondial de Johannesburg en 2002 chargé d’évaluer, dix ans
après Rio, les progrès accomplis dans la mise en œuvre du développement
durable renouvela l’appel fait aux États de tenir compte des instruments inter-
nationaux pertinents24. Il confirma les nouvelles orientations axées sur la
durabilité des ressources et la protection de l’environnement marin.
Le plan d’application contenu au chapitre 17 de l’Agenda 21 adopté à Rio
en 1992 avait mis particulièrement l’emphase sur la nécessité d’une coordina-
tion et d’une coopération efficaces en rappelant une fois de plus le rôle de la
Convention qui constitue le cadre juridique d’ensemble pour les activités s’ef-
fectuant sur les mers et les océans. Ce souci primordial de mettre l’accent sur
la coordination entre tous les acteurs a été réitéré à la Conférence des Nations
Unies sur l’environnement et le développement convoquée en juin 2012 à Rio
(RIO +20) qui dans sa déclaration finale a une fois de plus placé la Convention
au centre de tous les développements25.
Il est clair que la prééminence des questions d’environnement et de déve-
loppement durable occupe désormais le devant de la scène, compliquant la
tâche de DOALOS appelé à trouver un modus operandi avec les secrétariats
des autres organes de l’ONU ou des institutions spécialisées ou programmes
traitant de ces sujets.
Devant un accroissement des sujets à traiter et la nécessité d’intensifier la
coordination entre tous les acteurs, l’Assemblée générale décida de créer en
1999 le processus consultatif officieux. Le Secrétariat dut assumer le service de
ce nouvel organe de l’Assemblée générale qui prit chaque année une impor-
tance plus grande.

24 Voir Rapport Sommet mondial pour le développement durable, Johannesburg, 26 août

4 septembre 2002, publication des Nations Unies, No F.03.II.A1 et rectificatif, chap. I,
résolution 2, annexe, par. 32 a) etc).
25 La Déclaration finale est contenue dans la résolution de l’Assemblée générale ONU 66/288
adoptée le 27 juillet 2012 contenant le document final de la Conférence des Nations Unies
sur le développement durable: « L’Avenir que nous voulons ».

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De plus, la mise en place de la Commission des limites du plateau continen-

tal entièrement servie par le secrétariat de DOALOS a également considérable-
ment accru son travail en demandant l’apport de nouvelles compétences pour
servir un organe éminemment scientifique.
Toutes les autres activités exercées précédemment par DOALOS se sont main-
tenues auxquelles se sont ajoutées celles liées à la formation qui sont essen-
tielles tant pour les délégués que pour développer les capacités permettant de
former au droit de la mer ceux occupant des responsabilités au sein de leurs
gouvernements ou départements administratifs. Le programme de coopération
entre l’ONU et la Fondation Nippon du Japon est un maillon essentiel de cette
activité26.

La recherche d’une amélioration dans la coopération et dans

l’intégration des questions de la mer : le processus consultatif
officieux

Par la résolution 54/33, du 24 novembre 1999, l’Assemblée générale des

Nations Unies décidait d’établir un processus consultatif officieux ouvert à
tous, ayant pour objet d’aider l’Assemblée générale à examiner chaque année
l’évolution des affaires maritimes sur la base du rapport du Secrétaire général
sur les océans et le droit de la mer en mettant particulièrement l’accent sur les
domaines appelant un renforcement de la coordination et de la coopération
inter-gouvernementales et inter-institutionnelles.
Les traités ou conventions qui se sont multipliés ne sont plus seuls pour
réglementer les relations entre Etats. Ils côtoient des instruments politiques de
nature volontaire adoptés dans le but d’encadrer l’action des Etats et orienter
leurs comportements. Ces instruments relèvent du droit dit programmatoire.
L’Etat est désormais astreint de revoir sans cesse ses positions au sein des dif-
férentes enceintes où sont débattus des sujets qui appellent des solutions de
nature à mettre en pratique les engagements juridiques préalablement pris.
Quatorze réunions du Processus consultatif se sont tenues jusqu’à ce jour.
Elles ont porté sur des sujets très variés comme la pêche illégale, non régle-
mentée et non déclarée et la science au service du développement durable27;
le rôle central de la coopération et de la coordination régionales28; les

26 Les différentes activités de formation sont énumérées sur le site internet de la Division.
27 Voir rapport du Processus consultatif, document Nations Unies, A/56/121 (2001).
28 Voir rapport du Processus consultatif, document Nations Unies, A/57/80 (2002).

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écosystèmes vulnérables29; le développement durable, les progrès réalisés

et les lacunes à combler dans la mise en œuvre des textes issus des grands
sommets30. L’acidification des océans occupa les délégués lors de la 14ème
session en 2013.
Le secrétariat de DOALOS eut à s’imposer pour servir cet organe. En effet, si
une grande majorité de délégations souhaitait voir DOALOS servir ce nouvel
organe, le secrétariat du développement durable considérait qu’il lui apparte-
nait d’en avoir la responsabilité. Un compromis fut trouvé par lequel les deux
secrétariats exerceraient cette fonction en coopération. DOALOS joua néan-
moins le rôle essentiel fort de son expérience et de ses connaissances portant
sur tous les aspects des questions des mers et des océans pour lesquels il était
demandé de promouvoir une gestion intégrée.
Le service du processus consultatif a mis une fois de plus en lumière la
nécessité d’une meilleure coordination entre les différents secrétariats non
seulement au sein de l’ONU mais aussi entre les organisations internationales
compétentes en matière d’affaires de la mer.
La nécessité d’une coopération et d’une coordination inter-organisations
s’était vue reconnue par la mise en place en 1993 du Sous-comité des Océans et
des Zones Côtières (SOCA) du Comité Administratif de la Coordination (CAC),
mécanisme chargé de coordonner les programmes des institutions spéciali-
sées du système des Nations Unies. Il comptait, mis à part DOALOS et CSD,
organes de l’ONU, des représentants de la FAO, l’OMM, l’OMI, l’UNESCO, la
COI, le PNUE, l’UIT, l’AIEA, le PNUD et la Banque mondiale.
En 2001, après une profonde réforme engagée en 1999 et 2000 pour revoir le
CAC et ses méthodes de travail, le Secrétaire général supprima le SOCA.
Par la résolution 57/141, les États Membres ont invité le Secrétaire général à
établir un mécanisme de coordination inter-institutions efficace, transparent
et régulier dont les trois fonctions essentielles seraient: a) l’établissement de
réseaux réguliers au niveau des experts pour la coordination courante des acti-
vités en cours et la gestion de projets conjoints ; b) la formulation de ripostes,
à l’échelle du système, aux questions nouvelles que repèrent les organes, les
institutions ou les programmes intergouvernementaux compétents, par le
biais d’arrangements adaptés aux caractéristiques propres de chaque question
et c) la vérification de l’exhaustivité des activités et de la cohésion stratégique,
fonction qui relève en dernier lieu du Conseil des chefs de Secrétariat des orga-
nismes des Nations Unies, avec l’appui du Comité de haut niveau.

29 Voir rapport du Processus consultatif, document Nations Unies, A/58/95 (2003).

30 Voir rapport du Processus consultatif, document Nations Unies, A/66/186 (2011).

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Le 31 octobre 2003, le Conseil des chefs de Secrétariat a créé un nouveau

mécanisme de coordination inter-institutions des Nations Unies pour les ques-
tions relatives aux océans et aux zones côtières, baptisé ONU-océans compre-
nant les 12 mêmes organismes, fonds, programmes et organes des Nations
Unies que comprenait SOCA ayant des compétences sur les questions relatives
aux océans.
Dix ans après sa création, cette structure appelée à renforcer la coordination
entre institutions n’a pu remplir les fonctions escomptées. Il apparaît donc que
seule une coopération ponctuelle puisse valablement exister. On peut citer
à titre d’exemple celle entre la COI/UNESCO et le PNUE qui ont collaboré à
la rédaction d’un rapport intitulé « Monts sous-marins, coraux en eaux pro-
fondes et pêches »31.
Les demandes faites à la Commission des limites du plateau continental
dont DOALOS assure le service ont accru considérablement les responsabilités
du secrétariat en lui confiant des activités qui réclamaient des compétences
particulières.

L’énorme tâche du secrétariat au service de la Commission

des limites du plateau continental32

La fonction principale de la Commission des limites du plateau continental

consiste, conformément à l’Annexe II de la Convention, à examiner les don-
nées et autres renseignements présentés par les États côtiers concernant le
tracé des limites extérieures du plateau continental quand ce plateau s’étend
au-delà des 200 milles marins. Elle peut également donner des avis scienti-
fiques et techniques en la matière aux États côtiers qui en font la demande
(art. 3 de l’Annexe II).
Le caractère innovateur des travaux de la Commission a demandé au
Secrétariat de faire preuve de créativité, de méthode et d’adaptation.
Par ailleurs, la haute technicité des données à traiter avait imposé de créer
au sein de DOALOS des infrastructures de nature à permettre aux membres de
la Commission d’analyser les données scientifiques et techniques soumises par
les États. Il existe aujourd’hui au sein de DOALOS trois laboratoires techniques.

31 Voir Seamounts, deep-sea corals and fisheries, Regional Sea Report and studies, No 183,
2006.
32 Voir Annick de Marffy-Mantuano : La fixation des dernières limites maritimes : le rôle de
la Commission des limites du plateau continental, in « La mer et son droit », Mélanges
offerts, ed. Laurent Lucchini & Jean Pierre Queneudec (Paris: Pedone, 2003), 399-419.

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Les deux premières sessions ont été consacrées à l’examen des articles du
projet de règlement intérieur. Lors de sa deuxième session, la Commission,
après de longs débats, adopta la majorité des articles du projet de règlement
intérieur préparé par le secrétariat (SPLOS/CLCS/WP.1). Toutefois, les articles
traitant des différends entre États concernant la délimitation des frontières
maritimes, de la question de la confidentialité des données, ainsi que de la pro-
tection des membres de la Commission contre toute responsabilité financière
pouvant résulter d’éventuelles allégations de violation des règles de confiden-
tialité, méritaient de plus amples réflexions avant de parvenir à une solution
acceptable par tous.
Face à la nouveauté des travaux de cet organe et les difficultés rencontrées
par les Etats pour préparer leurs demandes, le secrétariat offrit une assistance
en terme de substance et d’ordre financier. La question de la formation fut trai-
tée en priorité à la sixième session, l’objectif étant de mieux faire comprendre
les dispositions de l’article 76 de la Convention ainsi que les Directives, en
tenant compte en particulier des besoins des pays en développement.
La Commission par ailleurs a prié le secrétariat de rédiger un « manuel
de formation à l’établissement des demandes à soumettre à la Commission
des limites du plateau continental » en collaboration avec les membres de la
Commission, pour faciliter la préparation des demandes des États en dévelop-
pement (voir CLCS/29, par. 15).
Deux fonds d’affectation spéciale ont été créés par la résolution 55/7 de
l’Assemblée générale (30 octobre 2000). Les modalités d’accès à ces fonds sont
expliquées sur le site internet de DOALOS.
La première demande fut soumise à la Commission le 20 décembre 2001
par la Fédération de Russie en application du paragraphe 8 de l’article 76
de la Convention. Conformément à l’article 49 du Règlement intérieur de la
Commission (CLSC/3/Rev.4 et Corr.1), le Secrétaire général adressa une note
verbale à tous les États Membres de l’ONU et aux États parties à la Convention,
qui contenait la liste des coordonnées géographiques ainsi que les cartes mon-
trant les limites extérieures du plateau continental proposées, figurent dans la
communication russe.
Le Secrétariat, confronté pour la première fois à une demande, s’occupa
tout d’abord à établir un système pour son enregistrement. Il procéda à la véri-
fication que tous les documents requis avaient été soumis, en particulier le
nombre de copies exigé. Il s’employa par ailleurs à consigner dans un livre spé-
cialement ouvert à cet effet, tous les feuillets soumis. L’ensemble de toute cette
documentation fut alors envoyé à la traduction.
Cette première demande, extrêmement complexe par son application et
son contenu, s’est avérée un test très important pour l’application des règles

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élaborées par la Commission sans l’appui d’aucun précédent. La Commission

comme le secrétariat ont tiré les leçons de cette première expérience pour
mieux affronter les demandes à venir. A ce jour 66 demandes ont été soumises
et 18 ont fait l’objet d’une recommandation de la Commission permettant à ces
Etats d’étendre les limites de leur plateau continental au-delà des 200 milles
marins.
L’avènement de la prééminence des questions environnementales et
l’aggravation de la sectorialisation dans l’approche des questions de la mer
dont la complexité va en s’intensifiant, ont donné un rôle moins apparent à
DOALOS. La Division reste néanmoins le maillon essentiel car elle est seule
à pouvoir appréhender, dans une approche intégrée, toutes les questions
concernant les mers et les océans y incorporant tous les aspects : politiques,
économiques, scientifiques, techniques et juridiques qui les nourrissent. La
préparation annuelle du rapport du Secrétaire général présenté à l’Assemblée
générale sous le point ‘océan et droit de la mer’ est une preuve de la capacité
inégalée de DOALOS de construire une synthèse cohérente et inclusive de tous
les développements portant sur les affaires maritimes.
Le secrétariat de DOALOS doit continuer son rôle essentiel de gardien
de la Convention: la Constitution des océans33. Les résolutions annuelles de
l’Assemblée générale le renforcent dans cette responsabilité. Comme l’a rap-
pelé le Secrétaire général Ban Ki-Moon : « en tant que Constitution des océans,
la Convention forme une base solide et un document permanent qui assure
l’ordre, la stabilité, la prévisibilité et la sécurité sur la base de l’état de droit. »
Face à la fragmentation de l’approche des questions océaniques et compte
tenu du fait que les États restent les acteurs de la société internationale, le
secrétariat avec son expérience, son professionnalisme et l’objectivité avec
laquelle il a exercé ses responsabilités demeure le meilleur garant pour la pro-
motion des règles gouvernant les océans et un appui réaliste à leurs développe-
ments ordonnancés, contribuant ainsi à la paix et à la stabilité sur les espaces
marins, notre source de vie.

33 Voir doc ONU A/67/PV.49.

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 Chapter 11

The Contributions of Latin America to the

Implementation of the UNCLOS

Luis Valencia-Rodríguez

The So-called Classic Law of the Sea

The development of the Law of the Sea is related in its origins to the consid-
eration and establishment of the concepts of the liberty of the seas and the
breadth of the territorial sea, whose name was also ‘maritime belt’, ‘marginal
sea’, or ‘territorial waters’, that the States claimed to exercise sovereignty over
a belt of sea adjacent to their coastlines, especially to protect their territories.
For the Roman Cayo, the sea was res nullius, while another Roman Celso
maintained that it was res communis, and these two schools of thought led
to consider that the waters of the sea ought to be free, as free as the air, to
facilitate the contacts of peoples. Later, the Spaniard Francisco de Vitoria pro-
claimed that the sea had to be a means for communication among different
peoples. And other Spaniard Vasquez de Menchaca y Castro maintained that
the use of the seas could not harm anybody, and consequently it was not nec-
essary to establish limitations. The problem arose when politicians and jurists
tried to determine the measurement of the belt adjacent to the territory of
the State. During the XIV and XV centuries, the idea of the ‘reach of sight’ was
proposed by some jurists, but it was impossible to fix a distant of the sight
reaching. The Dutch jurist Cornelis van Bynkershoek, in a work published in
1702 (De Dominio Maris) propounded the doctrine that the power of the ter-
ritorial sovereignty extended to vessels within the range of cannon mounted
on the shore. This proposal had a basis on the maxim: Imperium terrae finiri
ubi finitur armorum potestas. The doctrine rested on the control of the actual
guns of ports and fortresses over adjacent waters. However, in the latter half
of the eighteenth century several States laid down limits of belts for pur-
poses of customs or fishery control in legislation and treaties. Accordingly,
many States extended their sovereignty up to four miles and even more. As
the ‘cannon-shot’ was by no means a definite criterion, suggestions for setting
up a convenient standard, or rather a substitute, began to appear. In 1782, the
Italian writer Galiani proposed three miles, or one marine league, and so

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_012

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the three-mile limit began to be adopted by most States. A significant aspect

of the development of the law was the intimate relation between claims to
jurisdiction for particular purposes over the high seas, and the extension of
sovereignty to a maritime belt. In spite that the three-mile rule had at that time
general acceptance, fairly soon developed pronouncements of assertions of
sovereignty associated, among other things, to neutrality and fishery activities.
At the beginning of XVII century, the Dutch Company of Eastern Indies,
seriously concerned by the expansion of English vessels in the sea that affected
its commercial interests, charged to Hugo Grotio (Hugo de Groot, Grotius), a
subject of the maritime power at that time who also was at the service of the
Dutch Company, to prepare a theory or a text to defend the Company against
those dangers. Grotio published then in 1609 the chapter called De mare libe-
rum, a part of his treatise De Jure Praedae, in which he proclaimed the principle
of the liberty of the seas, being considered from the navigation point of view or
from fisheries. But he did not advanced any proposal on precise limits for the
maritime belt belonging to the coastal State. But now the principle defended
by Grotio affected the British interests, and John Selden, a well-known jurist
published in 1635 his treatise Mare Clausum, proposing the theory aiming at
the territorialization of the sea, proposal that was enthusiastically adopted
by the King Charles I. But when the British vessels began to expand the British
supremacy in the sea, the theory of Selden was gradually disregarded. The
antagonism between the principle of the liberty of the seas, promoted by
Grotio, and the theory of the closed sea, defended by Selden, was forgotten,
and new basic notions appeared: high sea, territorial sea, internal waters and
adjacent zones.
The United States was one of the first States to adopt the three-mile rule
in a diplomatic note addressed by the then Secretary of State Jefferson to his
colleagues of Great Britain and France. During the XIX century some bilateral
agreements adopted this rule. But other States established different distances.
In 1889 in a treaty signed by Bolivia, Paraguay and Uruguay the distance of
5 miles was adopted. But in other instruments of the same period, the dis-
tances adopted were between 9 and 20 miles.
Wolfgang Friedman summarizes this situation as follows:

As a general principle of international law, the liberty of the seas has

less than three and a half centuries. It was logical that this doctrine
appeared during the exploration era, when Columbus, Cabot, Vasco da
Gama, Raleigh, Drake, Magalhaes and others began to unite Continents
of America, Asia, Australia and later the interior of Africa, with Europe.

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146 Valencia-Rodríguez

The classical legal battle was maintained by John Selden, who, as an

Englishman of the first part of XVII century, wanted to protect the inter-
est of a country that was not a naval power propounding a close sea, and
a Dutch, Hugo Grotio, who promoted an open sea for his then prevailing
maritime power that was his country. It is interesting to note that when
England gained later the naval superiority, became the supreme cham-
pion of the liberty of the seas.1

It is important to note that the concept of the liberty of the seas did not arise as
a pure law investigation, but as a consequence of very pragmatic reasons and
political interest of the then great maritime powers. Anyhow the concepts of
liberty of open seas and the establishment of the territorial sea were generally
advanced and accepted.
The rule proposed by Galiani (1782), giving a practical value to the
Bynkershoek theory, referring to the adoption of the cannon shot that, accord-
ing to the artillery of that time reached to one marine league or three nautical
miles, ceased for the moment the claims for more extension of the territorial
sea. However, a little later, the same great powers began to claim other exten-
sions based on arguments not only on military defence of the territory but
other reasons such levy of customs tariffs, sanitary regulations, immigration,
fisheries. These reasons were the basis for proposing the contiguous zone.

The Hague Codification Conference

The Institute of International Law recognized in its meeting in Paris, 1894,

that the real reach of cannons exceeded the three-mile limit, and established
the breath of the territorial sea in 6 miles. However, in its meeting of Stockholm
and Vienna (1924 and 1926, respectively) adopted the three-mile norm. But it
is convenient to recall that the Rapporteur proposed an extension of six miles
and a respected Portuguese jurist, Professor Magalhaes suggested twelve miles.
The German Society of International Law, while recognizing the extension of
three miles for the territorial sea, promoted the existence of another three-
mile contiguous zone for purposes of administration. The Research Committee
of the Harvard University, in its well-known Code of International Law, admit-
ted the three-mile rule, but at the same time suggested another zone, whose
extension was not fixed and in which measures related to customs, police and
sanitation supervision should be applied. The same distance was likewise

1 Wolfgang Friedman, The future of the oceans (New York: Georges Brazilier, 1971), 30.

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The Contributions of Latin America 147

adopted in 1926 by the International Law Association of Japan. The subject

was also discussed by the American Institute of International Law at its various
meetings, but it did not agree on any specific definite limit.
In view of the divergence of doctrines relating to territorial waters, the
League of Nations endeavoured to negotiate an international Convention on
the subject through the Committee for the codification of international law.
After examining many topics, the Committee came to the conclusion that the
laws of territorial waters, amongst two other subjects, were ripe for codification.
It took several years to prepare the ground. After receiving the official views of
the respective Governments to a ‘Questionnaire’ of the experts, a Committee
of Experts (five members) presented in September 1929 a document entitled
‘Basis of Discussion’. Ultimately, an international Conference was convened by
the Council of the League at The Hague from March 13 to April 12, 1930”. Forty
eight States were represented. From Latin America, Brazil, Colombia, Cuba,
Chile, El Salvador, Mexico, Nicaragua, Peru and Uruguay (9 States) attended.
The Second Commission was in charge of the most important issues: limit
of the territorial waters, juridical nature of these waters, rights of coastal states
on territorial waters, liberty of navigation, base lines, contiguous zone. The
chief difficulties in reaching an agreement related to: (i) the breadth of the ter-
ritorial sea (which expression the Committee preferred to territorial waters);
(ii) the right of a State to take measures outside this breadth in an adjacent and
contiguous area; and (iii) the definition of the nature of the rights which States
are entitled to exercise over the territorial sea.2
At the Conference the proposal was made to establish a three-mile limit as
a maximum, but there were some States which objected. In fact, a number of
States were in favour of not fixing a uniform distance for all purposes and for
all countries. Then it was proposed to allow various exceptions to the general
rule and to accept the principle of a zone on the high seas contiguous to the
territorial sea in which the coastal State could exercise the control necessary to
prevent the infringement of its customs and sanitary regulations or any inter-
ference with its security by foreign vessels. Twelve miles from the coast was
the limit here proposed. Great Britain, Canada, Australia, South Africa, India, the
United States, Brazil, Japan and Sweden were opposed to the establishment
of any contiguous zone. In the result, no agreement was found to be possible
on any of these points.
It was possible to observe that in that opportunity an important change in
the attitude of States concerning the breadth of the territorial sea had been

2 John Colombos, International Law of the Sea (London: Longmans, Green & Co, Ltd, 1967),
103–104.

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148 Valencia-Rodríguez

produced. Out of the 40 participating States, only 9 were in favour of territorial

sea of three miles; 10 accepted it joint with a contiguous zone whose extension
should be later determined; 16 States expressed that a territorial sea of three
miles with or without a contiguous zone was unacceptable; and two countries
(Russia and Denmark) abstained. Out of the 9 States that favoured the tree-
mile limit, the United States, Japan and the Netherlands expressed that they
supported that distant, but for certain purposes a more extensive distant had
to be adopted. Consequently, the exclusive defendants of the three miles were
reduced only to six and these six were all members of the British Empire.
The conclusions arisen from the documentation of The Hague Conference
indicated the following: (i) any State fixed the extension of the territorial sea
in less than three miles; (ii) the number of States that according to their leg-
islation have established special coastal zones has increase; (iii) the extension
of those special coastal zones was not identical; (iv) the interests on which
the establishment of those special zones were based were also different; and
(v) the external limit of the special coastal zones was not fixed unanimously.
The Hague Conference, therefore, could not established a definite rule on
the extension of the territorial sea, and the only conclusion that could be
accounted was that such a limit had to be fixed in more than three miles, and
that the maximum extension of three miles could not receive approval among
the majority of States.
In the same Conference, expressions were voiced on the justification for
the coastal State to extend its territorial sea under its internal legislation:
(i) Poland, for instance, submitted a proposal aimed at enable the coastal
States of a maritime region to fix by common accord the extension of the ter-
ritorial sea, determination that should be respected by all; (ii) the extension
of the territorial sea could not be fixed as an absolute rule, but in conformity
with the needs of each State, without violating recognized rights of other
peoples; (iii) the representative of Argentina promoted the idea that the ter-
ritorial sea should be changed according to the configuration of the coast; and
(iv) Sweden proposed that, in the absence of an international agreement to
limit the extension of the territorial sea, each State could, by itself, fixed ration-
ally the limit of its own territorial waters.
Gidel3 maintained that never “has existed nor exists to-day a positive norm
of international law that fixes with general character the breadth of the ter-
ritorial sea”. For this author, the so called ‘three-mile rule’ was the principal

3 Gilbert Gidel, Le droit international public de la mer, tome III (Paris: Sirey, 1934), 151 and
subsequent.

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The Contributions of Latin America 149

victim of the Conference. Consequently, in view of the diversity of theories

on the extension of the territorial sea, it was proper to recognize as a crite-
rion in force the right of the coastal State to fix such breadth. According to
the opinion of various scholars, in those cases, the State acts as a substitute
organ for the international community. The same thesis has been maintained
by the Chilean jurist Alejandro Alvarez in his dissenting opinion in the Anglo-
Norwegian Fisheries Case:

a) Taking into account the great variety of geographic and economic

conditions should not be possible to establish a uniform norm of
international law on the extension of the territorial sea, as neither
exists any uniform norm in relation to bays and straits;
b) Each State has the right to determine the extension of its maritime
domain on the condition that it has to do rationally; that it could be
able to maintain supervision over the zone and fulfill the duties on
it that should be imposed upon the State; that do not violate
acquired rights by other nations; that do not infringe general inter-
ests or perpetrate any abuse of law.

Although the Conference was unable to agree on a treaty, it was successful

in preparing a draft on “The Legal Status of the Territorial Sea”, which was
embodied in the Final Act of the Conference. A resolution was adopted
requesting the “Council of the League of Nations to transmit the Report and
annexes to the various Governments and that they be invited to continue,
in the light of the discussions of the Conference, their study of the questions
of the breadth of the territorial sea and questions connected therewith and to
endeavour to discover means of facilitating the work of codification”.

The Consultative Meeting of Panama

At the beginning of the Second World War, President Roosevelt signed a

Decree, on 5 September 1939, according to which he ordered the American
ships of war to patrol around the coasts of the United States and the Western
Indies at a distant of 200 miles, as a measure of protection and security. The
200 miles was the reach of radar waves of that time. The next step was the con-
vening of the Consultative Meeting of American Republics, which was held in
Panama (23 September–3 October, 1939).

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This meeting was convened under the Agreements adopted at the Inter-
American Conference for the Maintenance of Peace held in Buenos Aires in
1936, and the Eighth International Conference of American States which met
in Lima in 1938. On 23 October 1939, the Consultative Meeting recalled that
during the World War of 1914–1918:

the Governments of Argentina, Brazil, Chile, Colombia, Ecuador and

Peru advanced, or supported, individual proposals providing in principle
a Declaration by the American Republics that the belligerent nations
must refrain from committing hostile acts within a reasonable distance
from their shores. [. . .] To this end it is essential as a measure of necessity
to adopt immediately provisions based on the above-mentioned prece-
dents for safeguarding of such interests in order to avoid repetition of the
damages and sufferings sustained by the American nations and by their
citizens in the war 1914–1918.

Accordingly, they adopted the Declaration of Panama, with the purpose “to
provide for the establishment, in the light of the potential danger of the spread
of the hostilities arising out of the war in progress, of a protective belt” encir-
cling the American continent, and varying in parts between 300 and 1.200
miles wide. According to the Declaration, this belt was to cover

. . . the waters adjacent to the American continent, which they regard as

of primary concern and direct utility in their relations {of the American
States}, free from the commission of any hostile act, whether such hostile
act be attempted or made from land, sea or air (Article 1)

This was a regional (unilateral) extension of jurisdiction on the high seas for a
specific purpose, based on the principle of the inherent right of self-defense and
self-protection. There were opinions that claimed that the Panama Declaration
was close to the concept of territorial sea in the sense that it tried to delimit
a sui generis territorial sea for the American continent. Cordell Welles, former
Secretary of State, has recalled that the Declaration was President Roosevelt’s
idea. The same Welles has admitted that due to the difficulties in its enforce-
ment the idea of this zone was practically abandoned.4

4 Cordell Wells, The Memoirs of Cordell Welles, vol. 1 (New York, 1948), 689–690.

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The Contributions of Latin America 151

Truman Proclamations and the Latin American Reaction5

The United States was one of the strongest supporters of the three nautical miles
territorial sea doctrine. However, in 1945 it opened an era of extensive mari-
time claims. President Truman issued two proclamations in 1945. According
to Proclamation 2667 of September 28, 1945, it established the Policy of the
United States with Respect to the National Resources of the Subsoil and Sea
Bed of the Continental Shelf. The Proclamation was founded on

WHEREAS the Government of the United States of America, aware of the

long range world-wide need of new sources of petroleum and other min-
erals holds the view that efforts to discover and make available new sup-
plies of these resources should be encouraged; and

...

WHEREAS it is the view of the Government of the United States that

the exercise of jurisdiction over the natural resources of the subsoil of the
continental shelf by the contiguous nation is reasonable and just, since
the effectiveness of measures to utilize or conserve these resources would
be contingent upon cooperation from the shore, since the continental
shelf may be regarded as an extension of the land-mass of the coastal
nation and thus naturally appurtenant to it, since these resources fre-
quently form a seaward extension of a pool or deposit lying within the
territory, and since self-protection compels the coastal nation to keep
close watch over activities off its shores which are of the nature necessary
for utilization of these resources.

These were basis for President Truman to proclaim the following policy:

Having concern for the urgency of conserving and prudently utilizing its
natural resources, the Government of the United States regards the natu-
ral resources of the subsoil and sea bed of the continental shelf beneath
the high seas but contiguous to the coasts of the United States, subject to
jurisdiction and control. In cases where the continental shelf extends
to the shores of another State, or is shared with and adjacent States, the
boundary shall be determined by the United States and the State con-
cerned in accordance with equitable principles. The character as high

5 Dupuy-Vignes, A Handbook on the New Law of the Sea, vol. 5 (Leiden: Martinus Nijhoff
Publishers, 1991), 453–455.

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152 Valencia-Rodríguez

seas of the waters above the continental shelf and the right to their free
and unimpeded navigation are in no way thus affected.

Proclamation 2668 was founded in

WHEREAS there is an urgent need to protect coastal fishery resources

from destructive exploitation, having due regard to conditions peculiar
to each region and situation and to the special rights and equities of the
coastal State and of any other State which may have established a legiti-
mate interest herein;

And upon this basis, President Truman proclaimed the following policy
of the United States with respect to coastal fisheries in certain areas of the
high seas:

In view of the pressing need for conservation and protection of fishery

resources, the Government of the United States regards it as proper to
establish conservation zones in those areas of the high seas contiguous
to the coasts of the United States wherein fishing activities have been or
in the future may be developed and maintained on a substantial scale.
Where such activities have been or shall hereafter be developed and
maintained by its nationals alone, the United States regards it as proper
to establish explicitly bounded conservation zones in which fishing activ-
ities shall be subject to the regulation and control of the United States.
Where such activities have been or shall hereafter be legitimately devel-
oped and maintained jointly by nationals of the United States and nation-
als of other States, explicitly bounded conservation zones may be
established under agreements between the United States and such other
States, and all fishing activities in such zones shall be subject to regula-
tion and control as provided in such agreements. The right of any State to
establish conservation zones off its shores in accordance with the above
principles is concerned, provided that corresponding recognition is given
to any fishing interests of nationals of the United States which may exist
in such areas. The character of high seas of the areas in which such con-
servation zones are established and the right to their free and unimpeded
navigation are in no way thus affected.

It is important to note that the second Proclamation (2668) was never applied.
Nevertheless, these proclamations marked a turning-point in the law of the
sea by encouraging other States to establish extensive maritime claims, both
unilateral and regional.

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The Contributions of Latin America 153

Latin American Unilateral Claims

Before the 1958 Law of the Sea Conference

The Mexican Executive, in its proposed 1945 amendment to Article 27 of the
Constitution held that: “direct dominion over the continental shelf and
the submarine terraces belongs to the nation. . . the waters of the seas over the
continental shelf and submarine terraces are also the property of the nation . . .”.
In 1946, Argentina issued Decree No. 14.708 Concerning National Sovereignty
over the Epicontinental Sea and the Continental Shelf, which described the
waters over the shelf—the epicontinental sea—as: “transitory zones of min-
eral reserves . . . characterized by extraordinary biological activity, owing to the
influence of the sunlight, which stimulates plant life (as exemplified in algae,
mosses, etc) and the life of innumerable species of animals, both susceptible
of industrial utilization”. Then, in an obvious misconstruction of the Truman
Proclamation, Argentine declared that:

whereas . . . the Governments of the United States and Mexico have

issued declarations asserting the sovereignty of each of the two countries
over the respective peripheral epicontinental seas and continental
shelves . . . it is hereby declared that the Epicontinental Sea and
Continental Shelf are subject to the sovereign power of the Nation.

This declaration did, however, specify that the character of the waters in ques-
tion remained unaffected for the purpose of free navigation.
Panama in its 1946 Constitution proclaimed State ownership over both the
territorial sea and the shelf. However, Decree 449 (1946) proclaimed “national
jurisdiction for the purpose of fishing in general” over its territorial sea and the
superjacent waters of the shelf. All fisheries, which it considered a ‘national
product’ within these limits, were subjected to the provisions of national legis-
lation. On May 1, 1947, the Congress of Nicaragua adopted a declaration extend-
ing its national sovereignty over the adjacent shelf which, on the Atlantic side
is the most extensive in Central America.
Chile was the first State to establish a 200 nautical- mile maritime zone.
Through the Presidential Declaration of 23 June 1947, it proclaimed “national
sovereignty (a) over its shelf and the resources therein;” and (b) over “the seas
adjacent to its coasts whatever may be its depths, and within those limits nec-
essary in order to reserve, protect, preserve, and exploit the natural resources
of whatever nature found on, within, and below the said seas, placing within
the control of the government especially all fisheries and whaling activities
with the object of preventing the exploitation of natural riches of this kind
to the detriment of the inhabitants of Chile and to prevent the spoiling or

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destruction of the said riches to the detriment of the country and the American
continent.
Chile stated that its Declaration did not “disregard the similar legitimate
rights of other States on the basis of reciprocity, [nor did it] affect the rights of
free navigation on the high seas”. The breadth of the zone was fixed at 200 nau-
tical miles, without prejudice to future enlargements or modifications. This
limit, it claimed, was consistent with the security zone adopted in the 1939
Declaration of Panama.
Under Presidential Decree No. 781, Peru extended its national sovereignty
and jurisdiction to the submarine areas regardless of the depth of the super-
jacent waters, and to the adjacent sea to the extent necessary for the preser-
vation, protection, conservation and exploitation of the natural wealth and
resources therein. The width of the zone was 200 nautical miles, within which
the right of free navigation of all States would not suffer ‘any prejudice’ in
accordance with international law.
By Decree 116 (1948) Costa Rica proclaimed its “national sovereignty over
the seas adjacent to the continental and insular coasts of the national terri-
tory, whatever their depth, and to extent necessary to protect, conserve, and
utilize the natural resources and wealth”. This Decree also claimed: “the protec-
tion and control of the State . . . over all the sea included within the perimeter
formed by the coasts and by a mathematical parallel, projected out to the sea
at a distance of 200 maritime miles”. The Decree was revised by Legislative
Decree 803 (1949), which changed the expression ‘national sovereignty’ to
‘rights and interests of Costa Rica’ and the word ‘control’ applicable to the 200-
mile zone was deleted.
The 1950 Constitution of El Salvador established a 200 nautical miles
claim. “The territory of the Republic within its present boundaries is irreduc-
ible. It includes the adjacent sea to a distance of 200 sea miles from the low-
water line and the corresponding air space, subsoil and continental shelf”.
However, within this zone freedom of navigation was not affected. The inclu-
sion of the ‘corresponding air space’ was a new variation not found in the pre-
vious claims. This constitutional provision with regard to fishing and marine
hunting was implemented by means of Law No. 1961 (1955).
Similarly, Honduras passed Legislative Decree No. 25 (1951) which extended
national sovereignty over the shelf and ‘the waters covering it’, at whatever
depth it might be found and whatever its extent might be; it claimed full,
inalienable, and imprescriptible dominion over all the resources which were
found in the area . . .
Brazil, in its Decree 1098, on 25 March 1970, expressed that the “special inter-
est of the coastal State in the maintenance of productivity of living resources

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The Contributions of Latin America 155

of maritime zones adjacent to the coast is recognized by international law” and

that “such an interest can only be efficiently protected by the exercise inherent
to the concept of territorial sea”. According to Article 1 of this Decree, “the ter-
ritorial sea of Brazil comprises a zone of 200 miles-breath, measured from the
low-water line along the coast . . .”. This sovereignty comprises “the aerial space
over the territorial sea as well as the bed and subsoil of this sea”. Vessels of all
nations enjoy the right of innocent passage.
Most of the above claims went beyond the Truman Proclamations in at
least two respects: they undertook to effect a categorical extension of sover-
eignty over the continental shelf and sea bed, and over the superjacent waters.
These differences reflect the divergent approaches to the problem of maritime
jurisdiction. The Truman Proclamation on the shelf only referred to the nat-
ural resources of its shelf as appertaining to the United States. The Truman
Proclamation, in attempting to establish fishing conservation zones in areas
of the high seas contiguous to its coasts, made no reference to the shelf, but
proceeded on a general theory of the right of a coastal State to protect its con-
tiguous fisheries. The Latin American States, however, sought to achieve their
objectives through a single comprehensive claim over the shelf and its super-
jacent waters, an assertion of sovereignty which went beyond anything put for-
ward in either the Truman Proclamations and revived the early formulations
of the shelf theory.
The above-mentioned Latin American claims were challenged generally
on the grounds that they violated the freedom of the high seas. The United
States held that these claims appeared to be “at variance with the generally
accepted principles of international law” and “reserved the rights and interests
of the United States so far as concerned any effects” of these decrees or of any
measures designed to put into operation. In its view, the Argentine declara-
tion, for example, asserted sovereignty over the shelf and the seas adjacent
to the coasts beyond generally accepted limits of the territorial sea and, with
respect to fishing, it failed to accord recognition to the United States’ rights and
interests in the high seas off the Argentine coast.

Declaration of Santiago (Declaration on the Maritime Zone)

18 August 1952

It was certain that the Latin American countries were determined exclu-
sively to control and exploit the offshore marine resources. Unable to do this
under the traditional concepts of the law of the sea, they claimed sovereignty
over areas of the sea with the purpose of exercise certain functions of this

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sovereignty, primarily the exclusive control and exploitation of fishing. Chile,

fearing the offshore whaling operation of European fishing fleets, began con-
sultations with its neighbours in order to muster support for this position. Both
Ecuador and Peru offered support, albeit for different reasons, as their whaling
rarely took place beyond 25 nautical miles from the shore. Nevertheless, they
were keen to protect their fishing fleets, as the prospect of the United States
tuna fishing in their waters was growing.

The three States met in Santiago and signed the Declaration on the
Maritime Zone (18 August 1952) which they subsequently ratified and
which was acceded to by Costa Rica in 1955 and Colombia in 1980. The
text of the Declaration is the following:

1. Governments have the obligation of securing the necessary welfare con-

ditions for their peoples, and provide them with the means for their eco-
nomic development.
2. Consequently, it is their duty to preserve and protect their natural
resources, regulating their employment, in order to obtain the best
advantages for their respective countries.
3. It is also, therefore, their duty to impede that the exploitation of such
resources beyond their field of jurisdiction may threat the existence,
integrity, and preservation of such resources, causing a deleterious effect
on their peoples that, due to their geographic position, rely on the vital
and irreplaceable source of welfare and economic resources provided by
the sea.

Because of the aforementioned, the Governments of Chile, Ecuador, and Peru,

committed to preserve and secure for their respective peoples the natural
resources of the sea bathing their coasts, hereby state the following

Declaration

I) The previous territorial sea and contiguous zone extension, due to the
geological and biological factors conditioning the existence, preserva-
tion, and development of the flora and fauna of the waters bathing the
coasts of the High Contracting Parties, are considered insufficient to pre-
serve, develop, and employ the resources to which the coastal countries
feel they are entitled.

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II) Consequently, the Governments of Chile, Ecuador, and Peru state as, a
regulation of their international maritime policy, their exclusive sover-
eignty and jurisdiction over the sea bathing the coasts of their respective
countries, up to a minimal distance of 200 nautical miles from their
coasts.
III) The exclusive jurisdiction and sovereignty over the aforementioned mar-
itime zone also includes the exclusive sovereignty and jurisdiction over
the corresponding soil and subsoil.
IV) In the case of insular territories, the 200-nautical-mile zone will be appli-
cable to the all-out sea circling the island or group of islands.
Should any island, or group of islands, belonging to one of the High
Contracting Parties, lie within the range of the 200 nautical miles of the
general maritime zone corresponding to another of the High Contracting
Parties, the maritime zone of such island, or group of islands, will be lim-
ited by the parallel of the point where the land border of the respective
State touches the sea.
V) This Declaration does not imply ignoring the necessary limitations to the
exercise of sovereignty and jurisdiction, as established by the Interna-
tional Law, on behalf of innocent and inoffensive passage for vessels of all
nations through such zone.
VI) The Governments of Chile, Ecuador and Peru hereby state their purpose
to subscribe agreements or conventions for the application of the prin-
ciples stated in this Declaration, in order to establish general norms
aimed at the regulation and protection of hunting and fishing within
their corresponding maritime zone, and to regulate and coordinate the
exploitation and employment of any other natural product or resource
whatsoever, existing in such waters, that may be of common interest.6

Ratifications:
Ecuador: Executive Decree Nº 275, February 7, 1955 (“Registro Oficial”
Nº 1029, January 24, 1956.
Chile: Supreme Decree Nº 432, September 23, 1954 (“Diario Oficial”
November 22, 1954)
Peru: Legislative Resolution Nº 12,305, May 6, 1955, with the executing
order by Supreme Decree May 10, 1955 (“El Peruano”, May 12, 1955)

6 Haydee Rojas & Juan Raud, The Permanent South Pacific Commission (Santiago de Chile: Red
Internacional del Libro, 1993), 11–12, 85.

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Colombia: The instrument of accession was deposited on April 16, 1980,

at the Ministry of Foreign Affairs of Ecuador, Law 7, Art. 4, February 4,
1980.
Registered at the U.N., May 12, 1976, Registration Nº 21404. U.N. Agreement
Nº 14578.

The “Declaration of Santiago” marked the beginnings of the Permanent South

Pacific Commission (Comisión Permanente del Pacífico Sur, CPPS). The legal
capacity of the Commission was established through an Agreement subscribed
on January 14, 1966. Colombia joined the regional organization on August 9,
1979.
That was the importance of the Truman Proclamations? What was their
effect on Latin American States, and particularly on the law of the sea?
A reply to these questions is given in A Handbook on the New Law of the
Sea.7 The Truman Proclamation—it says—firmly consolidated the distinction
between the question of the legal regime governing fisheries resources beyond
the territorial sea and the regime governing mineral resources. As far as the
legal concept of the continental shelf is concerned, it established its main
characteristics: as the source of the concept of natural prolongation (“. . . since
the continental shelf may be regarded as an extension of the land-mass of the
coastal nation and thus naturally appurtenant to it . . .”), the chief doctrine it
enunciated, as the International Court of Justice stressed in 1969, regarded “the
coastal State as having an original, natural, and exclusive (in short a vested)
right to the continental shelf off its shores”.8 It established a clear separation
between the territorial sea and the shelf, over which the coastal State could
not extend its sovereignty, but only its jurisdiction and control, and postulated
the principle of the necessary compatibility between such a regime and the
freedom of the superjacent waters.
Two further factors had an impact on the Truman Proclamation as much
as their content, and possibly even more so: one was a political factor, i.e.,
the indisputable ‘weight’ of the United States,9 while the other was a legal one.

7 Dupuy—Vignes, A Handbook on the New Law of the Sea, ob., cit., part 6, 325–327. The foot-
notes of this commentary are here reproduced.
8 ICJ Reports (1969): 32–33. It should also be noted that the Truman Proclamation does not
define the extension of the continental shelf, although it specifies its regime. It is only in
the accompanying press release of 28 September 1945 (see Whiteman, op. cit., 758) that the
100-fathom criterion is mentioned as an example rather than an exact limit.
9 See Zdenek J. Slouka, International Custom and the Continental Shelf (The Hague: Martinus
Nijhoff, 1968), 80.

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As Souka remarked, it contained two elements which indicated the existence

of a deliberate intention to initiate the development of a rule of customary
law: first, the Proclamation “was based on facts and goals of a general char-
acter, not applicable exclusively to the United States” but to all coastal States;
second, it contained an ‘element of reciprocity’ in that in order to

have this right recognized by others, the United States was, implicitly, yet
clearly, denying itself an opportunity to assert for itself or its national
industries free access to the resources hidden in about ten million square
miles of the continental shelves off foreign coasts,

and thereby called on other States ‘to adopt a corresponding policy’.

Georges Scelle therefore had good reasons to lament the danger of succes-
sive encroachments on the international public domain of the sea, when he
accused the U.S. Government of adopting the attitude of a ‘sorcerer’s appren-
tice’ and criticized the hollowness of protests lodged by the United States
about unilateral declarations which, although they gave rise to an ‘incredible
extension’ to the original approach of the Proclamation, were nevertheless
the consequence of that Proclamation (“Plateau continental et droit interna-
tional” RGFIP, 1955)
However, the practice initiated by the Truman Proclamation was far
from consistent. On the one hand, a number of Latin American States did
not adhere to the threefold distinction between mineral and biological
resources; the shelf and superjacent waters; jurisdiction and control and
sovereignty. These States extended their sovereignty over the maritime areas
corresponding to the ‘epicontinental sea’10 or to a distance of 200 nautical
miles,11 bringing us into the scope of unilateral claims by States which heralded
the concept of the exclusive economic zone. On the other hand, even States
which confined their extended competence to the shelf itself, as intended
by the Truman Proclamation, did not adopt a uniform position. Whereas
some States used the term ‘jurisdiction and control’ contained in the Truman
Proclamation declarations, others, such as Australia in 1953, used the expres-
sion ‘sovereign rights’ and some, such as Pakistan and Brazil, did not hesitate

10 This interesting concept of the ‘epicontinental sea’ in which the influence of the above-
mentioned Argentinian authors can be seen, was introduced by Argentina alongside that
of the continental shelf in the strict sense in decree Nº 14.708/46 of 11 October 1946.
11 Chile, Peru (1947), Costa Rica (1948), El Salvador (1950), joint declaration by Chile,
Ecuador and Peru (1952).

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to annex the continental shelf as an integral part of their territory. Given such
differing approaches, an effort to harmonize the applicable law was deemed
necessary.

Latin American Statements

The Inter-American Council of Jurists, in its first meeting (Rio de Janeiro,

1950) studied all the declarations made by the Governments and organs of the
American continent up to that date, among them the Truman Declarations and
the decrees of Latin American States, most of them referring to the continental
shelf. The Council instructed to its Permanent Committee, the Inter-American
Juridical Committee, to study the subject “Regime of the territorial sea and
related questions”. In compliance of this request, the Juridical Committee
submitted to the Council in 1952 a draft Convention in which, according to
Articles 1 and 2, the States acknowledge that

the present international law recognizes that the coastal nation has
exclusive sovereignty over the bed, subsoil, waters and aerial and strato-
spheric space of its continental shelf, and that such a sovereignty is exer-
cised without any requisite of real or virtual occupation, and the right of
each State to determine a zone of protection, control and economic
exploitation, up to a distance of two hundred miles measured from the
low water line . . .

The Inter-American Council, in its second meeting (Buenos Aires, 1953),

decided to postpone the consideration of the draft submitted by the Juridical
Committee, but recognized as a real fact that due to the technical development
of means of exploration and exploitation of natural resources in the continen-
tal shelf, the international law should accept that coastal States have “the right
to protect, conserve and promote such resources, as well as to get advantage
of their use . . .”
The X Inter-American Conference, held in Caracas in 1954, adopted
Resolution LXXXIV, according to which it reaffirmed “the interest of American
States in declarations or national legislative acts proclaiming sovereignty,
control or rights of exploitation or surveillance up to a certain distance from
the coast, over the submarine shelf and waters of the sea and the resources
therein”. Furthermore, it decided to convene a specialized conference in
charge of studying the different aspects of the juridical and economic regime

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of the submarine shelf, the waters of the sea and the natural resources therein.
This question was included in the agenda of the third meeting of the Inter-
American Council of Jurists.
That meeting of the Council of Jurists was held in Mexico, from 17 January to
14 February 1956. It adopted the “Principles of Mexico on the Juridical Regime
of the Sea”. Among those principles were the following:

1. The extension of three miles to limit the breath of the territorial sea is
insufficient and is not a general rule of International Law. Therefore, the
enlargement of the zone of the sea traditionally called territorial sea is
justified.
2. Each State is competent to establish its territorial sea up to reasonable
limits, due regard to geographical, geological and biological factors, as
well as the economic requirements of its population and its security and
defence.

The Specialized Conference of Ciudad Trujillo (March, 1956) on “Preservation

of Natural Resources: Submarine Shelf and Waters of the Sea”, convened
according to Resolution LXXXIV of the X Inter-American Conference, did not
contribute in the same way as the Council of Jurists. However, it reaffirmed
the exclusive right of the coastal State to exploit the natural resources on the
bed and subsoil of the continental shelf. In relation to the territorial sea, it
submitted to the American States a conclusion in the sense that there existed
“diversity positions among the States represented in this Conference in respect
to the extension of the territorial sea”. The III Congress of the “Hispano-Luso-
American Institute of International Law” (Quito, October, 1957) ratified the
above doctrine with the following words:

1. That it is a right and an inescapable duty of coastal States to defend their

maritime riches existing in the bed and subsoil of the sea and in the
waters covering them.
2. That States are competent to unilaterally establish the extension of the
territorial sea beyond the distances commonly acceptable, inasmuch as
necessary to give adequate protection to the objectives indicated in para-
graph number one.

On 21 July 1965, the Juridical Committee, the organ of the Inter- American
Council of Jurists, on the basis on a report submitted by its Rapporteur, Alfonso
Garcia Robles, adopted a Resolution. Articles 1, 2 and 3 said:

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1. All American State has the right to determine the breath of its territorial
sea up to the limit of twelve nautical miles measured from the low-water
line along the coast.
2. In cases that the State determines a lesser breath, the State will have a
fishing zone contiguous to its territorial sea, over which it will exercise
the same fishing rights as in its territorial sea. The State will have the right
to extend this zone up to the limit of twelve nautical miles, measured
from the point from which the territorial sea is established.
3. The previous provisions in any way prejudice the extension of the adja-
cent zone to the high seas that the coastal State may determine when it
has a special interest in maintaining the productivity of living resources
of the sea, as well as a preferential right for the exploitation of said
resources, in which case the State will be empowered to establish the
necessary measures aimed at securing the conservation of such resources.

The Meeting of Montevideo on the Law of the Sea, which the representatives
of Argentina, Brazil, Chile, Ecuador, El Salvador, Nicaragua, Panama, Peru and
Uruguay attended, adopted on 8 May 1970 the Declaration of Montevideo.
According to its most relevant paragraphs, it recognized:

1. The right of coastal States to have at their disposal the natural resources
of the adjacent sea to their coasts, and in the bed and subsoil of such a
sea, in order to promote the maximum development of their economies
and to increase the standard of living of their populations.
2. The right to establish limits of their zone of maritime sovereignty and
jurisdiction, in conformity with the geographical and geological charac-
teristics and with factors conditioning the existence of the maritime
resources and their rational exploitation.
6. The right to adopt regulation measures for the above mentioned objec-
tives to be applied in the zones of maritime sovereignty and jurisdiction,
without prejudice of the freedom of navigation and over-flight of vessels
and airships of any flag.

The Latin-American Meeting on some aspects of the Law of the Sea was held in
Lima few months after the Meeting of Montevideo. In the case of the Meeting
of Lima, some States of the Caribbean region were invited, and for this reason
20 States were represented. The Declaration of Lima, on 8 August 1970, con-
tained five principles. With slight modifications, they reproduced paragraphs 1,
2 and 6 of the Declaration of Montevideo. The delegations of Mexico, Panama,

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Dominican Republic and Venezuela made interpretative declarations to the

second principle on the right of a coastal State to establish limits to its zones
of maritime sovereignty and jurisdiction. The delegations of Argentina, Chile,
El Salvador, Brazil, Colombia, Ecuador, Honduras, Nicaragua, Panama and Peru
made interpretative declarations to the third principle on the right of a coastal
State to adopt regulation measures on its zones of maritime sovereignty and
jurisdiction. The declaration made by Ecuador was the following:

The delegation of Ecuador . . . wishes to put on record that the liberty of

navigation in its territorial sea established by its national legislation
according to the limits established by the Declaration of Santiago de
Chile of 18 August 1952, does not imply renunciation to the capacity of
full exercise of the rights of the coastal State in that sea.

The Specialized Conference of the Caribbean States on Problems of the Sea was
held in Santo Domingo and fifteen States were present (Barbados, Colombia,
Costa Rica, El Salvador, Guatemala, Guyana, Haiti, Honduras, Jamaica,
Mexico, Nicaragua, Panama, Dominican Republic, Trinidad and Tobago and
Venezuela). On 9 June 1972, the “Declaration of Santo Domingo” was signed
by the representatives of 10 States. The principles of this instrument referred
to the following matters: a) territorial sea; b) patrimonial sea; c) continen-
tal shelf; d) international deep sea bed; e) high seas; f) pollution of seas; and
g) regional cooperation. According to this document, a new concept appeared:
‘patrimonial sea’.
In relation to the territorial sea, the “Declaration of Santo Domingo” estab-
lished that “All States have the right, in the meanwhile, to determine the breath
of its territorial sea up to the limit of 12 nautical miles”.
The section related to the patrimonial sea has five principles of special
importance are those numbered 1, 3 and 5:

1. The coastal States exercise sovereign rights over natural resources,

whether living or not living, existing in waters, in bed or subsoil, of a zone
adjacent to the territorial sea, called patrimonial sea.
3. The breath of the patrimonial sea has to be the object of an international
agreement, preferentially of world scope. The addition of this zone and
that of the territorial sea, due regard to geographical circumstances, shall
not exceed a total of 200 nautical miles.
5. In the patrimonial sea, vessels and airships of all States, whether coastal
States or landlocked, have the right of free navigation and over-flight,

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without any restrictions except those resulting of the exercise by the

coastal State of their rights over such a sea. With these sole limitations,
there shall be also freedom to laying of submarine cables and pipelines.

The idea of the ‘patrimonial sea’ had its origin in a draft submitted in 1971
to the Inter-American Juridical Committee by the Chilean jurist Edmundo
Vargas Carreño, in his capacity as Rapporteur on the theme Law of the Sea.
Andrés Aramburú,12 on mentioning this idea, recalls that it appeared in
the Truman Proclamations, and finds deficiencies in the Santo Domingo
Declaration: that many signatory States have coasts both in the Caribbean and
the Pacific seas, which could imply “adopting different distances and different
regimes”; and that the coastal State would only exert “sovereign right over the
natural resources existing in the area”. To this respect, he adds:

Sovereignty is indivisible. It is not possible to have sovereignty for certain

effects and not for others. And it is more absurd to have sovereignty over
the resources without having sovereignty over the place where they exist.

The result of the “Santo Domingo Declaration”, in spite of the efforts made by
many Latin-American countries to avoid it, was the division between ‘territo-
rialists’ and ‘patrimonialists’, which prevented these countries from present-
ing at that moment a uniform front, as well as favoured the great maritime
powers’s hurdles to any understanding.
The last pronouncement in the Latin-American context was on 9 February
1973, when the Inter-American Juridical Committee adopted the Resolution
on the Law of the Sea. Paragraphs 1, 2 and 4 expressed the following:

1. Sovereignty or jurisdiction of a coastal State extends further than its ter-

ritory and its interior waters, to an extension of the adjacent sea to its
coasts, up to a maximum of 200 nautical miles, as well as to the aerial
space, the bed and subsoil of such a sea. Therefore, the determination up
to 200 miles that any American State could have made or shall make is
valid, providing that it respects the provision of Article 4.
2. Inside this maritime extension two zones are distinguished: one which
extends up to 12 miles, and the other which extends from the exterior
limit of the first up to 200 nautical miles, measured in accordance with
the pertinent norms of International Law.
3. ...

12 Andrés Aramburú Menchaca, Historia de las 200 millas del mar territorial (Lima, 1954).

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4. Inside the limits of the adjacent zone to the first zone of 12 miles, vessels
and airships of any State, with maritime coasts or without it, enjoy the
freedom of free navigation and over-flight, subject to the pertinent regu-
lations of the coastal State relating to the preservation of the marine
environment, to the activities of exploration, exploitation and scientific
research which are performed in that zone, as well as the norms of secu-
rity of navigation and the marine transportation, all this in conformity to
International Law.

Vargas Carreño13 explains the contents of that Resolution:

Taking as a fact that the 200 miles of maritime jurisdiction is a reality

adopted by the majority of Latin-American States, the debates in the
Committee were based in the juridical nature of these maritime spaces
proclaimed or favoured by those States. While some members of the
Committee maintained the thesis of a territorial sea or a sea of full sover-
eignty of the coastal State in its 200 miles, others favoured a division of
this space into two zones: the first, properly of a territorial sea with a
maximum limit of 12 miles, and a second, an additional zone up to 200
miles, which could be qualified as a ‘patrimonial sea’ or ‘economic zone’,
over which the coastal State exercises its competences for purposes
related exclusively to the protection and exploitation of resources exist-
ing in that additional zone and in which the freedom of navigation and
over-flight has to be respected. The result of the harmonization of these
two opposing conceptions was the document in some aspects contradic-
tory and void of juridical precision.

Reasons for the 200 miles

It has been said that the ‘200 miles zone is a zone of ‘excessive’ sovereign rights
for a coastal State, or an ‘exacerbated extension’ of rights or also a ‘scandalous
zone’. It is necessary therefore to investigate the reasons that gave origin to
this extension. Colombos14 pointed out that “with the rapid progress of sci-
entific investigation and the adoption of the new and more efficient methods
of engineering, greater attention is being given to the best way of preserving

13 E. Vargas Carreño, América Latina y el Derecho del Mar (México: Fondo de Cultura
Económica, 1973), 43–44.
14 John Colombos, op. cit., 424–426.

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and developing the natural products of the sea in the general interest of man-
kind”. He recalled the recommendation adopted in 1937 by the Institute of
International Law, in the sense that the Governments of the interested States

should develop a study, by means of scientific research . . . of the problem

of the preservation of the wealth of the sea, and particularly of the marine
fauna, not only against the abuses resulting from the employment of
highly destructive methods and engines, but also practices harmful to sea
life . . . and the adoption without delay, of all such protective measures as
would appear justified, in the general interest, as a result of such a study.

Colombos also recalled the Report dated July 4, 1956 of the International Law
Commission, which drew attention to the fact that the

existing law on the subject, including the existing international agree-

ments, provide no adequate protection to marine fauna against extermi-
nation. The resulting position constitutes, in the first instance, a danger
to the food supply of the world. Also, in so far as it renders the coastal
State or the States directly interested helpless against wasteful and preda-
tory exploitation of fisheries by foreign nationals, it is productive friction
and constitutes an inducement to States to take unilateral action, which
at the present is probably illegal, of self-protection. Such inducement is
particularly strong in the case of the coastal State. Once such measures of
self-protection, in disregard of the law as it stands at present, have been
resorted to, there is a tendency to aggravate the position by measures
aiming at or resulting in the total exclusion of foreign nationals.

It is true that the same Declaration of Santiago gives a synthetic idea of the
basis of the 200 miles. Nevertheless, it is important to add that this distance
has not been determined arbitrarily, but has been the result of scientific con-
siderations. The Humboldt stream which flows alongside the coastal States
of the South Pacific is a special ecological zone. This cold stream is the center of
a great primary production and constitutes a relatively complex ecosystem. It
produces a geo biological relationship between the sea and the coast. On the
one hand, the low temperature of waters of the Humboldt stream prevents
clouds forming, which explains that almost the entire Peruvian coastal range
is a desert. Populations living on these lands are obliged to look for means of
subsistence in sea waters.
On the other hand, rivers descending from the Andes to the ocean deposit
in its waters mineral and organic materials which are dragged by erosion or

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winds and rains action. These materials come back to the surface because
waters are shallow as a consequence of different factors, such as winds that
displace waters from the surface and those materials are in contact with solar
energy. In this way the photo-synthesis is produced, which transforms into
phytoplankton zoo, whose growth is favoured by low water temperature. This
plankton is nourishment for small species of fish, which in turn is food for
more important species and so forth. In this way there is an inter-dependence
of different species of fish, the survival of some are dependent on the others.
However, there are other factors to remember. The Humboldt stream has
two phases: Spring-Summer and Autumn-Winter. In its first phase, the average
length of the stream reduces between 30 to 50 miles and the front of the equato-
rial waters increases up to 5 degrees south and more in certain cases, especially
when the ‘El Niño’ current takes place. During the second phase (Autumn-
Winter), the current expands notably. The outcrop increases and in some parts
of the sea it exceeds the limit of 200 miles, and such symptoms maintain a
safety barrier for tuna fish and other migratory species. This increase in the
different species of fish establishes an inter-dependence of marine resources,
which justifies the vital importance of fishing for the coastal population. The
breaking of this inter-dependence and of the ecological equilibrium would
adversely affect human beings and the economy of coastal States. That is the
reason why these States proclaim the protection and conservation of this mari-
time zone up to the limit of 200 miles.
From time immemorial, resources existing in adjacent seas have been con-
sidered to belong to inhabitants of coastal lands. At first, they found fishing for
their subsistence, and later, without disregarding this activity, they resorted to
exploration and exploitation of other resources, activities that for many popu-
lations are an irreplaceable source for living. From there arises the obligation
of States to preserve and protect those resources, a pressing need especially in
face of the present marvelous scientific and technological development.

The Modus Vivendi and the Declaration of Santiago

Relations between Ecuador and the United States suffered as a consequence

of the capture of three North-American fishing boats in May and June 1963
while performing fishing activities in Ecuadorian waters. The Californian tuna-
fish companies demanded the USA Government to take energetic measures
against Ecuador. This was the antecedent of the Modus Vivendi celebrated in
Quito and established in two memoranda dated 13 and 26 September 1963,
which were kept in secret and not published.

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The implementation of this instrument gave rise to serious public controver-

sies once the documents were considered by the Ecuadorian 1966–67 National
Constituent Assembly and the consequential press articles and commentaries.
The problem arose because the texts were not similar. But the main issue
was that Ecuador consented that US fishing vessels could perform their fishing
activities with the requisite of fishing licenses issued by Ecuadorian authori-
ties within a maritime zone of twelve miles measured from the baseline along
the coast, which implied that outside this baseline no license was required. The
US text explicitly mentioned the Galapagos archipelago while the Ecuadorean
text referred only to the “continental coast and adjacent isles”. There was also
a difference in relation to the tariffs applied to obtain fishing licenses, in vio-
lation of the existing Ecuadorian fishing law, as a consequence of which an
important loss was sustained in the fishing revenues for Ecuador.
This situation was considered by the Minister for Foreign Affairs of Ecuador
as affecting the obligations assumed by the State in the Declaration of Santiago.
The Consultative Board of the Ministry was requested to study the matter, and
once this board gave its opinion in favour of denouncing these documents,
the Minister proceeded (25 March 1966) in accordance. National and inter-
national media published the texts of the Modus Vivendi and the reasons on
which the Ecuadorean Government based its decision.

XIV Consultative Meeting of Ministers of Foreign Affairs:

Ecuadorian Claim Against the USA

While experts of Latin-American States were meeting in Lima discussing the

future action in relation to the then convened III U.N. Conference of the Law
of the Sea, and while in Colombo a meeting of the Consultative Asian-African
Legal Committee was taking place in order to also consider questions relating
to the law of the sea, a large US fishing fleet was present in Ecuadorian waters
with the obvious purpose of pressing the US authorities to take coercive mea-
sures against Ecuador.
As an antecedent of this situation, between 11 and 27 January 1971,
Ecuadorian Navy units captured 18 US fishing boats which were operating
in Ecuadorian waters disregarding any fishing without a fishing license. The
Secretary of State confirmed to the Ecuadorian Ambassador in Washington
D.C. the application of sanctions to Ecuador for the seizure of those fishing
boats. Ecuador asked the OAS to convene a Consultative Meeting of Foreign
Ministers.

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The Contributions of Latin America 169

This meeting—the XIV—took place in Washington on 30 January 1971. It

was recognized that both Governments had taken certain actions in relation
to this question, which included:

a) On the part of Ecuador, seizure, trial, the levying of fines and subsequent
release of foreign fishing boats operating within its territorial waters
without a license or registration issued by the Government of Ecuador in
accordance with the Ecuadorian law;
b) On the part of the United States, the suspension of military sales to Ecua-
dor pursuant to legislation of the United States relating to the capture or
North American fishing vessels and the announcement that it will con-
sider other legislative measures relating to the capture of fishing boats.

On the following day (31 January), the Meeting adopted a Resolution, of which
the two initial paragraphs reproduced the positions of Ecuador and the United
States. These positions were:

The position of Ecuador is that without violation of any rule of interna-

tional law whatsoever, and in the exercise of its sovereignty, it has fixed
the range of its territorial waters at 200 nautical miles and therefore,
according to Ecuadorian law, foreign boats may not fish within these 200
nautical miles without a license or registration issued by the Ecuadorian
Government.
The position of the United States of America is that under interna-
tional law coastal states’ exclusive fishing jurisdiction may not extend
more than 12 miles from their coasts.

The dispositive paragraphs stated:

1) To urge the parties to avoid the aggravation of their differences;

2) To urge the parties to use the quatripartite negotiations in which they
have shown special interest; and
3) To urge member states that in their mutual relations they strictly observe
the principles of the Charter of the Organization of American States and
abstain from the use of any kind of measure that might affect the sover-
eignty of states and the tranquility of the hemisphere.

In the negotiations referred in paragraph 2 the delegations of Chile, Ecuador,

Peru and the United States were the participants.

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170 Valencia-Rodríguez

This Resolution produced the suspension of sanctions against Ecuador and

the re-establishment of the atmosphere of calm and peace in the region. At the
same time, it was an implicit recognition of the rights of an American coastal
State in the adjacent sea.

Tripartite Conversations Before the 1958 Law of the Sea Conference

Some industrialized and maritime powers (United States, United Kingdom,

France, Italy, Netherlands) protested against the Declaration of Santiago. Once
the First United Nations on the Law of the Sea was convened in Geneva, the
three members of the Declaration of Santiago (Chile, Ecuador and Peru) held
conversations to coordinate their action in the coming Conference. In the final
act of these conversations, it read:

The three delegations agreed to point out the relation existing between
questions of liberty and right of fishing and conservations of living
resources and the question of the determination of the breath of territo-
rial sea. If in the next Conference the recognition of the special right
of the coastal State to the resources existing in the adjacent zone to
its territorial sea is admitted, and the consequent right to exploit, regu-
late and supervise fishing activities in that zone, there would not be
tactical interest in maintain open the discussion on the breath of the ter-
ritorial sea.

Paragraph 8 of this statement said:

The three delegations expressed its conformity with the convenience to

propose in Geneva, from the beginning as it was in The Hague in 1930,
to postpone the consideration of the breath of the territorial sea (arti-
cle 3) until the consideration of the liberty and the right of fishing, as well
as conservation, the contiguous zone and the continental shelf, has been
sufficiently progressed.

Another statement in the same direction said:

The three delegations expressed its conformity with respect the conve-
nience of proposing in the Geneva Conference to postpone the study
related to the breath of the territorial sea until the work of the Conference

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The Contributions of Latin America 171

has been sufficiently progressed in respect to questions of fishing, con-

servation of resources, adjacent zones and other similar questions.

Paragraph 9 of the act expressed:

The Governments of Chile, Ecuador and Peru should declare that, in

conformity with the ‘Principles of Mexico’, maintain the principle that
each State is competent to determine its territorial sea up to reasonable
limits according the geographic, geological and biological aspects, as
well as the economic necessities of their population and their security
and defence.

Commission on the Peaceful Uses of the Sea-Bed and Ocean Floor

Beyond the Limits of National Jurisdiction (Sea-Bed Committee)

The representative of Malta to the United Nations, Ambassador Arvid Pardo,

proposed in 1967 the inclusion in the Agenda of the XXII session of the General
Assembly of a subject called “The question of the exclusive reservation for
peaceful uses of the Sea-Bed and Ocean Floor, beneath the high seas, beyond
the limits of national jurisdiction, and the uses of its resources for the benefit
of mankind” The Assembly established the Sea-Bed Committee, for the pur-
pose of shaping and refining the ideas and concepts which were to form the
basis of a new international regime.
The General Assembly established in 1967 the Sea-Bed Committee with
35 members. On the following year, the Assembly received the report of the
Committee and decided to change the name this organ to a Commission with
the same purposes and determined its future work. The Commission was
established with 42 members. In 1973, the General Assembly decided to con-
vene the Third United Nations Conference on the Law of the Sea and increased
the membership of the Commission with 44 new members, and it remained
constituted with 85 members. It was also decided that this Commission will
perform the responsibilities of a Preparatory Committee for the forthcoming
Conference. Later, the Assembly increased the membership of the Commission
with 5 new members amounting to a total of 91 members. Seventeen Latin-
American States were members of the Commission: Argentina, Bolivia, Brazil,
Colombia, Chile, Ecuador, El Salvador, Guatemala, Guyana, Jamaica, Mexico,
Nicaragua, Panama, Peru, Trinidad and Tobago, Uruguay and Venezuela. The
Commission worked on the basis of consensus.

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172 Valencia-Rodríguez

The proposals presented by Latin-American States reflected the different

positions that they supported. Among these proposals, were the following:

1) The proposal submitted by Colombia, Mexico and Venezuela con-

tained the following chapters: Territorial Sea, Patrimonial Sea, Continen-
tal Shelf, High Seas, Regional Agreements. The breath of the territorial
sea may not exceed 12 nautical miles. The patrimonial sea may not exceed
200 miles.
2) The proposal submitted by Uruguay established that the coastal State
had the right to determine the limits of its territorial sea which may not
exceed 200 miles. Other articles followed the terminology of the 1958
Geneva Conference.
3) The proposal by Brazil established that the breath of the territorial in any
case sea may not exceed 200 miles.
4) The proposal by Argentina stated that the coastal State has the right to
fix the breath of the territorial sea up to the maximum distance of
12 miles. The coastal State has sovereign rights over a zone adjacent to the
territorial sea up to the distance of 200 miles, and those rights are appli-
cable over the natural resources, living and non living, renewable and
non renewable of such a zone.
5) The proposal submitted by Ecuador, Panama and Peru said that the sov-
ereignty of a coastal State extended to the adjacent sea up to limits not
exceeding 200 miles. This sovereignty is applicable also to the aerial
space over the adjacent sea, as well as the soil and subsoil of the latter.
This proposal was completed with provisions on baselines, navigation
regime, regulations for natural resources, pollution control, scientific
research, provisions for installations (artificial isles, submarine cables
and pipelines), regional and sub-regional regimes, land-locked States,
international sea, soil and subsoil of international sea.
6) The above mentioned proposal was completed by another one from the
same three States. It concerned fisheries in zones of national sovereignty
and jurisdiction. It stated that the coastal State has the power to promul-
gate legal provisions related to the management and exploitation of liv-
ing resources in the maritime zone of its sovereignty and jurisdiction,
especially with the purpose of securing the conservation and rational use
of such resources. This proposal referred also to fisheries in the interna-
tional sea.

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 PART 4
The Law of the Sea in Polar Regions

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 Chapter 12

Some Comments on the Whaling in the

Antarctic Judgment

Lilian del Castillo

On March 31 2014, the International Court of Justice decided on a judgment

that deserves support: the case of Whaling in the Antarctic (Australia v. Japan:
New Zealand intervening). The case dealt with the violation by Japan of the
1946 International Convention for the Regulation of Whaling (ICWR) inas-
much as, as alleged by Australia and New Zealand and decided upon by the
Court, Japan issued special permits for taking whales “for purposes of scientific
research” in the Southern Ocean, within the Japanese Whale Research Program
under Special Permit in the Antarctic Phase II (JARPA II), which was not actually
“a program for purposes of scientific research within the meaning of Article VIII
of the ICRW” [Judgment, para. 25], but, on the contrary, disguised commercial
whaling. The applicant requested that the Court declare the implementation
of the JARPA II program to be in violation not only of the ICRW but also of the
different provisions of the Schedule: (i) in relation to the zero catch limit of
whales for commercial purposes (para. 10 (e) of the Schedule); (ii) the com-
mercial whaling of fin whales in the Southern Ocean Sanctuary (para. 7 (b)
of the Schedule); (iii) the taking, killing or treating of whales, except Minke
whales, by factory ships (para. 10 (d) of the Schedule) and, (iv) the require-
ments of paragraph 30 of the Schedule.1 The Judgment agreed with the con-
tentions of Australia and the intervening party, New Zealand, and decided,
unanimously, “. . . that the special permits granted by Japan in connection with
JARPA II do not fall within the provisions of Article VIII, paragraph 1, of the
International Convention for the Regulation of Whaling.”
The operative part of the judgment ruled that Japan was in violation of
almost all of the provisions at stake, whether of the ICRW or the Schedule.

1 Paragraph 30 of the Schedule specifies that “30. A Contracting Government shall provide
the Secretary to the International Whaling Commission with proposed scientific permits
before they are issued and in sufficient time to allow the Scientific Committee to review
and comment on them. The proposed permits should specify: (a) objectives of the research;
(b) number, sex, size and stock of the animals to be taken; (c) opportunities for participation
in the research by scientists of other nations; and (d) possible effect on conservation of stock.”

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_013

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176 del castillo

The Court confirmed that “the special permits granted by Japan in connec-
tion with JARPA II do not fall within the provisions of Article VIII, paragraph 1,
of the International Convention for the Regulation of Whaling” (operative
paragraph 2); that in granting “special permits to kill, take and treat fin,
humpback and Antarctic Minke whales in pursuance of JARPA II, [Japan]
has not acted in conformity with its obligations under paragraph 10 (e) of the
Schedule,” (operative paragraph 3); that by “killing, taking and treating fin
whales in pursuance of JARPA II” Japan did not fulfill its obligation under para-
graph 10 (d) of the Schedule (operative paragraph 4); and that Japan by “killing,
taking and treating of fin whales in the “Southern Ocean Sanctuary” in pursu-
ance of JARPA II” violated its obligations under paragraph 7 (b) of the Schedule
(operative paragraph 5). In contrast, the Court found that Japan had fulfilled
its obligations under paragraph 30 of the Schedule in relation to the JARPA II
program (operative paragraph 6). Regarding this point, it is relevant to men-
tion the dissenting opinion of Judge Julia Sebutinde, who found that ‘the facts
before the Court do not bear out this conclusion.”2 On the same track, Judge
Greenwood, even if voting in favor of the Court’s findings in operative para-
graph 6, clarified in his Separate Opinion that the duty to provide information
“means that a State is not free to adopt a formalistic approach to paragraph 30”
and expressed that “[I]t must, therefore, be open to question whether there
has been a full compliance with the duty of co-operation.”3
Even if no objection should be raised to sharing the findings of the Court,
there are two points in respect of which some observations will be made,
namely, (a) The opportunity to resort to UNCLOS and other legal regimes for
the interpretation of the ICRW’s provisions, and (b) The acquiescence to rec-
ognize the Southern Ocean. The background about the whaling regime estab-
lished in the 1946 Convention and its implementation will be referred to in
advance.

The Conventional Whaling Regime

The International Convention for the Regulation of Whaling (ICRW)

The ICRW was adopted in 1946 by a group of States involved in whaling activi-
ties and interested in whale commercial exploitation and regulation. Many
cetaceans, including dolphins, were included in the list of species regulated
therein. The objective of the Convention was not to ban the commercial

2 Separate Opinion of Judge Sebutinde, para. 1 in fine.

3 Separate Opinion of Judge Greenwood, para. 31.

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some comments on the whaling in the antarctic judgment 177

hunting of whales but to regulate it, establishing catch limitations for certain
species, some of them, with an estimate of 97% reduction of the original popu-
lation, on the verge of extinction as is the case of the blue whale, the largest
living species.4 Commercial whaling, specially targeted at the production of
whale oil, profited from technological advances in the first decades of the past
century, which led to a predatory increase of the activity. In 1930–31, at the
peak of whale hunting, the whale oil reached an annual production of three
and a half million barrels.5
A first draft Convention for the Regulation of Whaling was adopted in 1931,
and entered into force in 1935.6 Due to their oceanwide distribution, whales
are hunted in all the oceans, including the Arctic Ocean and the Southern
Ocean around the Antarctic Continent. For this reason the Convention was
applicable worldwide (Article 9). However, even if ratified by eighteen States, it
was not effective. In 19377 another International Agreement for the Regulation
of Whaling was adopted in London, with additional protocols incorporated in
1938, 1944, 19458 and 1946.9 At the same time, new negotiations were carried out
and on December 2, 1946, the International Convention for the Regulation of
Whaling was adopted at Washington, DC, and entered into force in 1948.10 The
Convention (the ICRW or the Convention) was signed by Argentina, Australia,
Brazil, Canada, Chile, Denmark, France, Japan, Mexico, The Netherlands, New
Zealand, Norway, Peru, South Africa, U.K., former U.R.S.S. and the USA11 and is
open to adherence by other States. Its current membership is of 88 member
countries.
The Convention applies to all waters and ‘to factory ships, land stations,
and whale catchers under the jurisdiction of the Contracting Governments’
(Article I). Its object and purpose is ‘to provide for the proper conservation of
whale stocks and thus make possible the orderly development of the whaling
industry,’ taking into consideration ‘the interests of the consumers of whale

4 Daniel Bodansky, Jutta Brunnée & Ellen Hey, The Oxford Handbook of International
Environmental Law (Oxford: Oxford University Press, 2007), 61.
5 Patricia W. Birnie, International Regulation of Whaling: From Conservation of Whaling
to Conservation of Whales and Regulation of Whale Watching (New York: Oceana, 1985),
vol. I, 109–118.
6 Text in 155 LNTS 349.
7 Text in 190 LNTS 79.
8 Text in 148 UNTS 1143.
9 Patricia W. Birnie & A. Boyle, International Law and the Environment. Basic Documents
(Oxford: Oxford University Press, 1995), 586–587.
10 Text in 161 UNTS 143.
11 Birnie & Boyle, op. cit., 587–611.

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178 del castillo

products and the whaling industry’ (Article V.2.(d)). To implement its regula-
tory task the Convention set up the International Whaling Commission (the
IWC or the Commission) (Article III.1), with the capacity to amend the Schedule
of Regulations, which is an integral part therein, and contains the tech-
nical definitions of whaling activities, tables of stocks and whaling permits
(Article V.1). The Schedule is the dynamic operative instrument of the IWC
and has already introduced a number of significant amendments. Throughout
its first three decades of existence, although it aims to maintain the whale
stocks, the Commission construed the Convention as a fishing organization
and inconsistently authorized high catch numbers, using blue whales as units.

The Increasing Concern for the Conservation of Marine Living

Resources
After the entry into force of the Convention, in 1948, important legal devel-
opments introduced demands for environmental protection which were her-
alded in different legal instruments, either establishing general principles, like
the 1972 Stockholm Conference on the Human Environment and its many
subsequent developments or obligations on States, such as the binding 1973
Convention on International Trade in Endangered Species (CITES) and in a
number of provisions of the 1982 United Nations Convention for the Law of
the Sea (UNCLOS).
The 1973 Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES), in Appendix I included Cetacea, dolphins, porpoises
and whales in the list of the most endangered species threatened with extinc-
tion, and “prohibits international trade in specimens of these species except
when the purpose of the import is not commercial”.
The 1979 Bonn Convention on Migratory Species (CMS) listed different
Cetacean, including whales, dolphins and porpoises, in Appendix I, which
enumerates Endangered Migratory Species. In 1982, the Convention on the
Law of the Sea, in force since 1994, established the duty of States to adopt
measures and cooperate with appropriate international organizations for the
conservation and management of marine mammals and cetaceans both in
the Exclusive Economic Zone (Article 65) and in the High Seas (Article 120).
In 1992, the Convention on Biological Diversity (CBD) prescribed that all States
should share the benefits of biodiversity, however, the continuous predation
of cetaceans prevents non-whaling countries from sharing a natural resource
common to all nations.
Other conventions, either general or regional, have dealt with the obliga-
tions of States to ensure the protection of the marine environment and its liv-
ing resources. Some of those treaties regulate activities in Antarctica and its
surrounding waters.

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some comments on the whaling in the antarctic judgment 179

The Commercial Whaling Moratorium

In 1972, the Stockholm Conference on the Human Environment requested
the Commission to adopt a ten-year moratorium on commercial whaling,
but the request of a general moratorium was not accepted by the IWC, neither
at that time nor in the following years. In 1976, however, a selective moratorium
was established by the New Management Procedure, which was based on the
estimated Maximum Sustainable Yield for the different stocks. Additionally,
some of the original whaling Members which had become non-whaling States
and the new non-whaling membership overrode the steady opposition of the
remaining whaling States to approve the overall moratorium in 1982, to be
implemented gradually as from 1985. Since then, the moratorium has been
challenged but it has remained in force due to a failure to obtain the ¾ major-
ity that is required to abolish it.12
For more than sixty years of its implementation, the Convention meetings
have been the sounding board for the changes in a new approach for the con-
servation of nature and the development of new materials. In fact, the oil and
other goods on which the whaling industry once based its importance have
been replaced by other products, and whaling has become an unnecessary
exercise of cetaceans’ exploitation. However, even if there is no reliable data
revealing an increase in the different whale stocks, the wave against the mora-
torium has not diminished within the IWC. In 1996 Japan and Norway notified
the IWC that they would continue with scientific whaling and, additionally, the
Annex was modified to include small cetaceans. Meanwhile, since the 61st
session in 2009, the United States, the Russian Federation, Denmark and
St. Vincent and the Grenadines have obtained quotas for native cetaceans.13

Exceptions to the Commercial Moratorium

The moratorium was an absolute ban for commercial whaling, but it
included exceptions for non commercial whaling, or a way out clause. Those
exceptions are detailed below.

Whales for Human Consumption

The exception to commercial whaling was the consumption of whale meat,
which is an appreciated dish among Arctic populations who wish to preserve
traditional hunting practices, and in some countries like Japan. Member States
have been divided between the conservationist trend, which is the task of the

12 IWC Resolutions on http://iwc.int/resolutions.

13 Jean-Pierre Beurier & Alexandre Kiss, Droit International de l’Environment (Paris: Pedone,
2010), 379.

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180 del castillo

Conservation Committee, and the exploitation demands.14 Despite the conser-

vation efforts of some members, some populations continue to diminish, as is
recorded in the reports of the Convention’s Scientific Committee, addressing
the status of many cetaceans. The ‘vaquita’ of the Gulf of California, Mexico,
with only about 150 animals remaining, is one of those endangered species
threatened with extinction. The same is taking place in the case of the Boto,
hunted without restriction in Brazil, Colombia, Peru and Venezuela and the
Dall’s porpoise off the coasts of Japan.15

Whales Taking for Purposes of Scientific Research

Although the 1982 moratorium suspended commercial whaling, the Convention
makes an exception for research programs including lethal methodologies,
which are excluded from the moratorium because they are not granted by the
Commission but by the Governments themselves (Article VIII.1). Those special
whaling permits for research programs, carried out by Norway and Iceland and
other Member States, exceed the 1,000 whales yearly, even if they are strongly
resisted by non-whaling Members. They argue that it is not necessary to carry
out lethal research, which is an euphemism to authorize the whaling of one
thousand whales for that purpose. Moreover, there is an intense non-lethal
research activity on cetaceans, i.e. in the South Atlantic off the American and
African coasts, whose reports reach the public through conferences and their
publication in scientific journals. Argentina, Brazil and South Africa carry out
research programs on cetaceans using exclusively non-lethal methodologies.
Thus, the needs for lethal-research lack foundation.

Whales Sanctuaries16
The Commission is entitled to adopt regulations ‘with respect to the con-
servation and utilization of whale resources’ and to that end fix ‘open and
closed waters, including the designation of sanctuary areas’ (Article V.1 (c)).
Sanctuaries are zones of total prohibition of whaling, where the species
are protected against the threat they are exposed to when they leave the
Exclusive Economic Zones (EEZ) of States, affecting the sustainable use

14 Patricia Birnie, “International Legal Issues in the Management and Protection of the
Whale: A Review of Four Decades of Experience”, 29 N R J 903 (1989): 916.
15 Anthony D’Amato & Sudhir K. Chopra, “Whales: Their Emerging Right to Life”, 85 A JIL 21
(1991).
16 Judith Berger-Eforo, “Sanctuary for the Whales: Will This Be the Demise of the Inter-
national Whaling Commission or a Viable Strategy for the Twenty-First Century?”, 8 Pace
Int’l L. Rev. 439 (1996). Available at: http://digitalcommons.pace.edu/pilr/vol8/iss2/5.

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some comments on the whaling in the antarctic judgment 181

coastal States can make of this resource through whale-watching and tourism.17
There are two whale ‘sanctuaries’ that have already been established by the
Commissions, the sanctuary in the Indian Ocean, adopted in 1979 follow-
ing the proposal by the Government of Seychelles, and renewed indefinitely
since 1992; and “The Southern Ocean Sanctuary”, in force since 1994, proposed
in 1992 by the French Government for the ocean waters south of the Antarctic
Convergence, and renewable every ten years. In 1998 Brazil proposed the cre-
ation of a third Whale Sanctuary in the South Atlantic Ocean, from 0º to 40º
South latitude, where it borders the Southern Ocean Sanctuary, eagerly sup-
ported by Argentina and South Africa.
The initiative had a growing support of other IWC members and in 2005
was submitted to the IWC in a revised version. The establishment of a South
Atlantic Whale Sanctuary would discourage the possibility of resuming com-
mercial whaling, and it is important not only for the region but for all the
IWC members struggling for the sound management of ocean mammals and
placing their protection as a priority because of their difficult recovery. The
project was neither approved in 2005 nor in 2012. In fact, the proposal was
submitted by Argentina, Brazil, South Africa and Uruguay to the 64th session
of the IWC, held in Panamá on July 2–6, 2012, but even if 38 Members voted
for the affirmative, 21 voted against, 19 parties could not vote, 8 were absent
and there were 2 abstentions, thus the three quarters majority of the present
88 Members was not achieved.18
The positions of Japan, Iceland and Norway were immovable and inflexible
regarding the support to lethal research methods and the objection (the way-
out clause) of the decisions about moratoria and non commercial exploitation
of cetaceans.19 Also in that session Monaco proposed that regarding ceta-
ceans migrating from the high seas to EEZs and territorial waters, its regula-
tion exceeded the competence of the IWC to the larger scenario of the United
Nations and its specialized organizations. This initiative was supported by
Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, México and Panama
but opposed by China, Grenade, Iceland, Japan, Norway, Tanzania, Palau and
Antigua-Barbuda. The draft resolution was not approved but it will be dealt
with by an informal group during the interval until the next session, to be held

17 Malgosia Fitzmaurice, David M. Ong & Panos Merkouris, Research Handbook on

International Environmental Law (London: Edward Elgar, 2010), 126.
18 Annual Report of the International Whaling Commission 2012, 64th Annual Meeting,
Panamá, 2012, 9. See at https://archive.iwc.int.
19 Rüdiger Wolfrum, “Means of Ensuring Compliance with and Enforcement of International
Environmental Law”, 272 RdC (1998): 110–118.

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in two years because, for the benefit of whaling supporting countries, the 64th
session was the last to be held annually.20
In 1998 the governments of Australia and New Zealand proposed the dis-
cussion of a South Pacific Whale Sanctuary; however, it was never approved.
At present, whale watching has grown as an incentive for tourism, and it is
certainly a growing activity off the coast of Patagonia, Argentina, where the
Southern Right Whale (Eubalaena australis) was declared a natural monument
in 1984 (Statute No. 23,094) and it enjoys absolute protection in national juris-
dictional waters. In 2008, Brazil also declared its jurisdictional waters a Whales
and Dolphins Sanctuary for the protection and preservation of Cetaceans
(Presidential Decree No. 6,698).
Whales are not a national but an internationally shared resource, and as
such they are the concern of all countries. The IWC is a clear example of the
conflicts of interests involved in the shared management of natural resources,
and the difficulties of sharing, which implies considering not only one’s own
but others’ demands as well. Shared management of natural resources entails
the clash between different national perspectives.

The Concurrent Antarctic Regime

The Antarctic Treaty and the Protocol on Environmental Protection

In 1959, the adoption of the Antarctic Treaty started a new regime for Antarctica,
comprising the land, islands, ice cap and the sea surrounding the Antarctic
Continent.21 The Parties to this case were the original signatories of the Treaty,
which came into force on June 23, 1961, and as of 2014 it comprises fifty mem-
bers, not all of which are Consultative Parties. After 1961, other conventions
were agreed upon by the Parties to the Antarctic Treaty, which for that reason
established what is known as the Antarctic System. In 1972 the Convention
for the Conservation of Antarctic Seals (CCAS) was signed in London, and
in 1980 the Convention on the Conservation of Antarctic Marine Living
Resources (CCAMLR) was adopted in Canberra. Meanwhile, the Consultative

20 Thomas Pailloux, “Pêche”, Annuaire du Droit de la Mer 2012, Tome XVII (Paris: Pedone,
2013), 534–537.
21 Signed at Washington, December 1, 1959, by Argentina, Australia, Belgium, Chile, France,
Japan, New Zealand, Norway, South Africa, the Union of Soviet Socialist Republics, the
United Kingdom of Great Britain and Northern Ireland, and the United States of America,
402 UNTS 71ff, see: http://www.ats.aq/documents/ats/treaty_original.pdf.

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Parties approved in the 1966 Santiago Meeting the Agreed Measures for the
Conservation of Antarctic Fauna and Flora (Recommendation III–VIII), in
force since November 1, 1982, requesting that Members enforce limitation of
permits to take native mammals and birds.
Nonetheless, with environmental demands emerging, the Antarctic
Treaty members displayed a stronger commitment and drafted the Protocol
on Environmental Protection to the Antarctic Treaty, which was adopted at
the Madrid Meeting of Consultative Parties on October 4, 1991. At the same
Meeting, four annexes to the Protocol were approved, the Second dealing with
the Conservation of Antarctic Fauna and Flora. The Protocol and Annexes I–IV
entered into force on January 14, 1998.

Annex II on the Conservation of Antarctic Fauna and Flora

Annex II contains provisions on mammals, defining ‘native mammal’ as
“any member of any species belonging to the Class Mammalia, indigenous
to the Antarctic Treaty area or occurring there seasonally through natural
migrations”(paragraph (a)): stating that ‘take’ or ‘taking’ means to kill, injure,
capture, handle or molest, a native mammal or bird, or to remove or damage
such quantities of native plants that their local distribution or abundance would
be significantly affected”(paragraph g): and that “International Convention for
the Regulation of Whaling” means the Convention done at Washington on
2 December 1946” (paragraph i). Hence, it is clear that the Protocol is appli-
cable to whales, not alternatively to but concurring with the ICRW, in the
Antarctic or Southern Ocean. The Annex adds that “Taking or harmful interfer-
ence shall be prohibited, except in accordance with a permit” (Article 3.1), and
those permits should specify “when, where and by whom it is to be conducted.”
Moreover, the Annex establishes the specific circumstances under which
the issue of permits should be allowed, namely: “(a) to provide specimens for
scientific study or scientific information; (b) to provide specimens for muse-
ums, herbaria, zoological and botanical gardens, or other educational of cul-
tural institutions or uses,” or, finally, for unavoidable consequences of scientific
activities not authorized by the previous paragraphs (Article 3.2). To streamline
the limitations for taking mammals, the provision clarifies that “(a) no more
native mammals, birds, or plants are taken than are strictly necessary to meet
the purposes set forth in paragraph 2 above” and goes on to state that “(b) only
small numbers of native mammals or birds are killed . . .” (Article 3.3). Among
other provisions equally limiting the issuing of permits for taking mammals,
the Protocol asserts that in the case of Specially Protected Species, not includ-
ing mammals, only permits using non-lethal techniques where appropriate

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shall be issued (Article 3.5) and that, if taking permits are issued, those
takings “shall be done in the manner that involves the least degree of pain and
suffering practicable” (Article 3.6).
From the above provisions of the Protocol the following consequences may
be deduced: (a) The Protocol is applicable to whaling activities in Antarctic
waters; (b) The Protocol expressly takes into account the provisions of the
ICRW, which includes the decisions adopted by the Treaty organs for the oper-
ation of the Treaty; (c) The Protocol limits the issuing of permits for “scien-
tific activities” to those takings that are strictly necessary, and in small number
(Article 3.3); (d) The Protocol bans the issuance of permits “for purposes of
scientific research” for large numbers of whales and without confirming non-
lethal techniques where unavoidable.
Together with the moratorium, the provisions of the Protocol impose severe
limitations to issuing permits “for purposes of scientific research.” The Protocol
is a treaty in force as is the ICRW and is equally binding for all the parties
in the case. It complements the ICRW on the conditions for issuing permits
“for the purpose of scientific research” for States Parties to both regimes, as in
the present case.

The Inevitable Application of the 1969 Vienna Convention on the

Law of Treaties

The Court, in order to reach its decision in the Whaling in the Antarctic case,
narrowed its focus on the interpretation of Article VIII, paragraph 1, of the
ICRW. Is it the ICRW a self-sufficient regime and Article VIII an autonomous
provision? Should the Court have applied the articles of UNCLOS on marine
mammals in its interpretation of Article VIII.1 of the ICRW? For its interpretive
task, the Court relied on the general rule of Article 31 of the Vienna Convention
on the Law of Treaties (the Vienna Convention or VCLT).
The Court, no doubt, considered the 1969 Vienna Convention on the Law
of Treaties (VCLT) applicable to the interpretation of Article VIII of the ICRW,
even if the Vienna Convention is a subsequent treaty with regard to the
ICRW. When the Court turns to examine in the first place “The issues concern-
ing the interpretation and application of Article VIII of the Convention . . .”
because they are “central to the present case,”22 it invokes article 31 of the
Vienna Convention on the Law of Treaties (para. 79), a Convention subsequent
to the ICRW. However, it is coherent because the Court had expressed in former

22 Whaling in Antarctica, Judgment, March 31 (2014), para. 50.

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some comments on the whaling in the antarctic judgment 185

cases that the Vienna Convention reflects customary international law.23

Also, when the Court asserted that the resolutions of the International Whaling
Commission (IWC) rejecting lethal methods were not binding upon Japan
because they had been adopted without its concurrence, and that, for that rea-
son, they did not constitute a subsequent practice between the parties regard-
ing the interpretation of the Convention (para. 83), it relies on Article 31. 3(a)
and (b) of the VCLT. The case law of the Court reinforced the applicability of
Article 31 to treaties previous to the entry into force of the 1969 Convention,24
not only the general rule of interpretation contained in Article 31 (1)25 but also
specific rules including paragraphs 31.326 and 31.3 (c).27

Article VIII of the ICRW prescribes in paragraph 1 that,

Notwithstanding anything contained in this Convention any Contracting

Government may grant to any of its nationals a special permit authoriz-
ing that national to kill, take and treat whales for purposes of scientific
research subject to such restrictions as to number and subject to such
other conditions as the Contracting Government thinks fit, and the kill-
ing, taking, and treating of whales in accordance with the provisions of
this Article shall be exempt from the operation of this Convention. Each
Contracting Government shall report at once to the Commission all such
authorizations which it has granted. Each Contracting Government may
at any time revoke any such special permit which it has granted.

Thus, the Court construed that permits granted by Governments ‘for purposes
of scientific research’ and for that reason exempt from the operation of the
Convention, are ‘not subject to the obligations under the Schedule concern-
ing the moratorium on the catching of whales for commercial purposes, the
prohibition of commercial whaling in the Southern Ocean Sanctuary and
the moratorium relating to factory ships’ (para. 55). Then, reading Article VIII
in the light of the object and purpose of the Convention, the Court underlines
that ‘ensuring the conservation of all species of whales while allowing for their
sustainable exploitation’ is the purpose of the Convention (para. 56).

23 See Arbitral Award of 31 July 1989, Judgment (1991), para. 48.

24 Land, island and maritime boundary dispute (El Salvador v Honduras) (1992), para. 373.
25 Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) 2009,
para. 47; Pulp Mills on the River Uruguay (Argentina v Uruguay) (2010), para. 65.
26 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia) (2002), para. 37.
27 Oil Platforms (Iran v United States) Merits (2003), para. 41.

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Additionally to the VCLT, in other cases the Court had been receptive to
invoke in support of its reasoning even non binding instruments under the
presumption that they enjoy general acceptance by the international commu-
nity, i.e., the Draft Articles on the Responsibility of States for Internationally
Wrongful Acts, a set of provisions of progressive development and codification
of general international law.28

The Concurrent Application of UNCLOS on the Interpretation

of the ICRW

Notwithstanding the undisputed applicability of the general rule of interpre-

tation established by the VCLT to the interpretation of the provisions of the
ICRW, it cannot be denied that other general conventions were also relevant
to the instant case, and that their application was also part of the rule of inter-
pretation of the treaties. Thus, Article 31. 3 (c) of the VCLT states that for the
interpretation of a treaty “There shall be taken into account, together with
the context: [. . .] (c) any relevant rules of international law applicable in the
relations between the parties.”
In this respect, it must not be disregarded that the activity addressed by the
ICRW is, and could only be, exercised at sea. Even if at the time of the adop-
tion of the ICRW29 there was not a conventional comprehensive regime for
the world oceans, nowadays the situation has changed. The worldwide binding
United Nations Convention on the Law of the Sea (UNCLOS), adopted in 1983,
has been in force since 1994. It is then reasonable to deduce that, even if it was
from the perspective of the Court an encapsulated question embedded in the
interpretation of treaties, the existing law of the sea is a ‘relevant rule appli-
cable in the relation between the parties,’ all the more so if it contains specific

28 Jurisdictional Immunities of the State (Germany v. Italy), Judgment of 3 February 2012, on

the applicability of Article 30 (a) of the International Law Commission’s Articles on the
responsibility of States for internationally wrongful acts, paras. 15,58.137; Application of
the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of Macedonia v.
Greece), Judgment of 5 December 2011, para. 164; Pulp Mills on the River Uruguay
(Argentina v. Uruguay), Judgment of 20 April 2010, on the applicability of Articles 34 to
37 of the Draft Articles, para. 273; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic
Republic of the Congo); Judgment of 19 June 2012, on the applicability of Article 36 of
the Draft Articles, para. 49: cfr. Responsibility of States for internationally wrongful acts.
Compilation of decisions of international courts, tribunals and other bodies. Report of the
Secretary-General. UNGA A/68/72, 30 April 2013, 20, 23, 27, 30, 31, 43.
29 The Convention was adopted on December 2, 1946, at Washington D.C., 161 UNTS 143.

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some comments on the whaling in the antarctic judgment 187

provisions on mammals. UNCLOS has a particular character, merging the cus-

tomary law of the sea with the progressive development that was the result of
the exhaustive discussion taking place during the nine years of drafting of its
provisions during the Third Conference of the Law of the Sea. The Convention
concluded in a Package Deal, and for that reason it became not only the gen-
eral opinio iuris on the law of the sea, but the opinio obligationis conventionalis30
of the international community on that province of international law.
All the parties to the present case, Australia, Japan and New Zealand, are
parties to the UNCLOS, which is the mandatory rule for the law of the sea not
only for the parties but for the international community as a whole. This asser-
tion is recognized by the substantive practice of States, by international case
law and by the doctrine in the field, which highlights that UNCLOS is ‘the con-
stitution of the oceans,’31 comprising all the activities developed at sea and
establishing the rules for the governance of the sea.32 It may also be argued
that according to the Court, “the compatibility of an act with international law
can be determined only by reference to the law in force at the time when the
act occurred”.33 The activities for the purpose of scientific research under
the Program JARPA II are acts performed under the ICRW and the general
framework of UNCLOS.
The ICRW applies to those subjects involved in whaling activities in “fac-
tory ships, land stations, and whale catchers under the jurisdiction of the
Contracting Governments” and “to all waters in which whaling is prosecuted
by such factory ships, land stations, and whale catchers” (Article I,2). The
Convention addresses the activity of whaling and the geographical ambit in
which whaling takes place, the ocean waters. In 1946 there were no interna-
tional conventions on the law of the sea and the customary rule regulating the
jurisdiction of States dealt with the territorial sea, the contiguous zone and
the high seas. Whaling happened in the high seas, a space characterized by
four freedoms and no national jurisdictions, only the surveillance capacity of
war ships. But since 1946, the international community has undergone many
changes, and the ICRW has evolved accordingly, mainly through the decisions

30 Tiago Vinicius Zanella, Curso do Direito do Mar (Curitiba: Juruá, 2013) 357–359.
31 Tommy Koh, “Célébration du Trentième Anniversaire de l’overture à la signature de la
Convention des Nations Unies sur le Droit de la Mer”, Annuaire du droit de la mer, vol. 17
(Paris: Institut du Droit Économique de la Mer/Pedone, 2012) 15–18.
32 Bernard H. Oxman, “La Convention des Nations Unies sur le droit de la mer: Une con-
stitution pour les océans”, Annuaire du droit de la mer, vol. 17 (Paris: Institut du Droit
Économique de la Mer/Pedone, 2012) 25–29.
33 Jurisdictional Immunities of the State (Germany v. Italy) para. 58.

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188 del castillo

adopted by its own body, the International Whaling Commission and by the
successive amendments of the Schedule.34
Moreover, UNCLOS includes special provisions on mammals applicable
to all the species of mammals, and cetaceans are specifically included in the
Annex of the Convention. It is also worth recalling that the large majority of
members of the ICRW are parties to UNCLOS and were parties to the drafting
of the Third United Nations Conference on the Law of the Sea. Accordingly,
the articulated operation of both regimes should be presumed. Article 65 of
UNCLOS establishes the duty of States to “cooperate with a view to the con-
servation of marine mammals” in the Exclusive Economic Zone (EEZ) and
particularly in the case of cetaceans “through the appropriate international
organizations for their conservation, management and study.” Article 120, on
the other hand, extends the application of the duty of conservation and man-
agement of marine mammals to the high seas. The duty of cooperation for
the conservation of mammals that these provisions imposed on States were
welcome by the specialized doctrine because it was understood that they defi-
nitely applied to all States involved in whaling, not only to the members of the
ICRW, and celebrated that since the entry into force of the UNCLOS, mam-
mals “are thus, for the first time, fully protected in a UN Convention.”35 The fact
that the ICRW is not a UN convention prevents the cooperation with the UN
specialized organs and the participation in UN programs.36
Since then, a different legal structure was established for the world oceans,
or the single world ocean, insofar as all the oceans have received differ-
ent names but are connected and form a single salty water body, at present
regulated by the United Nations Convention on the Law of the Sea. UNCLOS
excludes nothing from its object, and recognizes rights, jurisdictions and free-
doms (UNCLOS, Article 300). The ‘waters’ referred to in Article I.2 of the ICRW
are regulated with new constraints and responsibilities particularly regarding
pollution, marine ecosystems and protection of species.
UNCLOS has rules for the protection of the living species, both in the EEZ
and in the High Seas, and marine mammals are expressly included in those

34 The last one being approved at the 64th session, held in Panamá in July 2012, see: iwc.int/
private/downloads/1lv6fvjz06f48wc44w4s4w8gs/Schedule-February-2013.pdf.
35 Patricia Birnie, Alan Boyle & Catherine Redgwell, eds., International Law & the
Environment (Oxford: Oxford University Press, 2009) 724.
36 FAO statistics and some FAO programmes include mammals, e.g., “Capacity Building for an
Ecosystem Approach: Considering Interactions, including with Marine Mammals” (GCP /
INT/920/JPN).

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some comments on the whaling in the antarctic judgment 189

chapters (Articles 65 and 120). Regarding highly migratory species, UNCLOS

establishes that States whose nationals are engaged in the exploitation of
the species listed in Annex I, which includes dolphins and cetaceans, should
co-operate for ensuring conservation and promoting optimum utilization of
those species (Article 64).
The applicability of UNCLOS and especially of Article 64 was argued
by the representative of New Zealand when answering the questions from the
bench.37 Judge Cançado Trindade considered that not only UNCLOS but also
other conventions adopted subsequent to the ICRW, e.g., the 1973 Convention
on International Trade in Endangered Species of Wild Fauna and Flora (CITES
Convention), the 1979 Convention on Migratory Species of Wild Animals, the
1980 Convention on the Conservation of Antarctic Marine Living Resources and
the 1992 U.N. Convention on Biological Diversity (CBD Convention), should be
taken into account in the interpretation and application of the ICRW because
they show a consistent evolution and “have helped to identify the wide range
of matters of concern to the international community as a whole, such as the
protection of wild fauna and flora.”38

Concluding Comment on the Interpretation of Article VIII of

the ICRW

The reasoning of the Court is flawless and its findings, with one minor excep-
tion, the correct interpretation of Article VIII of the ICRW. It is not in detri-
ment of the judgment to discuss that the Antarctic whaling scenario is more
substantial than the sole ICRW, and that other legal regimes are equally bind-
ing for the same Parties and would support the findings of the Court.
Interpretation, the interpretive exercise, central to the jurisdictional func-
tion, is a matter of ‘indeterminacy,’ being both linguistic and substantive, fol-
lowing the inspired description of professor James Crawford in his 2013 General
Course at The Hague Academy of International Law.39 Interpretation cannot
be enclosed in a single provision or in a single convention if other regimes are
equally in force for the same matter. International law being a self-contained
comprehensive universe built on different layers, isolating those layers does

37 Separate opinion of Judge Antônio Cançado Trindade, para. 9.

38 Id., para. 26.
39 James Crawford, Chance, Order, Change: The Course of International Law (The Hague:
Hague Academy of International Law, 2014) 147–161.

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190 del castillo

not help the interaction of these rules. Concurrent regimes should be jointly
construed in order to reinforce their mutual competence. The overspecial-
ization of subjects undermines the efficiency of each regime, and the effort
should be driven towards the articulation of overlying regimes complementing
one another.

The Southern Ocean: The Fifth Ocean? A Collateral Effect

The International Hydrographic Organization, the authoritative organization

in charge of the description of the world oceans and seas, defined the Southern
Ocean in its first (1929) and second (1937) editions of the Special Publication
S-23, Limits of Oceans and Seas. However, in its third and current edition
(1953)40 it recorded that the Antarctic or Southern Ocean had been omitted
because most of the opinions expressed after the publication of the second
edition, in 1937, considered that there were no real justifications for giving
the name of Ocean to the maritime zone whose septentrional limits were dif-
ficult to establish as they changed according to the seasons. For this reason,
the Organization expanded to the South the limits of the Atlantic, Pacific and
Indian Oceans until they reach the Antarctic Continent. However, in the new
draft of publication S-23 that was circulated among the member States but has
not yet been approved, the Southern Ocean becomes the fifth ocean, keeping
the limit of 60° S. This limit would not be a physical but a conventional limit.
In fact, the physical limit for the waters surrounding the Antarctic Continent
is determined by the boundaries of the Antarctic Circumpolar Current (ACC),
known as the Antarctic Convergence, the large area separating Antarctic waters
from other ocean waters. It is worth mentioning in this regard the Convention
on the Conservation of Antarctic Marine Living Resources (CCAMLR), adopted
in Canberra on May 20, 1980.41 CCAMLR defines the ambit of application of
the Convention from the point of view of the Antarctic marine ecosystem,
stating that it applies “to the Antarctic marine living resources of the area
south of 60° South latitude and to the Antarctic marine living resources of the
area between that latitude and the Antarctic Convergence which form part of
the Antarctic marine ecosystem” (Article I.1). In order to define the lines for the
application of the Convention, it adds that “The Antarctic Convergence shall
be deemed to be a line joining the following points along parallels of latitude

40 International Hydrographic Organization, Limites des Océans et des Mers (Publication

Spécial No. 23, S-23) 3rd ed., 1953, Imprente Monégasque, Monte Carlo, 4.
41 See text in: https://www.ccamlr.org/en/system/files/e-pt1.pdf.

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some comments on the whaling in the antarctic judgment 191

and meridians of longitude: 50°S, 0°; 50°S, 30°E; 45°S, 30°E; 45°S, 80°E; 55°S,
80°E; 55°S, 150°E; 60°S, 150°E; 60°S, 50°W; 50°S, 50°W; 50°S, 0°” (Article I.4).
Then, the Antarctic Convergence expands in some areas up to 45° S latitude,
meaning fifteen degrees north of the 60°S established by the Antarctic Treaty
regime, adopting an ecosystem criterion. The CCAMLR applies to a larger zone
than the 60°S, not in coincidence with the Antarctic Treaty.
On the other hand, the 1972 Convention for the Conservation of Antarctic
Seals had established that it “applies to the seas south of 60deg. South Latitude,
in respect of which the Contracting Parties affirm the provisions of Article IV of
the Antarctic Treaty” (Article 1), even if seals are part of the Antarctic ecosys-
tem. The lack of consensus of States with regard to the criteria to be adopted to
define the Southern Ocean together with the umbrella regime of the Antarctic
Treaty for the area south of 60° S latitude (Article VI), led the IHO to propose
a Southern Ocean comprising the waters surrounding the Antarctic Continent
south of the 60°S latitude, in harmony with the 1959 Antarctic Treaty provi-
sion, which provides that the Treaty applies to the area south of 60° South
(Article VI), making no distinction between water or land.42
The Court, which neither considered the Law of the Sea nor the Southern
Ocean, did not question or made any observation regarding the Southern Ocean.
The Court accepted that there is a Southern Ocean, and so did the par-
ties to the case. Could the indirect recognition of the fifth ocean be, even
inadvertently, a side effect of this case?

Acronyms

ICRW International Convention for the Regulation of Whaling

IWC International Whaling Commission
LNTS League of Nations Treaty Series
NRJ Natural Resources Journal
RdC Recueil de Cours Hague Academy of International Law
UNGA United Nations General Assembly
UNTS United Nations Treaty Series

42 402 UNTS 71ff, see: http://www.ats.aq/documents/ats/treaty_original.pdf.

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 Chapter 13

The Exercise of Jurisdiction over Activities in

Antarctica: A New Challenge for the Antarctic
System
Philippe Gautier

Introduction

Hugo Caminos not only shares with Hugo Grotius the same first name; he also
possesses an encyclopedic knowledge of law of the sea. His long and rich expe-
rience in international law, however, is not limited to a specific branch of law.
This explains that the present contribution will not address a topic related to
the law of the sea but instead will examine a question relating to Antarctica,
an area which presents a particular interest for Judge Caminos as well as
Argentina. More precisely, this paper will examine legal issues regarding the
exercise of jurisdiction in Antarctica. This topic has recently attracted a greater
interest in legal writings1 and this reflects the expansion of human activities
in the area located south of 60 degree South Latitude, i.e. the territorial scope
of the 1959 Antarctic Treaty.

The Exercise of Jurisdiction in the Antarctic System

Sovereignty over a territory traditionally represents one of the two main

sources of State jurisdiction, the other being the nationality. In the case of
Antarctica, the exercise of territorial jurisdiction is complicated by the exis-
tence of territorial disputes between some of the seven States claiming sover-
eignty over parts of Antarctica, the non-recognition of sovereignty claims by
other States parties and, last but not least, the fact that the USA and the Russian

1 See e.g., D. Rothwell, “Law enforcement in Antarctica”, in Antarctic Security in the Twenty-
First Century—Legal and policy perspectives, ed. A. Hemmings, D. Rothwell, K. Scott (London:
Routledge, 2012), 136–153; F. Orrego Vicuna, “Port State Jurisdiction in Antarctica: A New
Approach to Inspection, Control and Enforcement”, in Implementing the Environmental
Protection Regime for the Antarctic, ed. D. Vidas (The Hague: Kluwer Law International, 2012),
45–69.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_014

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THE EXERCISE OF JURISDICTION OVER ACTIVITIES IN ANTARCTICA 193

Federation have reserved their right to raise sovereignty claims. In this context,
Article IV2 of the Antarctic Treaty constitutes the pillar sustaining the whole
system. It freezes the disputes over sovereignty issues by stating that the pro-
visions of the treaty cannot be interpreted as prejudicing the position of any
party to it as regards claims of territorial sovereignty, and by declaring that
any act taking place during the entry into force of the treaty has no effect on
the sovereignty claims. On the basis of this understanding, the Antarctic Treaty
could then build a system of governance requiring the active participation of
the States parties to it.
Since 1959, the system has developed through the conclusion of additional
and separate conventions dealing with specific activities (convention on the
conservation of Antarctic seals in 1972 and the convention on the conserva-
tion of Antarctic marine living resources in 1980), the signature in 1991 of
the Madrid Protocol on environmental protection to the Antarctic Treaty,
and the adoption in 1995 of a decision (Decision 1 (1995)3) which clarifies
the different legal tools available to the States Parties acting collectively dur-
ing their annual meetings.4 Due to the increase in the number of tasks to
be discharged by the States parties to the 1959 Antarctic Treaty and its 1991

2 Article IV
1. Nothing contained in the present Treaty shall be interpreted as:
a. a renunciation by any Contracting Party of previously asserted rights of or claims to
territorial sovereignty in Antarctica;
b. a renunciation or diminution by any Contracting Party of any basis of claim to
territorial sovereignty in Antarctica which it may have whether as a result of its
activities or those of its nationals in Antarctica, or otherwise;
c. prejudicing the position of any Contracting Party as regards its recognition or non-
recognition of any other State’s right of or claim or basis of claim to territorial
sovereignty in Antarctica.
2. No acts or activities taking place while the present Treaty is in force shall constitute a
basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica
or create any rights of sovereignty in Antarctica. No new claim, or enlargement of
an existing claim, to territorial sovereignty in Antarctica shall be asserted while the
present Treaty is in force.
3 The decision was adopted on the basis of a working Paper (XIX ATCM/WP 1) submitted by
Belgium, Chile, France, Germany and the United Kingdom.
4 According to Decision 1 (1995): “measures” refer to a “text which contains provisions intended
to be legally binding once it has been approved by all the Antarctic Treaty Consultative
Parties . . . in accordance with paragraph 4 of Article IX of the Antarctic Treaty”; “Decisions”
refer to a “decision taken at an Antarctic Consultative Meeting on an internal organizational
matter”; “Resolutions” refer to a “hortatory text adopted at an Antarctic Consultative
Meeting”.

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194 GAUTIER

Environment Protocol, a light Secretariat was set up in 2004, with its seat in
Buenos Aires. The mission of the Secretariat5 is essentially to provide sup-
port to the annual Antarctic Treaty Consultative Meeting (ATCM) and the
meeting of the Committee for Environmental Protection (CEP) established
by the Environment Protocol, to facilitate the exchange of information among
the States Parties to the Antarctic Treaty, as required by the Treaty and its
Environment Protocol, and to keep and archives documents of the ATCM.
The unique character of the Antarctic System is that its functioning is based
on the coordinated action of States Parties; in particular the States which are
or have acquired a ‘consultative’ status.6 This action is twofold. First, whenever
a specific activity is regulated through a new treaty, it will be the responsibility
of the States parties to the Antarctic Treaty to ratify this treaty and to enact the
legislation required to comply with its provisions in their legal orders. Second,
measures may be adopted by the representatives of the States parties to the
Antarctic Treaty at an Antarctic Treaty Consultative Meeting “in furtherance
of the principles and objectives of the Treaty”.7 These measures may relate to a
wide variety of topics8 and will enter into force after all the Consultative Parties
to the Antarctic Treaty have confirmed their acceptance to be bound by them.
In the two scenarios described above, each State concerned has to take
appropriate action within its own national legal order in order to ensure
that the new legal norms adopted within the Antarctic System are binding
upon natural or juridical persons under its jurisdiction whenever they con-
duct activities in Antarctica. As an illustration, we may refer to article 49 of
the Environment Protocol, which prohibits any activity—other than scien-
tific research—relating to mineral resources. The national legislation of a

5 See the tasks of the Secretariat as listed in Measure 1 (2003).

6 Consultative Parties are the twelve original parties to the Antarctic Treaty as well as any other
State which became a party to the Antarctic Treaty by accession “during such times as that
Contracting Party demonstrates its interest in Antarctica by conducting substantial research
activity there, such as the establishment of a scientific station or the despatch of a scientific
expedition.”
7 Article IX, paragraph 1, of the Antarctic Treaty.
8 Pursuant to article IX, paragraph 1, of the Antarctic Treaty, measures may refer to inter
alia “a. use of Antarctica for peaceful purposes only; b. facilitation of scientific research in
Antarctica; c. facilitation of international scientific cooperation in Antarctica; d. facilitation
of the exercise of the rights of inspection provided for in Article VII of the Treaty; e. questions
relating to the exercise of jurisdiction in Antarctica; f. preservation and conservation of living
resources in Antarctica.”
9 Article 7 Prohibition of mineral resource activities: “Any activity relating to mineral resources,
other than scientific research, shall be prohibited”.

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THE EXERCISE OF JURISDICTION OVER ACTIVITIES IN ANTARCTICA 195

particular State will then have to define the persons and entities which must
comply with this prohibition. Obviously, that raises questions of jurisdiction.
The exercise of jurisdiction constitutes a key element of the process and has
to be properly addressed in order to ensure the functioning of the system. If
not, there may be duplication. In the example, referred to above, of article 4 of
the Environment Protocol, a permit could be issued by more than one State. In
itself, duplication does not jeopardize the implementation of the Protocol—
on the understanding that each permit is issued after a proper procedure—but
it may impair the timely planning of an activity. Another consequence of a lack
of coordination in national implementation mechanisms is that a gap could
be created in the protection regime internationally agreed, for example if an
activity taking place in Antarctica and organized on the territory, or by nation-
als, of a State party is not subject to any prior authorization or administrative
procedure.
As this may be seen, the efficiency of the Antarctic system largely depends
on the manner on which States ensure compliance with the rules which are
contained in, or have been adopted on the basis of, the Antarctic Treaty and
its Environment Protocol. Surprisingly, until recently, not much attention
was paid to jurisdictional issues. Even though the main attention of the 1959
Antarctic Treaty is not directed to the exercise of jurisdiction vis-à-vis activi-
ties taking place south of 60 degree South Latitude, it contains, however, some
provisions on the subject.
In the 1959 Antarctic Treaty, reference is made to jurisdiction in the context
of the system of inspection set up by the Treaty in order to ensure the obser-
vance of its provisions. Pursuant to article VII, paragraph 1, each consultative
party to the Treaty is entitled to designate observers who will “have complete
freedom of access at any time to any or all areas of Antarctica”.10 In accord-
ance with article VIII,11 paragraph 1, of the Treaty, observers are subject to the

10 Article VII, paragraph 2.

11 “Article VIII
1. In order to facilitate the exercise of their functions under the present Treaty, and with-
out prejudice to the respective positions of the Contracting Parties relating to jurisdic-
tion over all other persons in Antarctica, observers designated under paragraph 1 of
Article VII and scientific personnel exchanged under sub-paragraph 1(b) of Article III
of the Treaty, and members of the staffs accompanying any such persons, shall be
subject only to the jurisdiction of the Contracting Party of which they are nationals in
respect of all acts or omissions occurring while they are in Antarctica for the purpose
of exercising their functions.
2. Without prejudice to the provisions of paragraph 1 of this Article, and pending the
adoption of measures in pursuance of subparagraph 1(e) of Article IX, the Contracting

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exclusive “jurisdiction of the Contracting Party of which they are nationals

in respect of all acts or omissions occurring while they are in Antarctica for
the purpose of exercising their functions”. Article VIII, paragraph 1, applies the
same principle to the scientific personnel exchanged in Antarctica between
expeditions and stations under article III, paragraph 1(b) of the Treaty. The
scope of this provision is limited to these two categories of persons since it
expressly states that it applies “without prejudice to the respective positions
of the Contracting Parties relating to jurisdiction over all other persons in
Antarctica”. It may be added that, in the case of exchange of scientific person-
nel between stations, it is likely that agreements will be concluded between
the States concerned in order to ensure that the head of a station is able to
take appropriate enforcement measures to maintain law and order vis-à-vis all
persons staying in the station, including foreign scientists.
The Antarctic Treaty also provides in Article VIII, paragraph 2, that the
“Contracting Parties concerned in any case of dispute with regard to the exer-
cise of jurisdiction in Antarctica shall immediately consult together with a
view to reaching a mutually acceptable solution”.12 This obligation to consult
applies “pending the adoption of measures in pursuance of subparagraph 1(e)
of Article IX”13 of the Treaty.
The reference to article IX of the Treaty makes it clear that the drafters of the
Treaty anticipated the need for further consideration of issues relating to juris-
diction in Antarctica. Indeed, article IX provides for regular meetings among
the contracting parties

for the purpose of exchanging information, consulting together on mat-

ters of common interest pertaining to Antarctica, and formulating and
considering, and recommending to their Governments, measures in fur-
therance of the principles and objectives of the Treaty.14

The provision indicates different items15 to be put on the agenda of these meet-
ings and, from among them, subparagraph (e) refers to ‘questions relating to
the exercise of jurisdiction in Antarctica’.

Parties concerned in any case of dispute with regard to the exercise of jurisdiction
in Antarctica shall immediately consult together with a view to reaching a mutually
acceptable solution.”
12 Article VIII, paragraph 2.
13 Id.
14 Article IX, paragraph 1.
15 See footnote 8.

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Finally, another provision of the Antarctic Treaty plays a role in jurisdic-

tional matters, i.e., article VII, paragraph 5. Prima facie, the content of para-
graph 5 of Article VII is straightforward. It imposes on each Contracting Party
the duty to notify the other Contracting Parties of the conduct of certain activi-
ties. More precisely, under this provision, each Contracting Party is required to
give notice in advance of:

a. all expeditions to and within Antarctica, on the part of its ships or nation-
als, and all expeditions to Antarctica organized in or proceeding from its
territory;
b. all stations in Antarctica occupied by its nationals; and
c. any military personnel or equipment intended to be introduced by it
into Antarctica subject to the conditions prescribed in paragraph 2 of
Article I of the present Treaty.

However, the provision also sets out jurisdictional connections between States
and the activities taking place in Antarctic: nationality of persons and ships
engaged in an expedition to and within Antarctica, nationality of persons
organizing expeditions to and within Antarctica, nationality of stations, terri-
tory in which expeditions to Antarctica are organized and territory from which
expeditions to Antarctica proceed. The provision then attracted a special inter-
est and, in practice, has been used as a building block to develop the Antarctic
System, as this will be seen later.
That said, for some time the item ‘questions relating to the exercise of juris-
diction in Antarctica’ did not generate discussions and rather remained a
‘sleeping beauty’ on the agenda of the Antarctic Treaty Consultative Meeting.
For example, it may be noted that the ‘Agreed Measures for the Conservation
of Antarctic Fauna and Flora’, adopted in 1964 to protect the environment of
Antarctica, are silent on this matter. Although these measures impose the
issuance of a permit for the conduct of certain activities16 in Antarctica, they,
however, do not offer criteria to identify the States competent to exercise their

16 See e.g., Agreed Measures, article VI [Protection of native fauna], paragraph 1: “Each
Participating Government shall prohibit within the Treaty Area the killing, wounding,
capturing or molesting of any native mammal or native bird, or any attempt at any such
act, except in accordance with a permit” and Article IX [Introduction of non-indigenous
species, parasites and diseases], paragraph 1: “1. Each Participating Government shall pro-
hibit the bringing into the Treaty Area of any species of animal or plant not indigenous to
that Area, except in accordance with a permit.”

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jurisdiction by granting permits. They only refer to permits issued by an ‘appro-

priate authority’ without further precision.17
Nevertheless, interest for this topic did not completely disappear and, from
time to time, proposals were in order to discuss issues of jurisdiction at an
ATCM, in particular after the adoption of the Environment Protocol,18 for
example with a view to ensuring a coordinated approach in the national legis-
lation implementing its provisions.19
In general, such initiatives did not receive much support. For example,
in Kyoto (XVIIIth ATCM), after consideration of a document presented by
Uruguay under the agenda item “questions relating to the exercise of jurisdic-
tion in Antarctica” (WP.32), the Meeting, while recognizing “the importance of
this question, the solution of which was left deliberately open in Article IX (1)
of the Antarctic Treaty”,20 considered that “the question raises some deli-
cate and sensitive problems which need more, and careful, deliberations”.21

17 See Agreed Measures, Article II (e): “permit” means a formal permission in writing issued
by an appropriate authority” and article III: “Each Participating Government shall take
appropriate action to carry out these Agreed Measures”. See, however, article IV which
refers to expeditions and stations of States parties to the Treaty: “ The Participating
Governments shall prepare and circulate to members of expeditions and stations infor-
mation to ensure understanding and observance of the provisions of these Agreed
Measures, setting forth in particular prohibited activities, and providing lists of specially
protected species and specially protected areas.”
18 See for example the Final Report of the XVIIth ATCM in Venice (1992): “[o]ne Contracting
Party stressed the desirability of ensuring uniformity of interpretation of those provisions
of the Protocol and its Annexes which required national legislation or other measures
by the Parties for their implementation” (XVIIth ATCM (1992), paragraph 32 of the Final
Report). The Meeting agreed “that this aspect was of considerable importance” (Id.) and
decided “to include this item in the Agenda for the next Consultative Meeting” (XVIIth
ATCM (1992), paragraph 33 of the Final Report). In Kyoto, during the XVIIIth Meeting,
it was acknowledged that “it was desirable to harmonize interpretation where possible”
(XVIIIth ATCM (1994), paragraph 37 of the Final Report) while recognizing “that uniform
application of the Protocol is not possible given different national legislative approaches”
(Id.). The Meeting recognized that “exchange of information on domestic legislation
among consultative Parties is helpful to both the interpretation and implementation
issues” (Ibid., para. 38) relating to the implementation of the Madrid Protocol.
19 For an overview of the national legislations adopted to implement the Environment
Protocol, see K. Bastmeijer, The Antarctic environmental protocol and its domestic legal
implementation (The Hague: Kluwer Law International, 2003).
20 Id., paragraph 122.
21 Id. See also, F. Orrego Vicuna, op. cit., 47.

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THE EXERCISE OF JURISDICTION OVER ACTIVITIES IN ANTARCTICA 199

It then decided to keep the matter under review and to place it on the agenda of
future meetings.22
The reasons for this lack of enthusiasm are not too difficult to understand.
First of all, jurisdiction is a notion closely connected with sovereignty over a
territory. In Antarctica, this immediately interferes with one of the most sen-
sitive elements of the Antarctic System, i.e., article IV relating to the ‘claims
to territorial sovereignty in Antarctica’. Another obstacle is the reluctance of
some States to discuss in an international forum issues relating to the domestic
implementation of their international obligations. Such matters might be seen
as exclusive prerogatives of national authorities, which should not be subject to
any form of international scrutiny or control. A last reason is probably linked
to the remote character of Antarctica and the fact that human life therein is sub-
ject to extreme conditions. This creates difficulties for States, logistically and
financially, to exercise jurisdiction in order to enforce laws and regulations
and to control activities taking place on the South Pole.

The Progressive Recognition of Jurisdictional Issues by the ATCM

The Antarctic Treaty of 1959 contemplated mainly the conduct of scientific

activities in Antarctica, through the organization of expeditions or the opera-
tion of stations. Under these circumstances and, as long as the Antarctic was a
continent reserved to scientific activities conducted by State entities or closely
monitored by governmental agencies, issues of jurisdiction could remain unat-
tended. As regards governmental activities, it is clearly the responsibility of
the State concerned to authorize, monitor and control activities conducted by
it or on its behalf. Likewise, expeditions and stations are subject to the juris-
diction of the States which launch or operate them, without prejudice to the
exercise of jurisdiction by the national States of observers and scientific per-
sonnel exchanged between expeditions and stations, as stated in article VIII,
paragraph 1, of the Antarctic Treaty.
However, a more elaborate approach is needed when it is required to exer-
cise control over more complex activities, in particular non governmental
activities. This may explain that, recently, the issue of jurisdiction surfaced
again at the XXXVth ATCM held in Hobarth in 2012. This time the consider-
ation of this matter led to the adoption of a resolution (Resolution 2 (2012))
by which the representatives of the Consultative Parties “Recommend that the

22 Id., paragraph 123.

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Parties and other Antarctic Treaty Consultative Meeting participants conduct

a discussion on promoting broader Antarctic cooperation.”
Cooperation on matters of juridiction in Antarctica does not take place in a
legal vacuum. While the Antarctic system did not elaborate refined tools to deal
with issues of jurisdiction, it contains, however, some criteria which present an
interest for the determination of the States competent to exercise juridiction
over activities in Antarctica. In this respect, reference was already made to the
nationality principle which, in article VIII of the 1959 Antarctic Treaty, is appli-
cable to observers and scientific personnel exchanged between expeditions
and stations. Likewise, article VII, paragraph 5, offers a list of jurisdictional
connections available to States parties to the Antarctic: nationality of persons
and ships engaged in an expedition to and within Antarctica, nationality of
persons organizing expeditions to and within Antarctica, ‘nationality’ of sta-
tions, territory in which expeditions to Antarctica are organized and territory
from which expeditions to Antarctica do proceed.
That said, article VII, paragraph 5, does not fully answer the questions
raised by the exercise of jurisdiction over activities taking place in Antarctica.
And this is due to the uncertain scope of activities covered by this provision.
Paragraph 5 of article VII certainly covers all governmental activities, with the
exception of activities on the high seas,23 but its scope is less clear as regards
non-governmental activities, particularly under subparagraph (a) (“all expedi-
tions to and within Antarctica, on the part of its ships or nationals, and all
expeditions to Antarctica organized in or proceeding from its territory”). It
could then be interpreted as referring only to those non-governmental activi-
ties in Antarctica in respect of which prior notification is expressly required
under a specific obligation contained in an international instrument binding
upon the State concerned.
Difficulties related to the imprecise scope of annex VII may be evidenced by
provisions contained in the 1991 Environment Protocol. For example, article 3
of the Protocol, entitled ‘Environmental principles’, specifies, in paragraph 1,
that these principles apply to ‘all activities in the Antarctic Treaty area’.24
However, paragraph 4 of the same provision does not refer to ‘all activities’

23 See article VI of the Antarctic Treaty: “The provisions of the present Treaty shall apply to
the area south of 60° South Latitude, including all ice shelves, but nothing in the present
Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any
State under international law with regard to the high seas within that area.”
24 “1. The protection of the Antarctic environment and dependent and associated ecosys-
tems and the intrinsic value of Antarctica, including its wilderness and aesthetic values
and its value as an area for the conduct of scientific research, in particular research essen-

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THE EXERCISE OF JURISDICTION OVER ACTIVITIES IN ANTARCTICA 201

but uses an expression which refers to activities covered under article VII of
the Antarctic Treaty: “Activities undertaken in the Antarctic Treaty area pursu-
ant to scientific research programmes, tourism and all other governmental and
non-governmental activities in the Antarctic Treaty area for which advance
notice is required in accordance with Article VII (5) of the Antarctic Treaty”.
The latter expression might then indicate that there are activities for which
advance notice is not required under article VII, paragraph 5, of the Antarctic
Treaty and which, therefore, are not covered by the Environment Protocol.
Likewise, article 8 detailing the procedure to be followed for assessing the
impact of activities on the environment of the Antarctic does not refer to all
activities but to “any activities undertaken in the Antarctic Treaty area pursu-
ant to scientific research programmes, tourism and all other governmental and
non-governmental activities in the Antarctic Treaty area for which advance
notice is required under Article VII (5) of the Antarctic Treaty”.
A similar distinction may be found in comparing articles 15 and 16 of the
Protocol. Article 15, which requires the parties to take action to respond to
environmental emergencies in the Antarctic Treaty area, refers to emergency
situations resulting from “scientific research programmes, tourism and all
other governmental and non-governmental activities in the Antarctic Treaty
area for which advance notice is required under Article VII (5) of the Antarctic
Treaty”. For its part, article 16, which requires the parties to ‘elaborate rules and
procedures relating to liability for damage’, refers in broader terms to “damage
arising from activities taking place in the Antarctic Treaty area and covered by
this Protocol”.25
In light of the uncertainty regarding the exact of scope of activities regu-
lated under the Environment Protocol, several Consultative Parties26 took the
initiative in 2005 to propose the inclusion of the item “Identification of activi-
ties covered by Article VII (5) of the Antarctic Treaty” on the agenda of the

tial to understanding the global environment, shall be fundamental considerations in the

planning and conduct of all activities in the Antarctic Treaty area.”
25 Regarding the scope of the Annex VI to the Environment Protocol, see e.g., M. Johnson,
“Liability for Environmental Damage in Antarctica: the Adoption of Annex VI to the
Antarctic Environment Protocol”, 19 Geo. Int’l Envtl. L. Rev. 33 (2006): 33–55; K. Scott,
“Liability for environmental damage in Antarctica: Annex VI to the Environmental
Protocol on Liability Arising from Emergencies”, Environmental Liability, Vol. 14 (2006):
87–99; PH. Gautier, “L’Annexe VI au Protocole de Madrid relatif à la protection de
l’environnement de l’Antarctique : ‘Responsabilité découlant de situations critiques
pour l’environnement,’” Annuaire français de Droit international (2006): 418–431.
26 The Netherlands, Belgium, Chile, France, Germany, Italy, South Africa.

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next Consultative meeting27 which was scheduled to take place in Edinburgh.

This initiative was “aimed at drawing up an indicative list of activities covered
by this article”.28 There was no agreement, however, as to whether such topic
should be discussed as a separate agenda item.29
Recently, a more mature approach was adopted by the ATCM towards issues
of jurisdiction in Antarctica. This is the result of an incident arising out of the
unauthorized presence of French yachts in the Antarctic Area and damage
caused to a hut (‘Wordie House’), designated as a ‘Historic Site and Monument’
under the Antarctic Treaty. According to the information contained in the doc-
ument circulated by France: “On 11 January 2010, two French nationals were
discovered in Wordie House hut (HSM 62, Argentine Islands) by British workers
from the United Kingdom Antarctic Heritage Trust (UKAHT). The British work-
ers noted that damage had been caused there, apparently by the French nation-
als. They were crew-members from two vessels sailing under the French flag
(the Esprit d’Equipe and the Eclipse) moored off the site. It transpired that
these vessels had not submitted a preliminary environmental impact assess-
ment, either with the competent French authority or with any other national
authority, thereby infringing Article 8 and Annex 1 of the Madrid Protocol.
French law brought in to implement the Antarctic Treaty penalizes the
carrying-out of any undeclared activities in the Antarctic. Offenders are liable
to administrative and criminal sanctions”.30 Accordingly, judicial proceedings
were instituted before French Courts. The document also mentioned that the
skipper of one of the two vessels concerned, the Esprit d’Equipe, “maintained
in his defence that he had received from the Chilean authorities in Puerto
Williams (Directemar-Armada de Chile) a document entitled Formulario
condiciones de Zarpe de la embarcacion”.31 It further explained that such a

document cannot replace an authorization for activity within the Treaty

area as stipulated in the Madrid Protocol, as it appears to be simply a
cruising permit to depart Chile. Its issue seems likely to cause a degree of
confusion on the part of skippers. Clarification of the scope of the author-
ization afforded by this document at the time of its issue would eliminate
this uncertainty.32

27 ATCM, XXVIIIth, WP 71.

28 Final Report of ATCM, XXVIIIth, paragraph 240.
29 See Final Report of ATCM, XXVIIIth, paragraph 240.
30 ATCM, XXVIIIth, WP 71, 3.
31 Id., 4.
32 Id.

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THE EXERCISE OF JURISDICTION OVER ACTIVITIES IN ANTARCTICA 203

France reported this incident to the ATCM in 201133 and made the suggestion
that the system put into place among the parties to electronically exchange
information should be improved and that the Consultative Parties should
“engage in discussions about the difficulties stemming from the exercise of
jurisdiction in Antarctica . . .”.34 Through this pragmatic approach, the Meeting
was able to engage into a discussion of this topic during the XXXVth ATCM in
Hobart (2012).35 On this basis, a resolution was adopted by the ATCM (Resolu-
tion 2 (2012) ‘Cooperation on questions related to the exercise of jurisdiction
in the Antarctic Treaty area’) which provides as follows:

The representatives
Recalling Article IX(1)(e) of the Antarctic Treaty, which provides that
Contracting Parties consult on “questions relating to the exercise of juris-
diction in Antarctica”;
Convinced of the necessity to consider such questions with respect to
human activities and incidents occurring in the Antarctic Treaty area;
Noting the increase of human activities in the Antarctic Treaty area;
Acknowledging the need to promote compliance with law in the Antarctic
Treaty area;
Recognising the unique challenges, both practical and legal, of law
enforcement in the Antarctic Treaty area;
Recommend that:
the Parties cooperate to institute discussion on issues related to the exer-
cise of jurisdiction in the Antarctic Treaty area.

The Meeting also decided to “establish an intersessional contact group (ICG),

dedicated to cooperation on questions related to the exercise of jurisdiction
in the Antarctic Treaty area.”36 This matter was further discussed during the
XXXVIth ATCM in Brussels in 201337 and the stress is now placed on the need
to improve exchange of information among the parties. Such exchange could
then concern precise and practical data such as

publically available information on cases and laws which have relevance

to the Antarctic, including how the powers given to station commanders

33 See ATCM, XXXIV, WP 11.

34 Id., 5.
35 See Final Report ATCM, XXXVth, paragraphs 45–48.
36 Id., para. 47.
37 See Final Report ATCM, XXXVIth, paragraphs 41–47.

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and ship and aircraft captains differ between states, and whether these
persons have any powers with respect to infractions committed in the
Antarctica Treaty area.38

Comments

On the basis of the developments highlighted above, it appears that the par-
ties to the Antarctic Treaty are now considering ways and tools in order to deal
with jurisdictional issues.
In this respect, a first question to be addressed concerns the jurisdictional
links to be used by States parties to the Antarctic Treaty. At first look, this
matter may seem complicated in light of refined distinctions which list a
large number of factors. For example, K. Scott cites 9 different jurisdictional
links contemplated in the context of the implementation of annex VI to the
Environment Protocol:

the state where the activity was organized; the state which authorized the
activity; the state were the operator is incorporated; the state where
the operator conducts its business; the state which gives nationality to the
operator; the state within which the vessel carrying out the activity is
registered; the state from which the operator departs to the Antarctic;
the state in which any action for compensation for environmental dam-
age may be taken; and the state within which the operator’s insurance
is held.39

This complexity may be further reinforced by examples of fictious cases involv-

ing damages, injuries to persons, issues of law of the sea and multiple nation-
alities. That said, reality does not always exceed the fiction and, as this was
noted in the incident of ‘Wordie House’ hut, facts may be less complex than
the scenarios imagined by lawyers. In the same vein, whatever sophisticated
jurisdictional links may be elaborated, these links at the end come back to two
essential elements: nationality and territory.

38 Id., para. 45. See also WP 44 submitted by France, which report to the ATCM on the work
of the Intersessionnal Contact Group (ICG) on the exercise of jurisdiction.
39 K. Scott, “Liability for environmental damage in Antarctica: Annex VI to the Environmental
Protocol on Liability Arising from Emergencies”, Environmental Liability, Vol. 14 (2006),
90, footnote 35.

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THE EXERCISE OF JURISDICTION OVER ACTIVITIES IN ANTARCTICA 205

Nationality, in a broad sense, would cover jurisdiction exercised by a State

over its nationals—natural or legal persons—, ships flying its flag, airplanes
registered in that State, as well as the stations that it operates in Antarctica (for
example as regards the admission of groups of tourists in a station).
In accordance with article VII, paragraph 5, of the Antarctic Treaty, Territory
would cover activities in Antarctica which would be organized on the terri-
tory of a particular State (e.g. by a tour operator) or which would proceed from
its territory (e.g. from a port of that State). Territorial jurisdiction exercised on
the South pole or on the maritime areas off its coast40 on the basis of sover-
eignty claims over Antarctica would probably raise difficulties since, as this is
stated in the document presented by France in 2012, “article IV of the Antarctic
Treaty prohibits Parties to take any measure that would imply an exercise of
their sovereignty on a territorial basis. Thus, the exercise of jurisdiction on a
territorial basis would enter in conflict with this article IV.”41 Additional juris-
dictional links could certainly be invoked, such as the “the jurisdiction of the
State that granted an activity authorization in the Treaty area”42 but, ultimately,
such an authorization is granted by a State for the reason that it may exercise
jurisdiction, through its territory or nationality, over these persons or entities.
A second issue relates to the scope of activities which are regulated under
the Antarctic Treaty. Attention was already drawn in this context on the rela-
tively imprecise character of article VII, paragraph 5, of the Antarctic Treaty. A
solution to overcome this difficulty could be to ensure, for example through a
measure adopted by an ATCM, that article VII would be given a uniform inter-
pretation as regards activities it covers. That is probably a too radical approach;
it may be wiser to adopt a pragmatic approach and to provide additional clari-
fications when the need arises. It may be observed in the respect that the
Antarctic system, up to now, always found the necessary resources to evolve in
a pragmatic way when faced with new challenges.
As an illustration, reference may be made to the additional conventions
concluded to regulate activities, such as fishing and hunting of seals, which
were not covered by the Antarctic Treaty for the reason that its provisions

40 See e.g. the Australian Act of 1999 (Environment Protection and Biodiversity Conserva-
tion Act) which prohibits whaling activities offshore the Australian Antarctic Territory
not only with respect to Australian nationals and vessels but also vis-à-vis all persons
and vessels. “However, the position taken by various Australian governments is that not-
withstanding the provisions of Australian law considerable difficulties would be faced by
any active enforcement of that law”: D. Rothwell, op. cit., 148.
41 XXXVth ATCM, 2012, WP28, 4.
42 Id., 4.

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are without prejudice to the high seas’ freedom.43 Those conventions con-
tain the necessary criteria enabling States parties to exercise jurisdiction in
order to ensure compliance with their provisions.44 In the Convention for the
Conservation of Antarctic Seals (1972), article 2 (‘Implementation’) states that
the “Contracting Parties agree that the species of seals . . . shall not be killed
or captured within the Convention area by their nationals or vessels under
their respective flags except in accordance with the provisions of this
Convention” and that, for this purpose, “Each Contracting Party shall adopt
for its nationals and for vessels under its flag such laws, regulations and other
measures, including a permit system as appropriate, as may be necessary to
implement this Convention.” The Convention on the Conservation of Antarctic
Marine Living resources (1980)45 follows a similar approach.
Likewise, if the need arises, nothing prevents the Consultative Parties from
developing additional criteria through the existing tools available under the
Antarctic Treaty and its Environment Protocol, e.g. through the adoption of
measures under article IX of the Treaty or additional annexes to the Protocol.
To a certain extent, this method was already implemented in article 2 of
annex IV and in articles 1 and 2 (d) of annex VI to the Environment Protocol,
these articles providing more precise jurisdictional connections.
Article 2 (‘Application’) of annex IV (‘prevention of marine pollution’) speci-
fies that the annex “applies, with respect to each Party, to ships entitled to fly
its flag and to any other ship engaged in or supporting its Antarctic operations,
while operating in the Antarctic Treaty area.” Annex VI on liability arising
from environmental emergencies, defines in its article 1 the scope of applica-
tion of its provisions. Article 1 then makes the usual reference to article VII,

43 See article VI of the Antarctic Treaty (text supra in footnote 23).

44 Reference may also be made to the Convention on the Regulation of Antarctic Mineral
Resource Activities (1988) which contained an sophisticated regime for the exploration
and exploitation of mineral resources and, for that purpose, had to define precisely the
term “operator” and “sponsoring State” (see article 1, paragraph 11 and 12).
45 While the CCAMLR does not contain a provision as explicit as article VI of the 1972
Convention, it is based on the exercise of flag State’s jurisdiction. See article XXI (1): “Each
Contracting Party shall take appropriate measures within its competence to ensure com-
pliance with the provisions of this Convention and with conservation measures adopted
by the Commission to which the Party is bound in accordance with Article IX of this
Convention”, and article XX (2) “The Members of the Commission shall provide, in the
manner and at such intervals as may be prescribed, information about their harvesting
activities, including fishing areas and vessels, so as to enable reliable catch and effort sta-
tistics to be compiled.”

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paragraph 5, of the Antarctic Treaty: “This Annex shall apply to environmen-

tal emergencies in the Antarctic Treaty area which relate to scientific research
programmes, tourism and all other governmental and non-governmental
activities in the Antarctic Treaty area for which advance notice is required
under Article VII(5) of the Antarctic Treaty, including associated logistic sup-
port activities”. However, it also clarifies the scope of the annex as regards
tourist activities—a non-governmental activity—on board of ships in mari-
time areas south of 60 degree South Latitude by expressly indicating that the
annex “shall apply to all tourist vessels that enter the Antarctic Treaty area”.
Furthermore, since most of the provisions of the annex are directed to activi-
ties conducted by an ‘operator’, the annexe gives a definition of this term:
“any natural or juridical person, whether governmental or non-governmental,
which organises activities to be carried out in the Antarctic Treaty area”.46 In
principle, these activities need to be authorized and controlled by a State party
and annex VI contains specific obligations to be discharged by such a State47
in the event of environmental emergencies. This logically requires the estab-
lishment of a jurisdictional connection between the operator and the State
concerned. In this respect, article 2 of Annex VI gives a definition of the term
‘operator of the Party’, i.e.:

an operator that organises, in that Party’s territory, activities to be carried

out in the Antarctic Treaty area, and:
(i) those activities are subject to authorisation by that Party for the
Antarctic Treaty area; or
(ii) in the case of a Party which does not formally authorise activities for
the Antarctic Treaty area, those activities are subject to a comparable
regulatory process by that Party.

As this may be seen from the provision, two conditions have to be met in order
to qualify as a State of the operator for the purpose of Annex VI: the organi-
zation of the activity on that State’s territory and such activity is subject to
authorization (or comparable regulatory process) by that State.
In light of these examples, it may be assumed that, in the future, a similar
approach could be adopted, on a case by case basis, whenever regulations need
to be adopted to address specific activities, in particular tourism and other
non-governmental activities.

46 Article 2, paragraph c.
47 See e.g., articles 3, 4, 5 and 11.

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208 GAUTIER

A third aspect of the question relates to the cooperation among States

Parties. Issues of jurisdiction may be avoided or solutions may be facilitated
if prior information is exchanged on inter alia implementation legislation
adopted by States parties, authorizations granted with respect to activities,
authorities competent to take law enforcement measures or collect evidence.
In this regards, it has been indicated that, in the recent years, steps have been
taken by the Consultative Parties in order to enhance their cooperation.
To conclude these comments, three additional items will be briefly men-
tioned, which constitute further challenges for the Antactic System in the
matter of the exercise of juridiction. First, the development of international
regulations on human activities in Antarctica and the adoption of implementa-
tion legislation at national level will increase the need to take law enforcement
measures vis-à-vis persons which do not comply with international obligations.
In law enforcement activity, jurisdiction exercised on the basis of nationality
remains probably the solution preferred by a majority of States parties. This
does not exclude, however, that other States could be entitled to intervene, a
scenario which is contemplated in article 5 of annex VI to the Environment
Protocol in the event of imminent ‘threat of significant and harmful impact
to the Antarctic environment’. Second, activities at sea raises specific jurisdic-
tional issues due to the ‘without prejucide’ clause included in article VI of the
Antarctic Treaty according to which “nothing in the present Treaty shall preju-
dice or in any way affect the rights, or the exercise of the rights, of any State
under international law with regard to the high seas within that area.” This
provision does not prevent, however, States Parties, of agreeing to jointly regu-
late specific activities at sea. In the past, this was done through the adoption of
separate conventions but this approach does not seem strictly necessary. As an
example, it may be noted that it was possible to regulate activities conducted
at sea through annex IV48 and annex VI49 to the Environment Protocol. Finally,
it should be kept in mind that juridictional issues concerning Antarctica
are likely to concern third parties, for example when activities in Antarctica are
organized on the territory of a third State, by an operator incorporated therein,
or with a ship flying its flag. The need to ensure that no activity takes place in
Antarctica contrary to the Antarctic Treaty and its Protocol is clearly expressed

48 See annex IV (prevention of marine pollution) and annex VI which, pursuant to its
article 2, applies “to all tourist vessels that enter the Antarctic Treaty area”.
49 See supra paragraph 34.

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THE EXERCISE OF JURISDICTION OVER ACTIVITIES IN ANTARCTICA 209

in provisions included in these two treaties.50 The implementation of those

provisions vis-à-vis nationals of third States certainly represents another chal-
lenge for the Antarctic system.

Conclusion

The implementation by States of internationally agreed rules over a large con-

tinent presupposes logically that there is a common understanding of the cri-
teria which may be used to exercise jurisdiction. However, the situation is more
complex in the case of Antarctica in light of the sovereignty issues over parts of
the South Pole. This explains that, in 1959, the Antarctic Treaty did not intend
to solve this matter and entrusted the parties to it with the task of developing
appropriate tools. In this context, it was noted that the provisions contained in
article VII, paragraph 5, have been used by the parties to determine the scope
of activities covered by the Treaty as well as to define criteria for the exercise of
jurisdiction over the said activities.
The adoption of the Environment Protocol and the obligation for States
parties to ensure that persons under their jurisdiction comply with its provi-
sions make it necessary to review the question of the exercise of jurisdiction
in Antarctica. The need to develop a collective approach towards jurisdic-
tional issues has been gradually recognized by the Consultative Parties and the
ATCM is taking steps to reinforce cooperation and exchange of information
with a view to responding to jurisdictional issues in a more efficient manner.
Jurisdictional connections available to States in the exercise of their jurisdic-
tion relate broadly to the nationality or territoriality principles. That said, there

50 See article X of the Antarctic Treaty: “Each of the Contracting Parties undertakes to exert
appropriate efforts, consistent with the Charter of the United Nations, to the end that
no one engages in any activity in Antarctica contrary to the principles or purposes of
the present Treaty”, and article 13, paragraph 5, of the Environment Protocol: “5. The
Antarctic Treaty Consultative Meetings shall draw the attention of any State which is not
a Party to this Protocol to any activity undertaken by that State, its agencies, instrumental-
ities, natural or juridical persons, ships, aircraft or other means of transport which affects
the implementation of the objectives and principles of this Protocol.” See also article X,
paragraph 1, of the Convention on the conservation of Antarctic marine living resources
(1980):
1. The Commission shall draw the attention of any State which is not a Party to this
Convention to any activity undertaken by its nationals or vessels which, in the opinion
of the Commission, affects the implementation of the objective of this Convention.

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210 GAUTIER

is probably no need—and no desire among the States parties—to develop a

uniform approach regarding the exercise of jurisdiction in Antarctica. The
Antarctic system has been able to evolve whenever faced with new chal-
lenges. When the need arises, nothing prevents the Consultative Parties from
developing additional criteria with respect to specific activities, in separate
conventions or through the mechanisms available under the Antarctic Treaty
and its Environment Protocol, e.g. through the adoption of a measure under
article IX of the Treaty, a resolution, or an annex to the Protocol.

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 Chapter 14

The System of Inspection of the Commission for

the Conservation of Antarctic Marine Living
Resources
Ariel R. Mansi

Concerns raised in the 1970s by the adverse impact that the overharvesting of
krill, as the main prey for higher level predators, might have on other species
in Antarctic waters moved the Antarctic Consultative Parties in 1977 towards
negotiating a regime within the framework of the Antarctic Treaty addressed
to the conservation of marine living resources in the southern oceans.1 To that
end and following consultations as well as scientific advice, an international
conference was held in Canberra, Australia, from 7 to 20 May 1980. As a result
thereof the text of the Convention on the Conservation of Antarctic Marine
Living Resources was agreed (CCAMLR, the Convention).2
The Convention3 establishes a Commission for the Conservation of
Antarctic Marine Living Resources (CCAMLR) as a regulatory body and policy
maker. A Scientific Committee is also established as a consultative body which
provides the Commission with advice regarding conservation and manage-
ment. Both the Commission and the Scientific Committee (SC) are composed

1 The provisions contained in Recommendation IX-2 of theAntarctic Treaty Consultative

Meeting (ATCM) led to the establishment of the Convention and included the principles
that were subsequently developed in the Convention (www.ats.aq).
2 On 20 May 1980, the following States signed the Convention: Argentina, Australia, Belgium,
Chile, Federal Republic of Germany, France, German Democratic Republic, Japan, New
Zealand, Norway. Poland, Republic of South Africa, Union of Soviet Socialist Republics,
United Kingdom of Great Britain and Northern Ireland and United States of America. The
Convention entered into force on 7 April 1982. All above mentioned States have ratified
the Convention and are Members of the Commission. Since 1982 Brazil, European
Community, India, Italy, Namibia, People’s Republic of China, Republic of Korea, Spain,
Sweden, Ukraine and Uruguay have acceded to the Convention and are Members of the
Commission. At present Bulgaria, Canada, Cook Islands, Finland, Greece, Islamic Republic
of Pakistan, Mauritius, Netherlands, Peru, Republic of Panama and Vanuatu are Parties to
the Convention but not Members of the Commission.
3 Convention for the Conservation of Antarctic Marine Living Resources (1980): http//www
.ccamlr.org/en/publications/basic-documents); 1329 UNTS 48.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_015

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212 mansi

by representatives of the Commission Members.4 A Secretariat, located in

Hobart, Australia, provides administrative services and keeps the flow of infor-
mation necessary for the appropriate functioning of CCAMLR.
The System of Inspection has been established by the Commission within
the framework of the Convention. Therefore, and prior to examining thor-
oughly this theme, consideration will be given to some distinctive aspects of
CCAMLR’s legal regime.5

4 There have been thirty two annual Commission Meetings in Hobart, Australia, and two
Special Commission Meetings. The XXXII Commission Meeting took place in 2013.
5 The legal regime consisting of the Convention and the conservation measures and other
measures adopted by the Commission is a multilateral scheme which exceptionally admits
the application of national measures in accordance with the Statement of the Chairman
of the Conference on the Conservation of Antarctic Marine Living Resources, 19 May 1980.
The text of this Statement, which follows, was included in the publication of the Final Act
of the Conference: “(. . .) 1. Measures for the conservation of Antarctic marine living resources
of the waters adjacent to Kerguelen and Crozet, over which France has jurisdiction, adopted
by France prior to the entry into force of the Convention, would remain in force after the
entry into force of the Convention until modified by France acting within the framework of
the Commission or otherwise. 2. After the Convention has come into force, each time the
Commission should undertake examination of the conservation needs of the marine living
resources of the general area in which the waters adjacent to Kerguelen and Crozet are to
be found, it would be open to France either to agree that the waters in question should be
included in the area of application of any specific conservation measure under consideration
or to indicate that they should be excluded. In the latter event, the Commission would not
proceed to the adoption of the specific conservation measure in a form applicable to the
waters in question unless France removed its objection to it. France could also adopt such
national measures as it might deem appropriate for the waters in question. 3. Accordingly,
when specific conservation measures are considered within the framework of the
Commission and with the participation of France, then: (a) France would be bound by any
conservation measures adopted by consensus with its participation for the duration of those
measures. This would not prevent France from promulgating national measures that were
more strict than the Commission’s measures or which dealt with other matters; (b) in the
absence of consensus, France could promulgate any national measures which it might deem
appropriate. 4. Conservation measures, whether national measures or measures adopted
by the Commission, in respect of the waters adjacent to Kerguelen and Crozet, would be
enforced by France. The system of observation and inspection foreseen by the Convention
would not be implemented in the waters adjacent to Kerguelen and Crozer except as agreed
by France and in the manner so agreed. 5. The understandings set forth in paragraphs 1–4
above, regarding the application of the Convention to waters adjacent to the islands of
Kerguelen and Crozet, also apply to waters adjacent to the islands within the area to which
this Convention applies over which the existence of State sovereignty is recognized by all
Contracting Parties.” “No objections to the statement were made”. Under Commission for the
Conservation of Antarctic Marine Living Resources, see Basic Documents, Part 1, December
2013 (www.ccamlr.org).

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The System of Inspection of the CCAMLR Commission 213

It may be noted that the effectiveness of the multilateral regime created

by the Convention is a consequence of the close cooperation developed
between the Commission and the Scientific Committee. The Commission
is the only international organization within the Antarctic Treaty System. It
enjoys legal personality in the territory of its State Parties as may be necessary
to perform its function and achieve the purposes of the Convention.6 Decision
making by the Commission on substantive matters is based on the rule of
consensus.7 The decision of whether or not a matter is substantive is made
by consensus.8
The Convention, including its System of Inspection, is a substantial part
of the wider structure of the Antarctic Treaty System.9 Notwithstanding the
singularities of the regime established by the Convention, its Preamble and
its text indicate the clear intention of the authors of the document to ensure
CCAMLR’s consistency with the Antarctic Treaty.10
In such context the use of Antarctica for peaceful purposes and the freedom
of scientific research are paramount. Accordingly, Article III establishes that

The Contracting Parties, whether or not they are Parties to the Antarctic
Treaty, agree that they will not engage in any activities in the Antarc-
tic Treaty area contrary to the principles and purposes of that Treaty and
that, in their relations with each other, they are bound by the obligations
contained in Articles I and V of the Antarctic Treaty.

The Convention provides a comprehensive conservation regime based on the

ecosystem approach to management. Following the concept of biological
and oceanographic unity it establishes an area whose boundaries lie north-
wards and exceeding the area of application of the Antarctic Treaty up to

6 The Antarctic Treaty Secretariat which is located in Buenos Aires, Argentina, is deemed
not to be an international body as such though it enjoys some limited legal personality in
order to enable it to carry out its functions within the host country.
7 J. Turner, J. Jabour, D. Miller, “Consensus or not Consensus: that is the CCAMLR Question”,
22 Ocean Yearbook, ed. A. Chircop, S. Coffen-Smout, M. McConnell (Leiden: Martin
Nihjoff, 2008).
8 Convention, Article XII.
9 See R. Guyer, The Antarctic System (1973), 139 Hague Recueil, 149. The Protocol to the
Antarctic Treaty on Environmental Protection provides in Article I(e) for the purposes
of the Protocol the following definition: “Antarctic Treaty system means the Antarctic
Treaty, the measures in effect under that Treaty, its associated separate international
instruments in force and the measures in effect under those instruments” (www.ats.aq).
10 Antarctic Treaty (1959), 402 UNTS 71.

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214 mansi

the Antarctic Convergence,11 thus exceeding the area of application of the

Antarctic Treaty. According to Article I, the Convention applies to Antarctic
marine living resources which form part of the Antarctic marine ecosystem.
Antarctic marine living resources means the populations of fin fish, molluscs,
crustaceans and all other living organisms, including birds found south of the
Convergence. Antarctic marine ecosystem means the complex of relationships
of Antarctic marine living resources with each other and with their physical
environment. Whales and seals are not under the authority of the Commission
on account of the respective conventions already in force.12 This may be under-
stood in the sense that those conventions are to be given primacy. However, in
the light of the ecosystem approach enshrined in the Convention the needs of
Antarctic whales and seals must be taken into account by the Commission at
the time of managing other marine living resources.13
The objective of the Convention is the conservation of Antarctic marine liv-
ing resources (Article II.1), a concept which for the purposes of the Convention
includes rational use (Article II.2). It has been suggested that ‘rational use’ may
be defined as “the use of the resources of an ecosystem in such a way that
the goods and services provided by that ecosystem are maintained in perpetu-
ity along with the biological diversity and ecosystem structure on which they
depend”.14 This definition seems to be inappropriate since in the context of
CCAMLR it would not be reasonable to restrict the concept of “rational use”
to the sustainable use of the resources and to the conservation of the eco-
system, if necessary, to the exploited populations, because the objectives of
the Convention also apply to non-exploitable species, as it is established in
Article I.2.15
CCAMLR regulates harvesting and associated activities in the Convention
area to ensure the principles of conservation set out in Article II. 2. Accordingly,

11 A. Watts, International Law and the Antarctic Treaty System (Cambridge: Cambridge
University Press, 1992), 151: The Antarctic Convergence is the sea area “where the cold
Antarctic waters, which are moving northwards dip beneath the warmer southward-
moving subtropical waters”. It is deemed to be a line joining the following points along
parallels of latitude and meridians of longitude: 50°S, 0°; 50°S, 30°E; 45°S, 30°E; 45°S,
80°E; 55°S, 80°E; 55°S, 150°E; 60°S, 150°E; 60°S, 50°W; 50°S, 50°W; 50°S, 0°.
12 Convention for the Regulation of Whaling (1946), 161 UNTS 72 and the Convention for the
Conservation of Antarctic Seals (1972), 1080 UNTS 175.
13 W. Bush, Antarctica and International Law, vol. 1 (New York: Oceana Publications Inc.,
1982), 401–408.
14 SC-CAMLR-XXX Report Annex 6 (Report of the Workshop on Marine Protected Areas,
Brest, France, 29 August to 2 September 2011) paragraph 5.16.
15 SC-CAMLR-XXX Report paragraph 7.18.

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The System of Inspection of the CCAMLR Commission 215

exploited species should not be allowed to fall below levels assuring stable
recruitment, maintaining ecological relationships and preventing or minimiz-
ing the risk of changes non reversible over two or three decades.
The function of the Commission is to give effect to the objective and prin-
ciples of the Convention. The Commission compiles data on the status of and
changes in population of Antarctic marine living resources and on factors
affecting harvested species and dependent or related species. It also analyses
and publishes relevant information, formulates, adopts and revises conserva-
tion measures on basis of the best scientific evidence available16 and imple-
ments the System of Inspection and the Scheme of Scientific International
Observation17 in accordance with Article XXIV of the Convention.
The System of Inspection, as well as vessel licensing, monitoring of vessels,
monitoring of transhipments, the Vessel Monitoring System (VMS), the Catch
Documentation Scheme (CDS), Contracting Parties IUU Vessel List18 and Non-
Contracting Parties IUU Vessel List are tools implemented to support conser-
vation and management of Antarctic Marine Living resources. The operation
of conservation measures and compliance systems is reviewed every year by
the Standing Committee on Implementation and Compliance (SCIC), which
as a subsidiary body provides advice to the Commission.19
The CCAMLR System of Inspection was adopted in 1988 as a joint mech-
anism to support at-sea inspections carried out in the Convention area by
Member states of the Commission to flag vessels of all Contracting Parties.20
Previous authorisation by the Flag State is not a requisite. Its text, which is not
formally a conservation measure as such, was developed by the Commission
by means of binding report language regulating i.a. the procedures for the
designation of inspectors, their rights and responsibilities, the procedures for
boarding and inspection, inspection reporting, the procedures concerning
prosecutions and the imposition of sanctions by the Flag State. If sanctions are

16 Article IX of the Convention refers to conservation measures adopted by the Commission.

17 www.ccamlr.org.
18 Illegal, Unregulated and Unreported Fishing.
19 http://www.ccamlr.org/en/compliance.
20 The System of Inspection was adopted at CCAMLR-VII (Report paragraph 124) and
amended at CCAMLR-XII (Report paragraphs 6.4 and 6.8), CCAMLR-XIII (Report para-
graph 5.26), CCAMLR-XIV (Report paragraphs 7.22, 7.26 and 7.28), CCAMLR-XV (Report
paragraph 7.24), CCAMLR-XVI (Report paragraph 8.14), CCAMLR-XVIII (Report para-
graph 8.25), CCAMLR-XXV (Report paragraph 12.73) and CCAMLR-XXVI (Report
paragraphs 13.79 to 13.83). The Terms of Reference and Organisation of Work of SCIC are
based on the Commission’s Decision as adopted at CCAMLR-XXI (Report paragraph 5.16)
Annex 5. See Basic Documents, Part 9 (www.ccamlr.org).

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216 mansi

to be applied the Flag State shall be provided with conclusive evidence result-
ing from the System of Inspection.
It should be noted that the CCAMLR System of Inspection is an exception
to the basic principle of international law which establishes Flag State con-
trol in the high seas on vessels flying its flag, including fishing vessels. This
principle is inherent to state sovereignty and, therefore, derogations from it
should be interpreted restrictively. The United Nations Convention on the Law
of the Sea (UNCLOS) has codified the pertinent customary law, while provid-
ing specific exceptions to Flag State jurisdiction and/or to Flag State control
in the high seas.21 Accordingly, the CCAMLR System of Inspection enables
Members to assert control22 in the Convention area on vessels flagged to
Contracting Parties found in the Convention area.23 The CCAMLR System of
Inspection does not apply outside the Convention area nor is it applicable in
the Convention Area with respect to vessels flagged to States which are not
Parties to the Convention, unless authorisation is given by the Flag State.24
With respect to the application of at-sea inspections in Statistical Subareas
of the Convention 48.2 and 48.3 (South Georgia) and 48.4 (South Sandwich
Islands) a significant role is played by the sovereignty dispute between
Argentina and the United Kingdom over the Malvinas (Falkland), South
Georgia and South Sandwich Islands and surrounding waters on account of its
implications for the CCAMLR System of Inspection.

21 UNCLOS (1982), 1833 UNTS 3, see Article 92.1: “Ships shall sail under the flag of one State
only and, save in exceptional cases expressly provided for in international treaties or in
this Convention, shall be subject to its exclusive jurisdiction on the high seas . . .”. Also see
Article 111, which refers to the right of visit in the high seas as an exception to Flag State
control.
22 According to the System of Inspection Members are not entitled to assert jurisdiction
on foreign vessels but only to assert control in the Convention area on vessels flagged to
Contracting Parties by means of verifying its flag and documentation on board as well as
by verifying compliance with the Convention and measures adopted by the Commission.
23 With respect to the application of at-sea inspections in Statistical Subareas of the
Convention 48.2 and 48.3 (South Georgia) and 48.4 (South Sandwich Islands) reference
shall be made to the sovereignty dispute between Argentina and the United Kingdom
over the Malvinas (Falkland), South Georgia and South Sandwich islands and surround-
ing waters (“Question of the Malvinas Islands/Falkland”) and its consequences con-
cerning the CCAMLR System of Inspection. See n. 5 above, Statement by the Chairman,
19 May 1980.
24 CCAMLR-XXV SCIC Report paragraph 2.12: The fishing vessel Taruman, flagged to
Cambodia, not a Party to the Convention, was sighted in the high seas in the Convention
Area. Upon authorisation by the Flag State, the Taruman was arrested and conducted to
port by Australia to be prosecuted.

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The System of Inspection of the CCAMLR Commission 217

In accordance with paragraph five of the Chairman’s Statement, 19 May

1980, the understandings concerning the application of the Convention to
waters adjacent to the islands of Kerguelen and Crozet, also apply to waters
adjacent to the islands within the area to which the Convention applies over
which the existence of State sovereignty is recognized by all Contracting
Parties. In the waters adjacent to all other territories found in the Convention
area the multilateral regime of the Convention applies.
In the Convention Area State sovereignty is recognized by all Contracting
Parties to France with respect of the Kerguelen and Crozet Islands, to South
Africa with respect of the Prince Edward Islands, to Australia with respect of
the Heard and McDonald Islands and to Norway with respect of Bouvet Island.
This means that South Africa, Australia and Norway are also entitled to adopt
their own national measures under the Chairman’s Statement. In the case of
South Georgia and the South Sandwich islands State sovereignty is not rec-
ognized by all Contracting Parties. The object of this sovereignty dispute also
includes the Malvinas (Falkland) Islands which are not located within the
Convention Area.
Interpretation of paragraph five of the Chairman’s Statement, 19 May
1980, by Argentina and the United Kingdom is highly controversial.25 Under
the Chairman’s Statement,26 France has frequently made reservations to
conservation measures adopted by the Commission to exclude their applica-
tion in the French EEZ around the Kerguelen and Crozet Islands. As to the
CCAMLR System of Inspection, its application to those waters was already
excluded in the text of the Chairman’s Statement. South Africa has invoked
the Chairman’s Statement, although not to the same extent as France. Norway
has only declared a territorial sea around Bouvet Island and has never invoked
the Chairman’s Statement.
Australia has not made any formal reservations under the Chairman’s
Statement either to a conservation measure adopted by the Commission or
to the CCAMLR System of Inspection. However, at every commission meeting
Australia reaffirms its jurisdiction over the Heard Island and the McDonald
Islands by means of a formal declaration according to which it recalls that

25 A. Mansi, “Desarrollos recientes en el establecimiento de áreas marinas protegidas en los

océanos australes,” Anuario Argentino de Derecho Internacional XXI (Córdoba: Asociación
Argentina de Derecho Internacional, 2012), 32–38. See CCAMLR-XV Report on discus-
sions concerning agenda item 13: Interpretation and Application of the Convention and
the Statement by the Chairman 1980 in relation with Subareas 48.3 and 48.4, paragraphs
13.1–13.41.
26 See n. 5 above.

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218 mansi

fishing and fisheries research activities in the EEZ around those islands which
are included in CCAMLR Statistical Divisions 58.4.3 and 58.4.2 are subject to
approval by Australia. Since Australia may at any time apply the Chairman’s
Statement, its declaration should not be considered as a reservation under the
Chairman’s Statement. Therefore it seems that Australia while agreeing with
the application of the multilateral scheme of the Convention, would not object
to inspections which could be carried out in that region by other Members of
the Commission.
Neither Argentina nor the United Kingdom have invoked the Chairman’s
Statement. However, the United Kingdom adopts measures unilaterally,
mostly concerning administrative matters, such as regulating access to fish-
eries, enforcing licensing and permit conditions, placing British observers
under the CCAMLR System of International Observation on board vessels
flagged to other Commission Members and conducting a CCAMLR inspection
followed by a compulsive British procedure.27 Argentina, while strongly and
systematically objecting to those measures, considers invalid any British uni-
lateral action.28 The application of the multilateral regime of the Convention
in Statistical Subareas 48.2, 48.3 and 48.4 could not even be set aside by
means of an hypothetical arrangement reached by Argentina and the United
Kingdom. Such an agreement would have no legal effect since in those waters
all Members enjoy the right to collect Antarctic marine living resources and to
conduct marine scientific research.
The System of Inspection determines that the Designating Member shall
communicate to the Secretariat the names of the designated Inspectors within
fourteen days. Within a month of the last day of the Commission meeting, a reg-
ister of certified designated Inspectors shall be forwarded by the Commission
to each Contracting Party.
In order to verify compliance with conservation measures adopted
under the Convention Inspectors from a vessel of the Designating Member,
duly bearing a special identity document issued by said Member in a form
approved by the Commission, are entitled within the Convention area to board

27 The so called dual inspections erode both the CCAMLR System of Inspection and the spirit
of the Antarctic Treaty System as well, as it was the case of the inspection of the Chilean
flagged vessel Antonio Lorenzo by a United Kingdom designated CCAMLR Inspector who
upon conclusion of the inspection, identified himself as a British inspector and arrested
the vessel because it lacked a British fishing license.
28 CCAMLR-XV Report of the Standing Committee on Observation and Inspection para-
graph 1.73 (Chile) and 1.74 (Argentina). The position of the United Kingdom is reflected
in paragraph 1.75.

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The System of Inspection of the CCAMLR Commission 219

fishing vessels flying the flag of a CCAMLR Member or of a Contracting Party

or a vessel flying the flag of a Member or of a Contracying Party carrying out
activities associated with fisheriers to determine whether, if the vessel is or
has been engaged in scientific research or harvesting of Antarctic marine liv-
ing resources or engaged in associated activities in the Convention Area,29 and
if these have been conducted in accordance with the standing Conservation
Measures. The Designating Member State and the Flag State may make
arrangements for scheduling embarkation and disembarkation of Inspectors.
While on board the inspected vessel the designated Inspector remains subject
solely to the jurisdiction of the Designating Member State and shall enjoy the
status of ship’s officer.

29 It is understood that vessels allowed to fish are those flagged to a Member State. At
CCAMLR-XVIII discussions took place as to whether a vessel flagged to a State Member
of the European Community which is not a Contracting Party to the Convention could
be authorised to fish in the Convention area. The European Community had submitted
a notification on behalf of Portugal (a non-Contracting Party) for new and exploratory
fishieries for Dissostichus spp. in several Subareas and Divisions in the Convention Area
(CCAMLR-XVIII Report paragraph 7.5). The European Community and its Members
States pointed out that the Member States had transferred to the Community their com-
petences on fisheries and that by virtue of such exclusive Community competence, the
Community was entitled and obliged to regulate internal and external fishing activities of
its Member States. In addition, they stated that vessels flying the flag of a Member State
in all regional fisheries organizations are considered to be Community vessels, whether or
not a specific provision to this effect is included in the respective Conventions. It was also
stated that all Community Member States, irrespective of whether those Members are
Members of CCAMLR or not, are bound by CCAMLR conservation and control measures
and that the European Community has responsibilities for the monitoring of activities
of its vessels with respect to CCAMLR obligations (CCAMLR XVIII-Report paragraphs
9.42–9.43). The majority of the Commission Members expressed the view that any fish-
ing by a Portuguese-flagged vessel would constitute an infringement to the Convention,
unless Portugal had acceeded to it prior to the initiation of its activities. It was also stated
that the obligations established by the Convention with respect to the Flag States could
not be delegated. Only Flag States can take on these obligations in the legal and political
context of the Antarctic Treaty System and all obligations that are not within the scope
of fisheries and the environment (CCAMLR-XVIII Report paragraphs 9.47–9.52). While
calling upon Portugal to favourably consider early accession to the Convention and
while admitting that a lack of consensus could have a negative impact on the whole
of the fisheries and the operation of the management and conservation regime, the
Commission adopted conservation measures as requested by the European Community,
in the understanding however that a precedent should not be set (CCAMLR-XVIII Report
paragraphs 9.36 to 9.41). In the fishing season following the CCAMLR-XVIII Meeting
Portuguese- flagged vessels were not present in the Convention area.

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220 mansi

The System of Inspection delves further into the topic in paragraphs V to

XIV of the System of Inspection by providing details concerning the develop-
ment of the inspection procedure, prosecution and the application of sanc-
tions by the Flag State.
Inspectors shall be knowledgeable about the activities to be inspected, the
Convention and the measures adopted by the Commission and shall be able
to speak the language of the Flag State. In case that the inspection is carried
out by an inspection team, interpretation by at least one of its members would
be required so that the inspection may be conducted in a satisfactory manner.
Ships carrying Inspectors shall fly a special flag or pennant approved by the
Commission to indicate that the Inspectors on board are carrying out inspec-
tion duties in accordance with the Inspection System. When the appropriate
signal in the International Code of Signals requesting to stop is given to a vessel
found in the Convention area which is fishing or conducting scientific research
on marine living resources or has the purpose to engage in those activities, the
Master of the vessel shall facilitate the Inspector and his assistants to board
the vessel.
Paragraph V authorises the presence of appropriate assistants who may
accompany designated Inspectors to board the vessel to be inspected. It should
be pointed out that, unless assistants are themselves also designated Inspectors
or Designated assistants, their presence on board the inspected vessel should
be restricted to facilitate boarding the vessel by the Inspectors and to facilitate
transfer back to the ship once the inspection has finalized.30 Otherwise their
presence on board would not be consistent with international law.

30 When boarding a vessel flagged to a Contracting Party to be inspected in the high seas in
the Convention Area Inspectors and assistants designated by the Designating Member
should refrain from carrying guns or any other kind of weapons unless prior authorisation
is given by the Flag State. As it has been stated above (see also 20 and 21) the CCAMLR
System of Inspection provides for an exception to the basic principle of international
law which establishes Flag State jurisdiction and control in the high seas on vessels fly-
ing its flag. Self protection based on domestic legislation could hardly be an argument
to be invoked to justify Designated Inspectors and assistants carrying weapons on board
during an inspection, in the context of an organization such as the Commission, which
is composed by only twenty five Members and in which the number of vessels to fish in
the Convention Area is small if compared with the situation existing in most regional
fisheries organisations. Therefore the presence of Designated Inspectors and assistants
carrying weapons on board an inspected vessel was deemed to be inconsistent with the
Convention as well as with the purposes and the principles of the Antarctic Treaty and
inconsistent with international law. In such cases the Flag State should be entitled to
instruct the Master of the vessel to refuse the inspection. Following an incident that

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The System of Inspection of the CCAMLR Commission 221

Inspectors may inspect catch, nets and other fishing gear as well as harvest-
ing and scientific research activities. They are also entitled to verify i.a. the
vessel’s documents, the VMS, the licence or the permit issued by the Flag State
and the presence on board of international scientific observers. Inspectors
shall also be allowed to access records and reports of catch and location data
as needed. They may also take photographs and video footage. The Master and
the crew of the inspected vessel shall provide appropriate assistance to the
Inspectors and refrain from interfering while inspections are in progress. In
turn, Inspectors should take care that inspection activities interfere to a min-
imum with the inspected vessels’s ongoing activities (System of Inspection,
paragraph VI).
If the vessel refuses to stop or the Master or the crew are reluctant to com-
ply with reasonable requests made by an Inspector, a special report shall be
prepared by the Inspector. The Flag State shall consider reports by designated
Inspectors as if they were reports by their own inspectors (paragraph VII).
A CCAMLR inspection report form shall be completed by the Inspector. In
his report the Inspector shall detail any alleged infringements by the vessel
of the conservation measures in force. He shall allow the Master to comment
about any aspect of the inspection. The Inspector shall sign the inspection
report form which may be also signed by the Master acknowledging receipt
of the report and include any comments that the Master might think fit. The
Master shall be provided a copy of the report before the Inspector leaves
the vessel. Within fifteen days of arrival to port, the Inspector shall provide a
copy of the report along with photographs and video footage to the Designating
Member. No later than fifteen days from reception, the Designating Member
shall forward two copies of the material to the CCAMLR Executive Secretary,
who shall forward a copy of the material to the Flag State within seven days.
Fifteen days thereafter the CCAMLR Executive Secretary shall transmit the
completed inspection form to Members (paragraph VIII).
If any observations or comments to the report are received from the Flag
State, or any information or report related to paragraph VII are received from
the Designating Member, the CCAMLR Executive Secretary shall forward that
information to Members within fifteen days following receipt (paragraph IX).

occurred in December 2006 in the southern sector of the South Indian Ocean when a
fishing vessel flagged to Uruguay was inspected by Designated Inspectors and assistants
carrying weapons on board, consensus on a review of the System of Inspection could not
be reached by the Commission at its CCAMLR-XXVI Meeting. See CCAMLR-XXVI Report
paragraph 13.80 and SCIC Report paragraph 2.13.

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According to paragraph X

A fishing vessel present in the area of application of the Convention shall

be presumed to have been engaged in scientific research, or harvesting,
of marine living resources (or to have been commencing such opera-
tions) if one or more of the following four indicators have been reported
by an inspector, and there is no information to the contrary: (a) fishing
gear was in use, had recently been in use or was ready to be used, . . .;
(b) fish which occur in the Convention Area were being processed or had
recently been processed, . . .; (c) fishing gear from the vessel was in the
water, . . .; (d) fish (or their products) which occur in the Convention Area
were stowed on board.

If in line with the inspection report there is evidence of infringement of mea-

sures under the Convention, the Flag State shall initiate proceedings in order
to prosecute the vessel, shall keep the Secretariat regularly informed about
the development of the prosecution and shall, if necessary, impose sanctions.
It should be pointed out that unless authorisation to the contrary is given by
the Flag State, an exception to the basic principle of Flag State jurisdiction is
not admitted. An explanation shall be provided by the Flag State when the
prosecution has not started or has proved to be unsuccessful (paragraphs XI
and XII).
Sanctions to be imposed by the Flag State shall be severe enough to ensure
compliance with CCAMLR conservation measures. The Flag State shall also
ensure that the vessel be prevented from carrying out fishing operations until
the sanctions imposed had been fully complied with (paragraphs XIII and XIV).
Overall, the CCAMLR System of Inspection is working well. As of 4 October
2013, 115 inspectors were designated by Members. Thirteen at-sea inspections
took place in Subareas 48.3 and 88.1 this year.
Some proposals meant to strengthen the System were unable to reach
consensus at the Commission because they were not found to be consistent
with international law and deviated from the principles and purposes of the
Antarctic Treaty. Therefore, proposals such as those envisaged to authorise
inspectors and their assistants to carry weapons on board inspected vessels
and proposals intended to legislate ratione materiae for areas outside the
Convention Area led to lengthy discussions at the Commission and were not
adopted.
CCAMLR has been presented occasionally as a body having similar objec-
tives to those of regional fisheries management organisations (RFMO). On the
contrary, far from being an RFMO, CCAMLR is recognized worlwide as a model

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The System of Inspection of the CCAMLR Commission 223

for the conservation of marine living resources.31 It is enough to read the

Performance Review of some RFMOs to conclude that they should not be an
example to be followed by CCAMLR.32 Since the objectives of some RFMOs are
the optimisation of economic benefits, actions taken in the context of those
organizations should not be transferred to the context of the Antarctic Treaty
System. CCAMLR objectives go beyond sustainable harvesting of resources,
while maintaining a clear understanding of the framework of the Antarctic
Treaty System within which CCAMLR operates.
An important contribution to the work of the CCAMLR System of Inspection
is provided by aerial surveillance missions, which have been carried out firstly
by New Zealand and more recently by Argentina. In 2013 fishing vessels were
identified in Subarea 48.1, all of them being CCAMLR licensed vessels.33
Port State inspections, which are regulated in Conservation measure
10-03, constitute another significant contribution to the CCAMLR System of
Inspection.34 Certainly, port inspections, which are limited to vessels carry-
ing Dissostichus spp. caught inside the Convention Area and landing in their
ports, should take into account the constraints imposed by international law.
Consistency with intenational law is paramount in a context in which port

31 Quite differently from RFMOs legal regimes, in the context of the Antarctic Treaty System
and due to the singularities of CCAMLR, quota allocations would be unacceptable since
they would imply an appropriation of the resources by the Commission. Such allocations
would undermine the standing not only of CCAMLR but of the whole Antarctic Treaty
System vis-à-vis the international community. In 1977, when the ATCM decided to call
a diplomatic conference to deal with Antarctic marine living resources, it clearly stated
that management should not be based on catch allocations (CCAMLR-XXXI paragraph
7.58).
32 See http://www.iccat.int/Documents/Other/PERFORM_%20REV_TRI_LINGUAL.pdf
(accessed 28 May 2014) Report of the 2008 Independent Performance Review of the
International Commission on the Conservation of Atlantic Tunas (ICCAT) Executive
Summary, p. 2. The Panel made the following general assessment of performance
of ICCAT: “The judgement of the international community will be based largely on how
ICCAT manages fisheries on bluefin tuna (BFT). ICCAT CPCs’ performance in managing
fisheries on bluefin tuna particularly in the eastern Atlantic and Mediterranean Sea is
widely regarded as an international disgrace and the international community which has
entrusted the management of this iconic species to ICCAT deserve better performance
from ICCAT than it has received to date. There are concerns about transparency within
ICCAT both in decision making and in resource allocation”.
33 CCAMLR-XXXI SCIC Report paragraphs 48–54.
34 Id., From 1 December 2012 to 31 July 2013, 73 port inspection reports were submitted
by seven Contracting Parties; for 2012/13, 93 port inspections reports were submitted by
nine Contracting Parties. 119 inspectors were designated for 2012/13.

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224 mansi

state jurisdiction does not stem from customary law but from regional or mul-
tilateral agreements.
In the framework of the Scheme of Scientific Observation both national and
international observers were deployed in the Convention Area on longliners,
trawl vessels fishing for icefish and for krill. Scientific observers, though they
are not inspectors may highly contribute to the work carried out by inspectors
on board. Their activities should not be interfered by inspectors.35
The Scheme of Scientific Observation, together with the System of
Inspection and the body of Conservation Measures agreed by the Commission
might be viewed as an alternative to the appropriation of the resources in the
high seas proposed by the development of regional fisheries management
organizations.

35 CCAMLR-XXXII paragraph 7.

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 Chapter 15

Problems and Controversies Concerning Freedom

of Navigation in the Arctic

Janusz Symonides

Introduction

Climate change and the rise of temperature leads to reduction of ice cover in
the Arctic. Whereas before 2000, it covered between 8 and 6.3 million km2,
in the years 2005–2010 was considerably reduced and embraced only 5.4 to
4.3 million km2. The record result in the first decade of the twenty-first century
was noted in 2007, when it amounted 4.3 million km2. Even more ice disap-
peared in 2012, when it shrank to 3.4 million km2.1
What are the consequences of the ice melting in the Arctic? They are mani-
fold. There are changes in the marine environment. New opportunities are cre-
ated for the exploitation of oil and gas resources and minerals. Larger areas of
water free from ice are opening new opportunities for fishing and giving an
access of renewable resources of flora and fauna. At the same time it creates a
risk to the biodiversity and the environment. Climate changes in the Arctic also
create new opportunities for the development of international shipping in the
region. The free of ice shipping routes through the Arctic raises the prospect of
a serious shortening of passages between Europe and Asia and North America.
This allows significant fuel savings and reduction of greenhouse gas emissions
into the atmosphere. Thin, a one-year ice cover opens more opportunities for
navigation for ships without the help of the icebreakers. There are increased
prospects for development of tourism. In a situation where the world and at
least some of its regions suffer from a limited access to potable water the Arctic
can help solve this problem being a huge reservoir of it. Computer simulations
show that transportation of icebergs to Africa and Europe and freightage of
drinking water by tankers to the regions where there is a deficit is already fea-
sible and cost-effective.
All Arctic States are involved in coastal shipping in areas around Greenland,
off the coast of North America and in the Barents Sea. Shipping, however,

1 Arctic Snow and Ice Data Center, Arctic Sea Ice News & Analysis, 2010, 2011, 2012; S. Foucart,
La banquise arctique a fondu comme jamais cet été, Le Monde, 20 septembre 2012.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_016

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226 symonides

carries with it a range of threats. It entails dangers of environmental pollution.

It raises the level of noise, disrupts natural migration routes of marine mam-
mals and also endangers the traditional style and way of life of indigenous peo-
ples. There is no doubt that these threats must be sincerely taken into account
and justify actions to prevent or at least reduce them.
Three shipping routes allow trans-arctic shipping and the connection
between the Atlantic and Pacific: the Northwest Passage through the Canadian
Archipelago, the North-East Passage along the coast of Siberia, called the
Northern Sea Route and the trans-polar passage through the North Pole. These
connections allow and substantially shorten the path between Europe and the
west coast of the United States and Canada, and between Europe and Asia in
comparison with traditional maritime routes through the Panama Canal or the
Suez Canal.2
A comparison of conditions posed by these three shipping routes allows to
put forward a thesis that the most convenient for international navigation, in
particular, for the transit between Europe and Asia is the Northern Sea Route.3
Whereas the Northwest Passage is sporadically used for navigation only during
the summer and mostly in the northern sectors mainly by the Canadian and
U.S. Coast Guard vessels, the Northern Sea Route is already being used through-
out the year by the Russian ships. Russia has the largest fleet of icebreakers,4
and since 1991 has opened this passage for international navigation. There is
also a meteorological and hydrological service and the navigation is easier in
comparison with the maze of the Canadian islands much worse mapped.
The Arctic countries have repeatedly stressed that the questions of inter-
national law concerning the region should be dealt in accordance with the

2 Length of shipping from Shanghai to Rotterdam is 25.588 km through the Panama Canal,
through the Suez Canal 19.530 km, 16.100 km through the Northwest Passage, 15.793 km
through the Northern Sea Route and only 13.630 km through the North Pole.
3 W. Østreng, K. Eger, B. Fløistad, A. Jørgensen-Dahl, L. Lothe, M. Mejlæder-Larsen,
T. Wergeland, Shipping In Arctic Waters. A Comparison of the Northeast, Northwest and Trans
Polar Passages (Berlin/Heidelberg: Springer/Praxis, 2013).
4 The acting Russian fleet includes four atomic icebreakers with two nuclear reactors 75
thousand horse power strong—‘Rossiya’, ‘Sovetsky Soyuz’, ‘Yamal’, ‘50 Let Pobedy’, two atomic
icebreakers with a single reactor power plant 40 thousand horse power strong—‘Taymir’ and
‘Vaygach’ and atomic lighter ‘Sevmorput’. Atomic icebreakers fleet has been providing regular
shipping of Russian and foreign cargoes along the Northern Sea Route since 1959. A new
atomic icebreaker is expected to commence its operation in 2018. Northern Sea Route Office,
Icebreakers Assistance, http://www.arctic-lio.com/nsr_icebreakersassistance, 2014-02-20.

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Freedom of Navigation in the Arctic 227

provisions of the Convention on the Law of the Sea 1982 (UNCLOS).5 They
are all parties to the Convention with the exception of the United States. The
Convention regulates shipping and defines the mutual rights and duties of
the coastal State and the international community depending on to the sea
area in which this is conducted. From this point of view, attention should be
paid to: internal waters, territorial sea, straits used for international naviga-
tion, the exclusive economic zone and the high sea.6 The interpretation of the
provisions concerning navigation in UNCLOS became the subject of dispute
and controversy resulting first of all from different meaning and understand-
ing given to Article 234.

Controversies Concerning the Application of Article 234 of the

Convention on the Law of the Sea

The only article of UNCLOS, which takes into account the particular situation
and the sensitivity of the Arctic marine environment is Article 234, called ‘the
Arctic’ or ‘the Canadian exclusion’. It was negotiated by Canada, the Soviet
Union and the United States and approved by the governments of these coun-
tries before placing it on the agenda of the Conference. Although the proposed
provision was met with a reservation of several marine countries, nevertheless,

5 For example: The Ilulissat Declaration, Arctic Ocean Conference, Ilulissat, Greenland, 27–29
May, 2008.
6 In the case of internal waters a coastal State has a full right to regulate navigation. Somewhat
different is the situation on the territorial sea where, in accordance with Chapter 3 of UNCLOS,
ships of all States enjoy the right of innocent passage. The passage cannot be prejudicial to
the peace, good order or security of the coastal State. The possibility of issuing laws and
regulations relating to innocent passage is also regulated in detail. UNCLOS also contains
provisions on how to determine the baseline which is the inner boundary of the territorial
sea. The Convention also contains provisions on straits used for international navigation, in
which the ships enjoy the right of transit passage. Ships in transit are required to proceed
without delay through the strait, refrain from any threat or use of force and from any other
activities not related to the passage and must conform to generally accepted international
rules on maritime safety and the prevention of pollution. States bordering straits should not
place obstacles to the transit passages. Laws and regulations issued by the State bordering
straits should not deprive, interfere or impede the right of the transit passage. In the exclusive
economic zone the freedom of navigation applies in the same way as on the high seas. This
is clearly confirmed by Article 58 of UNCLOS providing that to the exclusive economic zone
apply articles from 80 to 115 (regulating the status of the high seas) as long as they are not
inconsistent with the Part V of the Convention.

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228 symonides

the support of the two superpowers during the Cold War period was sufficient
for its final approval.
This article created the legal basis for unilateral actions which have been
taken earlier by Canada in 1970, when the parliament recognized the Canadian
jurisdiction to regulate navigation in the zone extending up to 100 miles from
its coasts to prevent marine pollution from ships. The adopted Arctic Waters
Pollution Act prohibits the discharge of oil and disposal of waste from ships
in this area. Extending the jurisdiction of the 100-nautical-mile zone before
accepting the UNCLOS concept of the exclusive economic zone was contro-
versial at that time.7
Article 234 provides:

Coastal States have the right to adopt and enforce non-discriminatory

laws and regulations for the prevention, reduction and control of marine
pollution from vessels in ice-covered areas within the limits of the exclu-
sive economic zone, where particularly severe climatic conditions and
the presence of ice covering such areas for most of the year create
obstructions or exceptional hazards to navigation, and pollution of the
marine environment could cause major harm to or irreversible distur-
bance of the ecological balance. Such laws and regulations shall have due
regard to navigation and the protection and preservation of the marine
environment based on the best available scientific evidence.

A detailed analysis of the wording of Article 234 allows to identify a number of

doubts and ambiguities concerning the scope and rights which it gives to the
coastal States. There is a question how to define areas where the presence of
ice creates obstructions to navigation. Another unclear issue is a degree of cov-
erage or the occurrence of ice. It refers to the ice-covered areas ‘for most of the
year’. Can a regulation by coastal States be justified only when there is more
than six months occurrence of compact ice cover or whether a sporadic and
periodic appearance of ice throughout the year is sufficient? Does the adop-
tion of a special legislation for the whole exclusive economic zone is justified
when ice covers only a part of it? One can observe that not all Arctic countries
satisfy the requirements necessary for the adoption of special legislation and

7 B.K. Carnahan, “The Canadian Arctic Water Pollution Act: An Analysis”, Louisiana Law
Review, vol. 31, no 4 (June 1971): 631. The adopted Act met with protests, especially from the
United States, which have recognized it as an attempt to submit claims to the maritime areas.
“U.S. Opposes Unilateral Extension by Canada of High Seas Jurisdiction”, 62 Departament of
State Bulletin (1970): 610–611.

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Freedom of Navigation in the Arctic 229

regulations of the presence for most of the year of the ice cover. It applies to
Iceland, Sweden and Finland.8 Even in a case of Norway a question concerning
the occurrence of the continuous ice cover most of the year and the existence
exceptional danger to shipping on the part of the Barents Sea can be debated.
What does a phrase “creating obstructions or exceptional hazards to naviga-
tion” mean? Does it justify the special regulations concerning icebreakers and
ships of high polar class which are not really endangered by the occurrence of
ice, particularly thin one year ice? Can a special legislation apply to warships?
Further doubts concern the issue whether the adopted regulations may
relate only to the limiting or excluding the possibility of pollution from ships or
can they impose requirements concerning safety of ships, their construction,
equipment and crewing.9 There is no clarification if the provisions of Article
234 give larger range of rights to a coastal State in the exclusive economic zone
than it has in the territorial sea in case of innocent passage. It stresses also that
laws and regulations of a coastal State should be based on the best available
scientific evidence and have due regard to navigation. How these reservations
should be understood in practice? What institutions are entitled to make such
evaluation—national or international? What are the implications of having
due to regard to navigation? The possibility of a unilateral adoption of laws and
regulations on navigation in the exclusive economic zone without an explicit
requirement of their acceptance by the International Maritime Organization
leads towards undermining of uniformity of requirements and standards con-
cerning international navigation.
In June 2010, Canada launched the obligatory system NORDREG (The
Northern Canada Vessel Traffic Services Zone Regulations) implementing
the requirements for vessels to give a serious of mandatory information con-
cerning navigation. Notification, including a daily sailing plan and a position
report of a vessel, is obligatory for vessels of 300 gross tonnage or more sailing
through the Canadian waters. If the foreign vessel is in the area without an
earlier registration, it would be detained in the first port. Fines can be up to
$100,000. per person or vessel and/or imprisonment for up to one year.10

8 Iceland in its bill of 2004 on prevention of the marine and coastal pollution doesn’t refer
to the special entitlements resulting from Article 234 of UNCLOS and this bill is consis-
tent with the MARPOL provisions. Norway has not a specific legislation which provides
the implementation of Article 234.
9 European Commission, Legal aspects of Arctic shipping, Summary Report (European
Union: Publication Office of the European Union, 2010), 13.
10 M. Bennett, “New Canadian Arctic Shipping rules may contravene international law”,
http://arctic.foreignpolicy.blogs.com/2010/07/09/new-canadian-arctic-shipping-rules.

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230 symonides

A number of countries, inter alia, the United States, Germany, Singapore

and also the European Union immediately contested the mandatory nature of
NORDREG, by diplomatic notes as well as during the sessions of the Maritime
Safety Committee of IMO. Evaluating positively the Canadian policy aiming at
the protection of the Arctic marine environment same time they firmly criti-
cized unilateral steps taken by Canada.11 In its response Canada stressed that
the mandatory registration of vessel in the NORDREG system would enhance
safety of ships, crews, passengers in the Arctic waters seeing that search and
rescue would be much easier with knowledge of a position of registered
vessels.12
The opposition to the mandatory reports is formulated not only by coun-
tries but also by shipping companies. The Baltic and International Maritime
Council (BIMCO) representing 2/3 ship-owners sent a letter to the Canadian
authorities declaring an opposition to these regulations and recognizing them
as a violation of freedom of navigation. BIMCO stated that before the entry
into force of these regulations, Canada should obtain an approval from IMO.
Canada is the only Arctic State which imposed the mandatory system of
information of an entry, a daily sailing plan report, deviation and position on
the Arctic waters without the IMO approval. The legislation of Canada can
be considered as the exercise of sovereign rights concerning shipping in the
exclusive economic zone, which raises serious doubts as to compliance with
the provisions of UNCLOS. In this context one can notice that on its 91st ses-
sion in November 2012 the Maritime Safety Committee of IMO adopted a new
mandatory Ship Reporting System in the Barents area proposed by Norway
and Russia. This system entered into force on the 1st June, 2013. It requires the
participation of all ships with a gross tonnage of 5,000 and above, all tankers,
all ships carrying hazardous cargoes and any ship restricted in their ability to
manoeuvre.

Towards the Adoption of the Mandatory Polar Code

Ships operating in the Arctic waters are exposed to particular and exceptional
dangers. The weather conditions, fogs and storms, a lack of maps, serious

11 A. Raspotnik, “Positive Unilateralism—An Effective Strategy to Protect the Canadian

Arctic Environment or a Subtle Approach to Establish Sovereignty?”, The Arctic Institute,
Center for Circumpolar Security Studies, Friday, December 23 (2011), www.thearctic
circumpolarinstitute.org/2011/12/92743–positive-unilateralism-effective.htm.
12 “Vessel Traffic Reporting Arctic Canada Traffic Zone” (NORDREG), Canadian Coast
Guard, www.ccg-gcc.gc.ca.

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Freedom of Navigation in the Arctic 231

limitation to radio and satellite communication and a lack of infrastructure in

Arctic put the vessel’s crew in front of the extreme challenges. Low tempera-
tures cause frost of on-board equipment, expose it to the frequent breakdowns
and limit its operating efficiency. Although there is a lot of binding norms in
the law of the sea aiming at the ensuring the safety of ships, crew and pas-
sengers, as well as, a considerable number of codes, guidelines and recom-
mendations but they are not adopted specifically for shipping in the Arctic.
Certainly, respecting these general norms and standards has a positive impact
on increasing safety of shipping in this region.13
So far the only document which applies directly to the Arctic is the non-
binding the IMO Guidelines for Ships Operating in Arctic Ice-Covered Waters.14
The Guidelines were adopted by two IMO organs: the Maritime Safety
Committee and The Marine Environment Protection Committee in October
and December 2002. The both Committees adopted the Guidelines acknowl-
edging that the polar environment imposes additional demands on ship operat-
ing in the Arctic waters beyond the IMO existing requirements. The Guidelines
applies to ships which are subjects to the SOLAS Convention including pas-
sengers’ ships and vessels of 500 gross tonnage or more. The Iceland waters
are not covered by the provisions of the Guidelines. Their Preamble (P – 1.2)
explains that the Guidelines are intended to address those additional provi-
sions deemed necessary for consideration beyond existing requirements of the
SOLAS Convention, in order to take into account the climatic conditions of
Arctic ice-covered waters. They are not binding and they should be interpreted
as recommendations. Their aim is to promote the safety of navigation and to
prevent pollution from ships in Arctic. The Guidelines are divided into four
parts raising the following questions: a) construction of ships; b) equipment;
c) operation and d) environment protection and damage control.15
It is worth to note a suggestion to harmonize polar class ships. The Guidelines
refer to the proposed by the International Association of Classification Societies
Unified Requirements for Polar Ships. The adopted and suggested description

13 First of all one can mention the International Convention for the Safety of Life at
Sea, (SOLAS, 1974), with two Protocols (1978 and 1988), the Convention on the Inter-
national Regulations for Preventing Collisions at Sea (COLREGS, 1972), the International
Convention on Maritime Search and Rescue (SAR, 1979) and the International Conven-
tion on Load Lines (1966). It is worth to note that all of the Arctic countries are bound by
their provisions.
14 International Maritime Organization, “Guidelines for Ship Operating in Arctic Ice-
covered Waters”, MSC/Cire.1056, MEPC/Cire.399 (December 2002): 23.
15 An exhaustive description of the Guidelines gives, Ø. Jensen, “The Imo Guidelines
For Ships Operating”, in Arctic Ice-Covered Waters, From Voluntary To Moderatory Tool For
Navigation Safety And Environmental Protection?, FNI Report 2/2007. Lysaker, FNI, 2007.

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divides ships into seven classes—from PC 1 to PC 7, depending on shipping in

different ice conditions.16
The Guidelines adopted by IMO were criticized because of the existing defi-
ciencies and ambiguities.17 A lack of details concerning the preparation, the
necessary experience and practice of the polar pilots as well as the utilization
of the sprays and chemicals used for the ice eradication of a ship equipment
were pointed out. There was noted that the Guidelines should apply not only
to the Arctic but due to the similarity of shipping they should also include the
Antarctic.
According to the request formulated by the Antarctic Treaty Consultative
Meeting (ATCM) in 2004 and addressed to IMO, to prepare guidelines for
ships operating in the Arctic and the Antarctic,18 IMO started work on such a
document in 2008. In December 2009, IMO adopted the Guidelines for Ships
Operating in Polar Areas covering the Arctic waters as well as the Antarctic19
They entered into force on the 1st January, 2011. The Guidelines of 2009 apply
in effect the recommendations of 2002 for the Arctic, to the Antarctic. The
Preamble explains that whilst the Arctic and the Antarctic waters have a num-
ber of similarities, there are also significant differences. “The Arctic is an ocean

16 The first five Polar Classes ships should have an ability of a year-round operation in all
Arctic waters but in different ice conditions. The first Polar Class ship (PC 1) has a pos-
sibility of a year-round operation in all Arctic iced-covered waters. The succeeding Polar
Classes ships should have an ability of a year-round operation in moderate multi-year ice
conditions (PC 2), a year-round operation in second-year ice which may include multi-
year ice inclusions (PC 3), a year-round operation in thick first-year ice which may include
old ice inclusions (PC 4), a year-round operation in medium first-year ice which may
include old ice inclusions (PC 5). The last two classes should have an ability of a summer/
autumn operation in medium first-year ice which may include old ice inclusions (PC 6)
and a summer/autumn operation in thin first-year ice with which may include old ice
inclusions (PC 7). All Polar Class ships should have structural arrangements to resist dam-
ages as coating breakdown provoked by the ice. The materials presenting the danger of
pollution cannot be load in these parts of ships which are exposed to the risk of damage.
All ships should be equipped with equipment and installations minimizing the danger
of pollution of the Arctic waters. The navigation, communication and rescue equipment
should take into account the Arctic conditions. It is worth to note an idea of taking the
polar pilots on the board.
17 Arctic Council, Arctic Marine Shipping Assessment Governance of Arctic Shipping (2009),
AMSA Executive Summary and Recommendations, 57.
18 ATCM Decision 4, “Guidelines for Ships Operating in Arctic and Antarctic Ice-covered
Waters” (2004).
19 A 26/Res.1024, Adopted on 2 December 2009, Agenda Item 10, 18 January 2010.

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Freedom of Navigation in the Arctic 233

surrounded by continents, while the Antarctic is a continent surrounded by an

ocean”. Whereas there is a significant amount of multi-year ice in the Arctic, in
the Antarctic multi-year ice which is dispersed by permanent gyres in its two
major seas: the Weddell and the Ross.
During the drafting the Guidelines for Ships Operating in Polar Areas
the marine States together with those participating in the meetings of the
Antarctic Treaty Consultative Committee20 gave the strong support to the idea
of an elaboration and adoption of mandatory guidelines—a legally binding
instrument which would replace the recommendatory Guidelines of 2009. In
February 2010, IMO started the elaboration of the Polar Code project embrac-
ing the both, the Arctic and the Antarctic. It was expected that the drafting
would last three years. Now, 2014 is mentioned as a date for the conclusion of
the preparation of the draft.
An organ conducting the works is the IMO Sub-committee of Ship Design
and Equipment and the Correspondence Group.21 The Code will address:
ships design; their construction and equipment; problems linked with the
operational aspects and preparation of crew, search and rescue as well as
the questions of the protection of the unique marine environment and the eco-
systems of polar regions. The Sub-committee presents its works to the other
sub-committees and committees of IMO, especially to the Marine Environment
Protection Committee and the Maritime Safety Committee which are will
adopt in a special resolution the project of Code which will be incorporated to
relevant parts of the IMO conventions.22

A Legal Status of the Northern Sea Route

The idea of searching for a sea route to establish a direct maritime connection
between Russia and China is linked with the name of the Russian diplomat
R. Gerasimov who for the first time drew attention to this possibility in the

20 Resolution 8 (2009), ATCM XXXII–CEP XII, Baltimore. Antarctic Shipping Code. Adopted
17/04/2009.
21 DE 55(12)1. “Development of a Mandatory Code for Ships Operating in Polar Waters”,
Report of the Correspondence Group, 17 December 2010.
22 The subsequent reports: Sub-Committee on Ship Design and Equipment (DE)
53rd session, 22–26 February 2010; 54th session, 25–29 October 2010; 56th session,
13–17 February 2012, 57th session, 18–22 March 2013.

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16th century.23 The first complete passage of this route from west to east took
place in 19th century.
The Russian Revolution of 1917 created new possibilities or rather the neces-
sity of using the Northern Sea Route. Blockade and isolation of the Soviet
Russia by western powers made it imperative to use this route. Besides
being the shortest communication line between the western and far eastern
regions of the country, it was the only seaway completely under the Soviet
jurisdiction.24 The name of the Northern Sea Route replaced the old one—the
North East Passage. In 1933 the Northern Sea Route was officially opened and
commercial exploitation began in 1935.
Adopted in 1990 the rules of navigation on the seaways of the Northern
Sea Route25 entered into force on the 1st July, 1991. In 1995, Russia adopted a
guide for the shipping in the Northern Sea Route as well as the rules concern-
ing construction and equipment of ships using this sea line. In their first part,
the rules explain that the Northern Sea Route is the national transportation
route, which is situated within the internal waters, territorial sea and exclusive
economic zone. It is also recognized as the national route in the in the law of
the Russian Federation of 1998, concerning the inland waters, territorial sea
and exclusive economic zone as well as in the law on the exclusive economic
zone. The rules state that the Northern Sea Route is open to navigation on a
non-discriminatory basis for the vessels from all countries. They aim at the
ensuring a safe navigation and preventing, reducing and keeping under control
the marine environment pollution from vessels necessary since severe climatic
conditions that exist in the Arctic regions and the presence of ice during the
larger part of the year create obstacles and increased danger for navigation.
The owner or the master of а vessel intending to navigate through the
Northern Sea Route submits to the Administration а notification and а request
for guiding through the Northern Sea Route in compliance with form and
deadlines not earlier than 120 calendar days and not later than 15 working days
before the estimated date of arrival of a vessel in the Northern Sea Route water

23 Northern Sea Route, Wikipedia, http://en.wikipedia.org/wiki/Northern_Sea_Route; North-

ern Sea Route, VisWiki, http://www.viswiki.com/en/Northern_Sea_Route.
24 The Bolsheviks from the beginning recognized the necessity of the development of the
Northern Sea Route. In 1921 a decision was taken about creating the Institute of Research
in order to conduct studies on the seas rivers and islands of the Arctic coast of the Soviet
Russia.
25 These Regulations were worked out in accordance with the USSR Council of Ministers
Decision No. 565 of 1 June 1990 and adopted 14 September 1990. The text was published
and it is available in the Internet, “Rules of Navigation. Regulations for Navigation on
the Sea Ways of the Northern Sea Route”. Approved by the USSR Minister of Merchant
Marine, 14 September 1990.

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Freedom of Navigation in the Arctic 235

area.26 The Administration considers the application within 10 working days

since its reception for consideration. It can also require an inspection of a ves-
sel as a condition of acceptance of a passage. An inspection can take a place
in Murmansk, Nakhodka and Provideniya, or in a another port adequate to
an ownership. Тhe guiding of vessels through the Northern Sea Route shall be
performed during the navigational period, the beginning and the end of which
shall be determined by the Administration.
The vessels due to the different conditions can use one of the following types
of guiding: 1) guiding from shore along recommended routes up to а certain
geographic point; 2) airplane, or helicopter guiding; 3) conventional pilotage;
4) icebreaker guiding and 5) icebreaker guiding combined with conventional
pilotage of vessels. The vessels can operate separately as well as in convoys.
As stated by the regulations the mandatory icebreaker guiding of ves-
sels was established in the Vilkitsky Strait, the Shokalskiy Straits, the Dmitry
Laptev Strait and the Sannikov Strait due to unfavorable navigational situation
and ice conditions and for the ensuring safe navigation. In other regions, the
Administration decides what kind of assistance can be chosen. In a case of
unfavorable ice, navigation, hydrographic and causing а threat to the ecologi-
cal situation conditions, a representative of the Administration mау carry out
an inspection of а vessel while she navigates the Northern Sea Route. It can
suspend navigation of vessels on specific parts of the Northern Sea Route for
the period during which exist the circumstances that have caused such а mea-
sure. If а vessel violates provisions of the regulation she can be removed from
the route. The master of a vessel navigating the Northern Sea Route is obliged
to inform the authorities about all kinds of pollution, affected by or detected
by her.
The Russian rules of the 1990s did not mention the question of warships
and the State ships enjoying the immunities as well as the problem of using
the Northern Sea Route for the purpose of tourism. The requirements con-
cerning the pollution from ships are more demanding than those provided
in the Convention for the Prevention of the Pollution of Ships (MARPOL).
The doubts are raised by the compulsory charges for the icebreakers support
regardless of their use. Additionally, the amount of charges is also discussed.
There no doubts that their reduction will have a positive impact on increasing
the competitiveness and attractiveness of this route.27

26 Northern Sea Route Information Office, “How to Get Permit”, http://www.arctic-lio.com/

nsr_howtogetpermit, 2014-02-20.
27 “Northern Sea Route should not be expensive”, Barents Observer (2010), Barents_Observer.
com, http://www.barentsobserver.custopublish.com/northern-sea-route-should-not-
be-exp . . .

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The adopted at the beginning of the 1990s the rules of navigation in the
Northern Sea Route required a necessary amendment and elimination of exist-
ing gaps. Undertaken by Duma at the end of 20th century the elaboration of a
new law concerning the legal status of this route lasted a very long time28 and
ended by the adoption of the federal law No 132 in June and signed by V. Putin
on 28 July, 2012.29 The law introduced the amendments to the earlier rules
regulating the navigation in this route keeping the most of the existing solu-
tions and only in few questions changed previous norms, better adapting them
to increasing maritime traffic on this route.
The new law confirms that the Northern Sea Route is historically emerged
national transportation route of the Russian Federation open to the ships of
all flags without any discrimination. It covers the water area adjacent to the
Northern coast of the Russia, comprising the internal waters, the territorial
sea, the contiguous zone and the exclusive economic zone. It extends from the
Bering Strait and the outermost eastern edge of the coast to the archipelago of
Novaya Zemlya in the west. The Barents Sea with Murmansk is excluded from
its area. An important novelty is the creation of a uniform, one Administration
with headquarter in Moscow and elimination of the two Marine Operation
Headquarters. The Administration started its activity at the beginning of the
shipping season in 2013.30
There are strict regulations concerning the liability for environmental dam-
ages caused by the vessel during a passage under the responsibility of the
ownership. Without the appropriate documentation confirming the posses-
sion of the adequate insurance and financial security, a vessel will not obtain
a permission to navigate. A very important change is a clear indication that a

28 The project presented in 1999 by a working group chaired by the academics A.G. Granberg
and A.N. Czilingarow provided obtaining the authorization for the passage of warships as
well as for the nuclear-powered ships and ships carrying nuclear or other inherently dan-
gerous or noxious substances. A.L. Kolodkin, V.N. Gutsuliak, V. Bobrowa, The World Ocean:
International Legal Regime, trans. W.E. Buttler (The Hague: International Publishing
Eleven, 2010). The prolongation of the works indicated the existing internal divergence
on the issue of the restriction of freedom of navigation of warships and the ships of spe-
cial characteristics (tankers, nuclear-powered ships and ships carrying nuclear or other
inherently dangerous or noxious substances).
29 “Vladimir Putin sign law on the Northern Sea Route”, arctic info, 30 July 2012, http://www
.arctic.info.com/News/Page/vladimirputin-signs-law-on-the-northern-sea-route.
30 Recent Russian legislation is analyzed by J. Symonides, M. Symonides, “Les perspectives
d’utilization de la route maritime du nord pour la navigacion internationale : enjeux et
problèmes”, Revista Europea de Derecho de la Navegación Marítima y Aeronáutica, no 30
(diciembre 2013): 1–23.

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Freedom of Navigation in the Arctic 237

payment for the icebreakers support, ice pilotage and the vessel handling is
based on the amount of services actually delivered. It is the fulfillment of the
previously formulated demands.
The Russian legislation concerning the Northern Sea Route does not still
regulate the issue of a passage of warships and the ships with special charac-
teristics (tankers, nuclear-powered ships and ships carrying nuclear or other
inherently dangerous or noxious substances). The approved by the President
Putin on 20 February, 2013, strategy of the development of the region also
refers to the Northern Sea Route.31 It clearly confirms the necessity of further
improvement of the legal basis concerning its management especially a pay-
ment for a service as well as the compulsory insurance system.

The Controversy over the Legal Status of the Northwest Passage

The Northwest Passage includes several seaways passing through the Canadian
Arctic Archipelago. It connects the Atlantic and Pacific Oceans allowing the
shortening of the route compared to a passage through the Panama Canal or a
circumnavigation of the Cape Horn.
The first passage noted in the literature took place in 1905 and it was Roald
Amundsen,32 the Norwegian explorer, who sailed through the Northwest
Passage in three years journey. Whereas the first transit passage during a single
season and in the both directions took place in the 40s of the 20th century. It
was achieved by the Canadian ship RCMPV St. Roch.
The legal status of the Northwest Passage became a subject of the dispute
between Canada and the United States in the late seventies and eighties. In
the current phase of the dispute the United States considers this route to be
an international straits which legal regime is under the UNCLOS provisions on
the transit passage in the international straits, while Canada stresses that the
passage constitutes its internal waters under its full national sovereignty, and
the using of this seaway depends on its acceptance. The United States do not
challenge the sovereignty of Canada over the islands. This dispute concerns
the question if the right of transit passage exists on these waters and whether
it can be exercised without the Canadian permission. In 1969, the U.S. specially
reinforced tanker SS Manhattan, made the passage to test the viability of the

31 Text in the Russian language: http://prawitielstwo/ff/docs/22846.

32 http://www.fromheim.com/Amundsen/NWP/NWpassage.html.

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passage for the transport of oil. A few years later in 1985, the same was made
by the U.S. Coast Guard icebreaker Polar Sea.33
In 1985 Canada applied a system of straight lines for determining the base-
line of the territorial sea, in such a way that the archipelago was placed on
its inner side, and thus allowing the recognition of these waters as internal.34
The U.S. protest concerning this decision was supported by the European
Commission of the European Union which recognized that Canadian position
relating the system of straight lines was incompatible with the international
law. The Commission paid particular attention to ‘unusual’ lengths of several
of these lines exceeding limits allowed by UNCLOS with regard to the delimita-
tion of archipelagos.35
Despite of the existing dispute, the United States and Canada signed in 1988,
an agreement on the Arctic cooperation. It provides that all navigation by the
U.S. icebreakers within waters claimed by Canada to be internal will be under-
taken with the Canadian consent. Nevertheless, the both Parties declared that
nothing in this agreement nor any practice there under affects the respec-
tive positions of the United States and of Canada on the law of the sea in this
or other maritime areas or their respective positions regarding third parties.36
In other words, the States confirmed their positions and agreed to continue
their dispute which boils down to the question whether the Northwest Passage
can be recognized as the strait used for international navigation.
The Convention explains in Article 37 that a conception of the transit
passage applies to “. . . the straits which are used for international naviga-
tion between one part of the high seas or an exclusive economic zone and

33 More on this issue: G. Killaby, “Great Game In a Cold Climate: Canada’s Arctic Sovereignty
in Question”, text: http://www.journal.forces.ge.ca/vo6/no4/north-nord-01-eng.asp.
34 As Article 8 of UNCLOS states: “. . . waters on the landward side of the baseline of the ter-
ritorial sea form part of the internal waters of the State”.
35 In its Article 47 para. 2 the Convention provides: “The length of such baselines shall not
exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines
enclosing any archipelago may exceed that length, up to a maximum length of 125 nau-
tical miles”. The thesis of the applicability by Canada of the system of straight lines to
determine the baseline and the limit of the internal waters and territorial sea has been
also questioned by reference to article 5 of UNCLOS which states: “. . . the normal baseline
for measuring the breadth of the territorial sea is the low-water line along the coast . . .”.
36 Text: “Canada Treaty Information, Agreement between the Government of Canada and
the Government of the United States of America on Arctic cooperation”, E 101701 – CTS
19888, No. 29, treaty-accord.gc.ca.

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Freedom of Navigation in the Arctic 239

another part of the high seas or an exclusive economic zone”.37 This condi-
tion to connect a part of the high seas or/and an exclusive economic zone is
fulfilled. However, it is not clear whether this geographic criterion is sufficient
for the recognition of straits as international, or should be supplemented by
a functional one—long-lasting use for international shipping. UNCLOS does
not explain this question. In that situation, Canada states that this functional
criterion is not satisfied.38 The occasional use of this sea route and the passages
of the U.S. vessels cannot be recognized as a prove of a long-term practice.
However, this condition for obvious reasons could not be fulfilled by a strait
which had been frozen. Now in time of the climatic change the possibilities of
its present and potential use exist. It shouldn’t be forgotten that the Northwest
Passage has been used for the military navigation by the American nuclear-
powered submarines. In 1957, the USS Nautilius was the first vessel to complete
a submerged transit through this passage and there are indications that the
similar transit took place in 2005.39
There is also another aspect to be considered. If the islands are treated as a
whole, unified archipelago, the question is, whether in such a case the UNCLOS
provisions concerning the right of archipelagic sea lanes passage should not be
applied. The Convention defines the right of archipelago passage as: “. . . the
rights of navigation and overflight in the normal mode solely for the purpose
of continuous, expeditious and unobstructed transit between one part of the
high seas or an exclusive economic zone and another part of the high seas or
an exclusive economic zone”.40
In the debate on the legal status of the Northwest Passage, one can also
remember that Article 8 of the Convention is applicable to the debate con-
cerning the status of the Canadian internal waters. In the point 2 it states:
“Where the establishment of a straight baseline (. . .) has the effect of

37 Excellent presentation of the concept of the transit passage is given by H. Caminos,

V. Cogliaty-Bantz, The Legal Regime of Straits. Contemporary Challeges and Solutions
(Cambridge: Cambridge University Press, 2014).
38 Canada refers to the ICJ judgment concerning the Corfu Strait where the Court indicated
two elements necessary to recognize a strait to be international—geographical and func-
tional situation. It is worth to note that the judicial decisions of the ICJ does not establish
the rules of law. In the meaning of Article 38 of the Statute of the International Court of
Justice judicial decisions are only the subsidiary means for the determination of rules
of law.
39 N. Loukacheva, “Legal Challenges in the Arctic”, a position paper presented for the 4th
NRF Open Meeting in Oulu, Finland and Lulea, Sweden, October 5–8 (2006), 4.
40 Article 53 of UNCLOS.

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enclosing as internal waters areas which had not previously been considered
as such, a right of innocent passage as provided in this Convention shall exist
in those waters”.41

Concluding Remarks

The question of the respect of UNCLOS in the Arctic is the subject of the inter-
national legal disputes. Controversies concern not only of the legal status of
the Northwest Passage and the Northern Sea Route but also the methods
of drawing the baselines, the regime of passage through straits as well as the
interpretation of Article 234 and the limitation of freedom of navigation in
the exclusive economic zone.
Not all Arctic States adopt a legislation which can be qualified as not being
in line with freedom of navigation. The reservations in the specialized litera-
ture are mainly addressed to Canada and to a lesser degree to Russia. A staunch
defender of the principle of freedom of navigation in the Arctic is the United
States. The practice and the position of other Arctic States: Denmark, Finland,
Iceland, Norway and Sweden, is in accordance with the provisions of UNCLOS,
MARPOL and SOLAS.
Studies and simulations conducted by the University of California42 allow
to formulate a thesis that between 2040 and 2059 not only the two northern
sea routes but the whole area of the Arctic Ocean might be completely free of
ice during the summer which means the disappearance of the multi-year ice
thus allowing a relatively free use of the routes leading through the North Pole,
even by vessels without special ice reinforcement. The situation will be similar
to this which currently exists in the Baltic Sea. The possibilities of using the
sea route via the North Pole even in a nowadays is proved by the passage of
the Chinese icebreaker Xuelong in 2012 and in both directions.43

41 The system of straight lines was applied by Canada only in the mid-eighties of 20th
century. Until then the Northwest Passage was not considered to be the internal waters.
Among the arguments which are supposed to convinced the international opinion about
the validity of application to the Northwest Passage a concept of the internal waters, there
is a thesis that the Canadian control over the passage protects the international commu-
nity from the possibility of a terrorist attack and the international organized crimes.
42 N. Vanderklippe, “Study Predicts Arctic Shipping Quickly Becoming Reality”, Globe and
Mail (March 2013).
43 T. Petersen, “Chinese icebreaker concludes Arctic Voyage”, Barents Observer (September
2012).

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Freedom of Navigation in the Arctic 241

Problems and disputes concerning navigation in the Arctic result largely

from differences in the interpretation of Article 234 of UNCLOS. There is no
doubt that this Article is one of the least precise and the most unclear provi-
sion which one can find in UNCLOS. The paradox is that it was adopted with
the support of the United States which probably were not fully aware of the
consequences of acceptance of the Canadian initiative. Anyway, at the turn of
the seventies and eighties, during the Third Conference on the Law of the Sea
a perspective of the international shipping in the Arctic did not seem real and
was not taken seriously into account.
An important step to unify the positions of the all Arctic States and the entire
international community on the issues of navigation in the Arctic would be an
adoption of the mandatory Polar Code. From the point of view of safety of
navigation in the Arctic a significant progress was achieved with the adoption
in 2011, the agreement on search and rescue in the region.44 Russia according
to this agreement provides the establishment of ten rescue centers along the
coast of Siberia till 2015.45
What are the prospects for development of navigation in the Arctic? Can
justified concerns linked with possible damage which navigation may cause
to the vulnerable Arctic environment stop its development? It does not seem
probable. The sea routes passing through the Arctic are extremely important
for the connection between Europe and Asia. The general comparison of pros
and cons arguments speaks in favor of its development. The positive effects
of the significant shortening of the distance between Europe and Asia, the
shorten time of sailing compared to the shipping through the Suez Canal or
Panama Canal, the fuel savings, and thus the lower greenhouse gas emissions
brings obvious economic advantages.
A danger of the marine accidents and pollution though significant, still is
lower than the dangers caused by the extracting of oil. Threats exist primarily
from the catastrophes and the carriage of oil. They are relatively lower during
the carriage of bulk cargo and containers. The ships better equipped and pro-
tected are already constructed and used. An increasing number of new ports

44 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the

Arctic, signed on May 12, 2011 by the eight Arctic States. The agreement entered into
force on January 19, 2013. A depositary of the agreement is Canada. It is the first agree-
ment prepared and adopted by the States of the Arctic Council. It establishes the areas of
responsibility for search and rescue of the all signatories and establishes the rules of the
international cooperation.
45 T. Pettersen, “Russia to have ten Arctic rescue centers by 2015”, Barents Observer
(November 2011).

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242 symonides

and ports facilities make navigation easier. Masters, polar pilots and crew are
getting more experience and practice in the Arctic shipping.
Is the international shipping a threat to the traditional way of life of indig-
enous peoples of the Arctic? Are they strongly opposed to it? The answer
to this question is not so clear. The interests of the various peoples differ.
For the Canadian Inuit the shipping no doubt can be considered as a sig-
nificant threat but for indigenous peoples in Russia it creates a chance for a
better life linked with an employment in ports and their infrastructure. For the
Sami who breeds reindeers the shipping has not so important impact on their
lives. For Greenlanders shipping is a condition sine qua non for the economic
development.
The use of the Northern Sea Route for the Asian countries, especially for
China but also for Japan, South Korea and India, becomes important for the
economic, strategic and geopolitical reasons. Possible incidents and con-
flicts linked with territorial disputes and tensions in Asia and in the Pacific
region can lead to a blocking the transit through the Strait of Malacca and
the Southern Route. One can add the limited capacity of the Suez Canal and the
acts of piracy nearby Africa. Securing alternative lines of supply for the energy
and mineral resources is for many Asian countries the necessity. Therefore
the process of a gradual opening of the Arctic to the shipping not only ‘inter-
nal’ and ‘infra-arctic’ but also ‘trans-arctic’ and ‘transit’ or even ‘trans-polar’ is
inevitable.46 In consequence the problem of the maintaining the principles of
freedom of navigation in the Arctic has to be viewed not only as a problem
of the Arctic States but it becomes a global question of primary importance
for the whole international community. In this situation one can assume that
the pressure and interests in the maintaining and guarantee of freedom of
navigation in the Arctic will increase and the actions aiming at its limitation
will be subjected to the increasingly strong criticism and objections.47

46 Suffice to observe that the transit passage along the Northern Sea route has increased
from 4 vessels in 2010, 34 in 2011, 46 in 2012 to 71 in 2013.
47 J. Symonides, M. Symonides, “L’Arctique: région de coopérations ou de conflits?”, Annuaire
Français des Relations Internationales, vol. XIV (2013): 197–211.

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PART 5
The Area

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 Chapter 16

International Subjectivity of Corporations

Operating in the Area and Universal Jurisdiction for
Environmental Damage
Pablo Ferrara

| ‫ּיוֹלְך יְ הוָֹ ה‬
ֶ ַ‫מׁשה ֶאת יָ דוֹ ַעל ַהּיָ ם ו‬ ֶ ‫ וַ ּיֵ ט‬.‫כא‬
‫רּוח ָק ִדים ַעּזָ ה ָּכל ַה ַּליְ ָלה וַ ּיָ ֶׂשם ֶאת ַהּיָ ם ֶל ָח ָר ָבה וַ ָּיִּב ְקעּו‬
ַ ‫ֶאת ַהּיָ ם ְּב‬
:‫ַה ָּמיִ ם‬

21. And Moses stretched out his hand over the sea, and the Lord led the sea
with the strong east wind all night, and He made the sea into dry land and
the waters split.
Exodus 14:21

In 1967, the hand of man seemed to be stretching over the oceans waters once
again. On November the 1st, 1967, the Maltese Ambassador to the United
Nations—Arvid Pardo—suggested to the General Assembly that the deep
seabed and ocean floor and its common resources should be declared ‘com-
mon heritage of mankind’ (CHM).1 Three years later, on 17 December 1970,
the UN General Assembly adopted the Declaration of Principles Governing the
Seabed and Ocean Floor, and the Subsoil thereof, Beyond the Limits of
National Jurisdiction.2 Ambassador Pardo’s proposal was only the prelude to a
large and conflictive series of negotiations in the later context of 1982 United
Nations Convention on the Law of the Sea (1982 UNCLOS).3 In any case, for
some time already had the main mining corporations and their supporting
states been doing feasibility research for deep seabed mining.4 Interests were
upon collision.5

1 UN General Assembly, Official Records, 22nd Session First Committee, Doc.A/C.1/PV.1515,

1 November 1967, p. 2.
2 GA Resolution 2749 (XXV).
3 UN General Assembly Official Records, 22nd Session First Committee, Doc. A/C.1/PV.1515,
p. 12.
4 See A.M. POST, Deep sea mining and the law of the sea (Leiden: Martinus Nijhoff Publishers,
1983) 1–57.
5 Id., at 116.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_017

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Public actors decided, then, to choose their plenipotentiaries and leave the
matter to negotiation. Nevertheless, eight years of debate and great expecta-
tions could not compensate the disappointment of 1982 UNCLOS’ Part XI,
as the text—including its references to the ‘common heritage of mankind’
regime—seemed somehow ‘tendentious’ both for mining corporations and
their supporting states.6 This circumstance, along with the retrieval of min-
ing markets’ demand, led offshore projects to stagnation and somnolence for
twelve years throughout a full reordering of world geo-politics, global econ-
omy, and mineral market evolution. On 17 August 1994, almost forty years after
the first signs of interest, mining corporations and their neoliberal supporting
governments decided it was good time to move on.7 After new negotiations
and a new agreement, 1982 UNCLOS machinery was finally turned on and
the Seabed Disputes Chamber (the SDC) of the United Nations International
Tribunal for the Law of the Sea (ITLOS) received a request for an Advisory
Opinion (the Opinion) from the International Seabed Authority (the Seabed
Authority) regarding “Responsibilities and Obligations of States sponsoring
persons and entities with respect to activities in the Area”.8
Regarding the area of international subjectivity, the Opinion of the SDC is at
first sight strongly state-centered and, possibly, rather ‘conservative’ in a doc-
trinarian sense due to the fact that it conveys the consciousness of the lack of
‘materialization of the international subjectivity’ of actors performing activi-
ties in the Area (i.e., corporations). In contrast, many modern literature schol-
ars have discarded the traditionally overwhelming state-centered conception
of the international legal framework. For them, “. . . the state is not considered
a historical fact, but a legal status; individual freedom is not regarded best pre-
served inside the state, but by making it a concern for the international com-
munity as a whole; (. . .) factual developments do not have direct legal value,
but have to be transformed into law through principled justification.”9 In this
line of thought, an actualized contemporary legal order must outline an ‘inclu-
sive’ framework of reference for international personality.10

6 See Kelmal Maslar, The concept of the common heritage of mankind in international law
(Leiden: Martinus Nijhoff Publishers, 1998), 206.
7 Id., at 216.
8 Responsibilities and obligations of states sponsoring persons and entities with respect to
activities in the area, Seabed Disputes Chamber of The International Tribunal for the Law
of the Sea (Advisory Opinion) (1 February 2011); hereinafter AO.
9 Roland Portmann, Legal personality in international law (Oxford: Oxford University Press,
2010), 282.
10 Id., at 283.

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international subjectivity of corporations in the Area 247

Precisely, this chapter stands side by side with modern literature, discarding
the traditional overwhelming state-centered conception of the international
legal framework in order to open the debate around the possibility of ‘univer-
sal jurisdiction’ for cases of environmental damage produced by private enti-
ties performing deep seabed mining activities in the Area.
Most certainly, then, it is possible to assess that this is not a discussion on
de lege lata aspects of Public International Law of the Sea, but rather an essay
on de lege ferenda criteria needful—even imminent—ocean matters.

Subjectivity

Generalities
As previously alluded, modern literature scholars seem to have put aside the
traditional international legal framework in exchange for an actualized con-
temporary legal order, with the following milestones: “(i) the openness of inter-
national law as a legal system from which no entity is a priori excluded; (ii) the
inexistence of natural or primary as opposed to derived or secondary inter-
national persons.”11 In addition, according to the new international literature:

[T]he personal scope of an international rule, with the exception of cer-

tain fundamental principles in which there is a presumed personality of
individuals, is determined according to general rules of interpretation
without starting from a particular presumption. In this process, recogni-
tion of international legal status may have considerable evidential value,
but it is not in itself necessary or sufficient for constituting personality in
international law; similar considerations apply with respect to effective
actor status. It ensues that the sole consequence of being an interna-
tional person is to be able to invoke international responsibility and to be
held internationally responsible as far as applicable secondary rules exist.
Crucially, it is not a consequence of personality to have the capacity to
create international law.12

According to the abovementioned, it is possible to affirm that “. . . there is no

sound basis for effective actor quality directly leading to international legal
status,”13 and that the door is always open to new actors for the acquisition of

11 Id., at 269.
12 Id., at 283.
13 Id., at 269.

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international personality provided they comply with the formal and individu-
alistic requirements of the case:

It is convenient to summarize the basic principles for personality in

international law, which follow from a combination of the formal and
individualistic conception:

(1) International law is an open system. No entities are a priori excluded

from it.
(2) International personality follows from an international norm
addressing an entity. It is thus acquired a posteriori through interpre-
tation of specific norms. In case of treaty norms, normal rules of
treaty interpretation apply. In principle, there is no a priori interna-
tional person.
(3) Special considerations apply when international crimes and funda-
mental human rights are concerned. In this context related to the
category of peremptory norms, there is a presumption that these
basic principles directly apply to individual human beings, irrespec-
tive of them acting in official or private capacity. In this limited sense,
individuals are a priori international persons. Where analogy
between individuals and legal persons of municipal law is not pre-
cluded on grounds of logic, the presumption arguably holds true for
the latter. The legal status of states and other public entities in this
context is established according to regular principles.
(4) Recognition is neither a necessary nor a sufficient condition for
acquiring international personality. However, it has considerable evi-
dential value when interpreting the personal scope of specific norms,
especially those of customary nature. A similar function is exerted by
effective actor status.
(5) The only direct consequence of possessing personality in international
law is the capacity to invoke responsibility and to be held responsible for
internationally wrongful acts (as far as applicable secondary rules
exist). There is no further consequence of personality; in particular,
there is no inherent capacity to create law.14

Multinational Corporations and Mining Activities

Under the framework described, multinational corporations have been con-
solidating their international subjectivity during the last fifty years in several

14 Id., at 276.

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ways,15 backed up by their substantial power in the international scenario (bar-

gaining power, policy influence, political lobby, economic intervention, etc.).16
On the latter, since the early beginning of the process of internationalization of
corporations, mining companies have figured among the top multinationals.17
The situation hasn’t change too much—except for the appearance of tele-
communication and computer companies—, and according to Price Water-
house Coopers in 2013 there were 6 mining companies among the global
top 100 capitalization multinational corporations (Table 1).18 Now, if these
companies’ capitalization value were compared worldwide with the States’
national GDP, they would fit between the 62nd and 51st strongest world econo-
mies (World Bank GDP report for 2012).19 This provides an image of the poten-
tial power and interests at ease regarding mining corporations, their activities,
associated States, and finally, relevant normative.

TABLE 1 Mining Companies Among the Global Top 100 Capitalization Multinational
Corporations

Company Name Nationality Rank +/– 31 March Market 31 March Market

2013 Rank Cap $bn 2008 Rank Cap $bn

BHP BILLITON Australia –7 28 171 21 175

RIO TINTO United –35 65 92 30 155
Kingdom
VALE SA Brazil –41 67 90 26 159
BAYER Germany +39 74 85 113 61
BASF Germany +22 83 80 105 64
SABIC Saudi Arabia –37 87 76 50 112

Source: PWC Infographics Report

15 See Peter T. Muchlinsky, Multinational enterprises & the law (Oxford: Blackwell Publishers,
2007), 18.
16 Jeanne Elisabeth Nijman, The concept of international legal personality 354 (The Hague:
T.M.C. Asser Press, 2004).
17 See supra 15.
18 See “Price Waterhouse Cooper’s global top 100 companies infographics report”, avail-
able online at http://www.pwc.com/gx/en/audit-services/capital-market/publications/
top100-market-capitalisation.jhtml (Consulted on March 2014).
19 The list of national GDP per country at the World Bank Web Page: http://data.world-
bank.org/indicator/NY.GDP.MKTP.CD?order=wbapi_data_value_2012+wbapi_data_
value+wbapi_data_value-last&sort=desc (Consulted on March 2014).

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Normative
When discussion regarding deep-seabed mining reaches the level of law,
national, transnational, and international interests collide. Of course, it is not
easy to find a balance for the activity’s inherent risks—both from the inves-
tors’ lack of certainty regarding the mining spot as from the prospective envi-
ronmental damage caused by the activity—and its extremely high potential
profits. Nor is it easy to understand the importance to conceive a legal frame-
work that allows a dangerous-but-highly-profitable activity and at the same
time provides the broadest scope of insurance and securities for subjects not
remotely involved in it (i.e. peoples from a far, land-locked, developing country
State), but who are supposedly entitled to benefits and protected in case of
environmental damage by Public International Law. Even if not at the time
of this writing, this conundrum may become a harsh dilemma for the inter-
national community. And this dilemma is—of course—the quid of this essay.

The Common Heritage of Mankind: A Preliminary Concept?

Whilst the quid of the present work is clear, it is interesting to analyze the pos-
sibilities of setting a point of departure in the analysis. In effect, there is one,
and it is constituted by the international law institute of CHM.
The full scope of the concept of CHM is uncertain, but it is possible to ascer-
tain some particular elements when applied to common space areas such
as the seabed: (i) the areas can not be appropriated; (ii) the use of the areas
and their resources are governed and managed by an international authority;
(iii) there is a regime of active and equitable sharing of benefits derived
from the exploitation of resources; (iv) the peaceful use of the areas and re-
sources concerned; and (v) the protection and preservation of the areas and
resources for the benefit of mankind.20 On the other hand, Professor Baslar
affirms that “. . . the common heritage of mankind, as part of international
resource management, is a functional concept rather than a territorial one,”
and as such, “. . . it is not necessarily concerned with the ownership of the area
where resources are found, but with the use of the resources for the benefit
of mankind.”21 Evidently, the quid of the CHM as a legal institution of inter-
national law is the management of resources; in particular, the fairness and

20 See supra 6, at 246.

21 Id., at 49.

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justice connected with that management22 and the subjects substantiating

that management.23 On the latter, Professor Baslar reappraises:

[T]he reappearance of mankind in international law constitutes a signifi-

cant evidence of the demise of positivist school, because, starting from
the Grotius’ era until the second half of the 20th century, only states were
deemed as the sole subjects of international relations having rights and
duties. But at the dawn of the 21st century, it is believed that ‘state sover-
eignty in international law is an idea whose time has come and gone.’24
The resurgence of mankind pictures a shift from state-centered interna-
tional law to anthropocentric international law, or from law of nations to
law of mankind, or even from individualism to egalitarianism.25

Altogether, the anthropocentric character of the CHM concept may give way
to the result that ‘mankind’ is no more than the steward of the earth charged
with the protection of the Earth and living organisms therein, that is, a custodi
in terram.26 Nevertheless, if the term ‘mankind’ is to be given an international
legal personality the representation of all its components must be assured.
Because of this difficulty, “. . . it is generally presumed that ‘the international
community’ represents mankind,” and that “. . . the international system
reflects more than ever before the growing importance of the idea of the inter-
national community: such a community is gaining a sui generis legal status
distinct from its constituting nuclei (states).”27

The Common Heritage of Mankind and the Oceans

Framework
Professor Baslar refers that “. . . [w]hen Pardo introduced the common heri-
tage on 1 November 1967 the protection of the marine environment against
pollution of ships, radioactive waters or dumping was part of the common
heritage of mankind.”28 Professor Baslar is, indeed, a supporter of the idea that

22 For a development on the approaches to resource management, see Id., at 57.

23 See H. Gould, The legacy of punishment in international law (New York: Palgrave Macmillan,
2010), 70.
24 R.B. Lillich, “Sovereignty and Humanity: Can They Converge?”, in The spirit of Uppsala
(Berlin/New York: W. de Gruyter, 1981), 105.
25 Supra 23, at 71.
26 Supra 6, at 65.
27 Id. 6, at 75.
28 Id., at 235.

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protection of the marine environment from the adverse effects of deep seabed
mining has always been an element of CHM. However, since the early 1980s,
the concept of CHM has spread through the arguments of international envi-
ronmental lawyers with a broader and independent sense. Thus, international
environmental law is claimed to have gained sufficient substance as to become
the source of demand at a judicial court.

The Common Heritage of Mankind and Deep Seabed Mining

In 1969, the Legal Sub-Committee of the Seabed Committee was taken up on
the discussion on the legal status of the area in question, providing the follow-
ing comments:

[T]he notion on the ‘common heritage of mankind’ would provide the

basis for specific principles concerning the area; accordingly, all the rules
and principles for activities in the sea-bed should be based on that notion.
Its elements and consequences were: the notion of trust and trustees;
indivisibility of the heritage; the regulation of the use of that heritage by
the international community; the most appropriate equitable exploita-
tion of this area to the developing countries; freedom of access and use
by all States; and the principle of peaceful use.29

In addition, the intention of Article 140 of 1982 UNCLOS to differentiate ‘man-

kind,’ ‘States,’ and ‘peoples’ as different subjects is outlined when considering
the economic and non-economic benefits of activities in the Area:

Article 140
Benefit of mankind
1. Activities in the Area shall, as specifically provided for in this Part, be car-
ried out for the benefit of mankind as a whole, irrespective of the geographi-
cal location of States, whether coastal or land-locked, and taking into
particular consideration the interests and needs of developing States and of
peoples who have not attained full independence or other self-governing status
recognized by the United Nations in accordance with General Assembly
resolution 1514 (XV) and other relevant General Assembly resolutions.
2. The Authority shall provide for the equitable sharing of financial and other
economic benefits derived from activities in the Area through any appropri-
ate mechanism, on a non-discriminatory basis, in accordance with Article
160, paragraph 2(f)(i).30

29 See SBC Report 1969, part Two, paras. 20–21, at 14.

30 1982 UNCLOS, emphasis added.

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The Common Heritage of Mankind and the Marine Environment

In giving effect to international rules and standards, Part XII of 1982 UNCLOS
explicitly acknowledges its framework character, and the existence of other
global and regional basis in formulating rules and standards.31 As Professor
Redgwell poses, “. . . an echo of the consequences and obligations arising under
other multilateral, regional or bilateral agreements is found in Article 282
of the LOSC . . .,”32 which “. . . provides that a dispute regarding the interpre-
tation or application of the LOSC shall be submitted to a procedure entail-
ing binding decision thereunder, then that procedure will prevail over the
procedures in Part XV of the LOSC, unless the parties to the agreement agree
otherwise.”33 In this regard, the ITLOS MOX Plant Case between Ireland
and the United Kingdom settled that each and every environmental right and
obligation, though similar or identical, ran separately between 1982 UNCLOS
and other legal multilateral or regional sources.34 Such has always been the
destiny of conventions on environmental matters in relation to 1982 UNCLOS:
parallelism.35 The evolution of international conventional environmental sea
law has been quite substantial since 1982. Nevertheless, the basic set up in
1982 UNCLOS remains to be “. . . harmonization based on obligation of result
(i.e. national standards shall be ‘no less effective’ than global rules and stan-
dards, contained within and without the LOSC, in preventing, reducing and
controlling pollution of the marine environment by dumping).”36
Different international environmental obligations refer to the mining activi-
ties in the seabed. Their legal source can be similar, though independent. In
any case, they are all linked to the CHM concept independently from seabed
mining activities. Among the elements to support this assertion, there are six
which are particularly relevant: (i) the difference in the nature of the interna-
tional subject interested in the implementation of CHM; (ii) the theoretical
difference of the concept of ‘justice’ connected to the international obligation;
(iii) the difference of the jurisdictional location of the activities regulated by
the international obligation; (iv) the difference in share and burdens linked
to the activity; (v) the difference of scope and possibility to define clear limits;

31 Catherine Redgwell, “From Permission to Prohibition: The 1982 Convention on the Law
of the Sea and Protection of the Marine Environment”, in The Law of the Sea: Progress and
Prospects, ed. D. Freestone, R. Barnes, & D. Ong (Oxford: Oxford University Press, 2006),
180–191.
32 ‘LOSC’ refers to 1982 UNCLOS.
33 Supra 30, at 183.
34 MOX Plant Case (No 10) (Ireland v United Kingdom) (Provisional Measures), ITLOS
Reports (2001), available at http://www.itlos.org.
35 Supra 32, at 184 et seq.
36 Id., at 189.

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and (vi) the presence or absence of manifestation of an element of steward-

ship and fiduciary responsibilities connected to the activities.37

The Opinion of the Seabed Disputes Chamber: Obligations and

Responsibilities in Parallel

The Sources of the Obligations

The SDC was clear when it delivered its Opinion on the substantial burden
of the states’ primary obligations under 1982 UNCLOS:

The role of the sponsoring State, as set out in the Convention, contributes
to the realization of the common interest of all States in the proper appli-
cation of the principle of the common heritage of mankind which
requires faithful compliance with the obligations set out in Part XI. The
common-interest role of the sponsoring State is further confirmed by its
obligation, set out in Article 153, paragraph 4, of the Convention, to ‘assist’
the Authority, which, as stated in Article 137, paragraph 2, of the
Convention, acts on behalf of mankind.38

According to the SDC, the key provisions concerning the obligations of

the sponsoring States are defined by: Article 139, Paragraph 1; Article 153,
Paragraph 4 (especially the last sentence); and Annex III, Article 4, paragraph 4,
of 1982 UNCLOS.39 Nevertheless, the definition of the term ‘international
community’ is quite demanding a task, and attempting to interpret ‘mankind’
as the international community of ‘states’ seems to be rather narrow, stretch,
and—altogether—misleading.

The Actors in the Area

Pursuant to Annex III, Article 4, Paragraph 3, of 1982 UNCLOS, and confirmed
in Regulation 11, Paragraph 2, of the Nodules Regulations and of the Sulphides
Regulations, the SDC made the following statements regarding actors (i.e.
domestic law entities) performing activities in the Area: (i) the connection
between States Parties and domestic law entities required by 1982 UNCLOS is
twofold, namely, that of nationality and that of effective control; (ii) all con-
tractors and applicants for contracts must secure and maintain the sponsor-

37 See AO, para. 276.

38 Id., para. 76.
39 Id., para. 99.

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international subjectivity of corporations in the Area 255

ship of the State or States of which they are nationals; and (iii) if another State
or its nationals exercises effective control, the sponsorship of that State is also
necessary.40
In relation to the act of sponsorship, the SDC stated that no provision of
1982 UNCLOS imposes an obligation on a State Party to sponsor an entity that
holds its nationality or is controlled by it or by its nationals. The SDC clearly
added:

As the Convention does not consider the links of nationality and effective
control sufficient to obtain the result that the contractor conforms with
the Convention and related instruments, it requires a specific act ema-
nating from the will of the State or States of nationality and of effective
control. Such act consists in the decision to sponsor.41

The Activities in the Area

In the first place, “. . . the expression ‘activities in the Area’, in the context of
both exploration and exploitation, includes, first of all, the recovery of miner-
als from the seabed and their lifting to the water surface.”42 In addition, “. . . the
transporting, processing and marketing of minerals recovered from the Area.
Consequently, the latter activities are not included in the notion of ‘activities
in the Area’ referred to in Annex IV, Article 1, paragraph 1, of 1982 UNCLOS,”43
however “. . . transportation within that part of the high seas, when directly
connected with extraction and lifting, should be included in activities in the
Area,”44 due to the fact that “. . . inclusion of transportation to points on land
could create an unnecessary conflict with provisions of 1982 UNCLOS such as
those that concern navigation on the high seas.”45 Finally, regarding explora-
tion, though excluded from 1982 UNCLOS definition of ‘activities in the Area’
the SDC considered it “. . . appropriate to observe that some aspects of the
present Advisory Opinion may also apply to prospecting.”46 In effect, the SDC
noted in its Opinion that:

40 Id., para. 77.

41 Id., para. 78.
42 Id., para. 94.
43 Id., para. 84.
44 Id., para. 96.
45 Id., para. 96.
46 Id., para. 98.

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[T]he Regulations issued to date by the Authority deal only with pros-
pecting and exploration. Considering that the potential for damage,
particularly to the marine environment, may increase during the exploi-
tation phase, it is to be expected that member States of the Authority
will further deal with the issue of liability in future regulations on
exploitation.47

The Obligations of the States vis à vis the Obligations of the

Contractors
The SDC made clear that its primary addressees were states, either sponsor-
ing the activities or corporately linked to the private entity performing them;48
only in the background did the SDC directly refer that the entities were respon-
sible for deep seabed mining “. . . ‘in conformity’ or in ‘compliance’ with the
rules to which they refer . . .”.49 The Opinion is strongly focused on finding and
holding the nexus between private actors and states in order to lead burdens
and liabilities from the former to the later:

While it is not considered reasonable to make a State liable for each and
every violation committed by persons under its jurisdiction, it is equally
not considered satisfactory to rely on mere application of the principle
that the conduct of private persons or entities is not attributable to the
State under international law (see ILC Articles on State Responsibility,
Commentary to Article 8, paragraph 1).50

47 Id., para. 168.

48 Id., para. 158. Regarding States’ labeling, the SDC stated that: “Equality of treatment
between developing and developed sponsoring States is consistent with the need to pre-
vent commercial enterprises based in developed States from setting up companies in
developing States, acquiring their nationality and obtaining their sponsorship in the hope
of being subjected to less burdensome regulations and controls. The spread of sponsoring
States ‘of convenience’ would jeopardize uniform application of the highest standards
of protection of the marine environment, the safe development of activities in the Area
and protection of the common heritage of mankind.” See AO, para. 159.
49 These rules are referred to as ‘this Part’ (Part XI) in: (i) Article 139 of 1982 UNCLOS, as
“. . . the relevant provisions of this Part and the Annexes relating thereto, and the rules,
regulations and procedures of the Authority, and the plans of work approved in accor-
dance with paragraph 3 . . .”; (ii) Article 153, paragraph 4, of 1982 UNCLOS; and (iii) Article
4, paragraph 4, of 1982 UNCLOS Annex III (“. . . the terms of its contract and its obliga-
tions under this Convention . . .”). See AO, paras. 103 and 104.
50 Id., para. 112.

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international subjectivity of corporations in the Area 257

Under international law, the acts of private entities are not directly attrib-
utable to States except where the entity in question is empowered to act
as a State organ (Article 5 of the ILC Articles on State Responsibility) or
where its conduct is acknowledged and adopted by a State as its own
(Article 11 of the ILC Articles on State Responsibility).51

[T]he rules of the Convention concerning activities in the Area, although

being treaty law and thus binding only on the subjects of international
law that have accepted them, become effective for sponsored contractors
which find their legal basis in domestic law. This mechanism consists in
the creation of obligations which States Parties must fulfil by exercising
their power over entities of their nationality and under their control.52

Regarding the content of the obligation, the SDC differentiated two catego-
ries: (i) ‘indirect obligations’ of conduct or ‘due diligence’ obligations,53 and
(ii) ‘direct obligations’.54 With respect to the first category, the SDC considered
that it was not called upon to render specific advice as to the necessary and
appropriate measures that the sponsoring State must take in order to fulfill its
responsibilities under 1982 UNCLOS, as “. . . [j]udicial bodies may not perform
functions that are not in keeping with their judicial character.”55 Nevertheless,
it posed the milestones to understand the underneath law. In this sense,
according to the SDC, the first category must not be understood as an obli-
gation to achieve, but rather “. . . an obligation to deploy adequate means,
to exercise best possible efforts, to do the utmost . . .”56 under certain condi-
tions: (i) sponsoring States’ ‘responsibility to ensure’ applies ‘within their legal

51 Id., para. 182.

52 Id., para. 108.
53 In its Judgment about the Pulp Mills on the River Uruguay, the ICJ illustrated the meaning
of a specific treaty obligation that it had qualified as ‘an obligation to act with due dili-
gence’ as follows:
“It is an obligation which entails not only the adoption of appropriate rules and
measures, but also a certain level of vigilance in their enforcement and the exercise
of administrative control applicable to public and private operators, such as the
monitoring of activities undertaken by such operators . . .” (Paragraph 197)
Similar indications were given by the International Law Commission in its Commentary
to Article 3 of its Articles on Prevention of Transboundary Harm from Hazardous
Activities (2001).
54 Id., para. 121.
55 Id., para. 227.
56 Id., para. 110.

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systems,’57 taking into account, among other things, the particular characteris-
tics of that system;58 (ii) the measures taken by the States must be ‘reasonably
appropriate;’59 and (iii) the standard of due diligence has to be more severe
for the riskier activities.60 The second category is formed particularly by:
(i) the obligation to assist the Seabed Authority in the exercise of control over
activities in the Area; (ii) the obligation to apply a precautionary approach;
(iii) the obligation to apply best environmental practices; (iv) the obligation to
take measures to ensure the provision of guarantees in the event of an emer-
gency order by the Authority for protection of the marine environment; (v) the
obligation to ensure the availability of recourse for compensation in respect of
damage caused by pollution; and (vi) the obligation to conduct environmental
impact assessments.61

Liability
Framework
According to the SDC, the framework for liability is set up by Article 139,
Paragraph 2, and Article 304 of 1982 UNCLOS, which refer, respectively, to the
‘rules of international law’ as well as to “. . . the application of existing rules
and the development of further rules regarding responsibility and liability
under international law”.62 The SDC decided that account has to be taken of
such rules under customary law, especially in light of the ILC Articles on State
Responsibility.63

57 Id., para. 117.

58 Id., para. 229.
59 Id., para. 120.
60 Id., para. 117.
61 Id., para. 122. Emphasis added.
62 Article 139, paragraph 2, of 1982 UNCLOS and the related provisions referred to above,
prescribe or refer to different sources of liability, namely, rules concerning the liability of
States Parties (Article 139, paragraph 2, first sentence, of 1982 UNCLOS), rules concerning
sponsoring State liability (Article 139, paragraph 2, second sentence, of 1982 UNCLOS),
and rules concerning the liability of the contractor and the Authority (referred to in 1982
UNCLOS Annex III, Article 22). See AO, para. 171.
63 Article 139, paragraph 2, of 1982 UNCLOS and the related provisions referred to above,
prescribe or refer to different sources of liability, namely, rules concerning the liability of
States Parties (Article 139, paragraph 2, first sentence, of 1982 UNCLOS), rules concerning
sponsoring State liability (Article 139, paragraph 2, second sentence, of 1982 UNCLOS),
and rules concerning the liability of the contractor and the Authority (referred to in 1982
UNCLOS Annex III, Article 22). See AO, para. 171.

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Source
In the first place, liability arises from the failure of the sponsoring State to carry
out its own responsibilities. The basic, general condition is that the sponsor-
ing State is not liable for the failure of the sponsored contractor to meet its
obligations.64 There is, however, a link between the liability of the sponsoring
State and the failure of the sponsored contractor to comply with its obliga-
tions, thereby causing damage.65 Precisely, regarding the relationship between
the contractor’s liability and that of the sponsoring State, attention may be
drawn to Annex III, Article 22, of 1982 UNCLOS, which reads as follows:

The contractor shall have responsibility or liability for any damage aris-
ing out of wrongful acts in the conduct of its operations, account being
taken of contributory acts or omissions by the Authority. Similarly, the
Authority shall have responsibility or liability for any damage arising out
of wrongful acts in the exercise of its powers and functions, including
violations under Article 168, paragraph 2, account being taken of con-
tributory acts or omissions by the contractor. Liability in every case shall
be for the actual amount of damage.66

Consequently, there is only one point of connection, namely, that the liability
of the sponsoring State depends upon the damage resulting from activities
or omissions of the sponsored contractor (see paragraph 181). Nevertheless,
according to the SDC, this is merely a trigger mechanism, and such damage is
not automatically attributable to the sponsoring State: “If the contractor has
paid the actual amount of damage, as required under Annex III, Article 22, of
1982 UNCLOS, in the view of the Chamber, there is no room for reparation by
the sponsoring State.”67 The situation becomes even more complex if the con-
tractor has not covered the damage fully. It was pointed out in the Opinion pro-
ceedings that “. . . a gap in liability may occur if, notwithstanding the fact that
the sponsoring State has taken all necessary and appropriate measures, the
sponsored contractor has caused damage and is unable to meet its liability in
full.”68 It was further pointed out that “. . . a gap in liability may also occur if the
sponsoring State failed to meet its obligations but that failure is not causally

64 Id., para. 172.

65 Id., para. 173.
66 Id., para. 199.
67 Id., para. 202.
68 Id., para. 203.

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linked to the damage.”69 In the Opinion’s written and oral statements, States
Parties to 1982 UNCLOS expressed different views on this issue; some argued
that the sponsoring State had a residual liability, that is, the liability to cover
the damage not covered by the sponsored contractor although the conditions
for a liability of the sponsoring State under Article 139, paragraph 2, of 1982
UNCLOS were not met; other States Parties took the opposite position. In the
view of the SDC, the liability regime established by Article 139 of 1982 UNCLOS
and in related instruments leaves no room for residual liability: the liability
of the sponsoring State and the liability of the sponsored contractor exist
in parallel.70

Conditions
The terms of Article 139, Paragraph 2, of 1982 UNCLOS clearly establishes
two conditions for liability to arise: (i) the failure by act or omission of the
sponsoring State to carry out its responsibilities; and (ii) the occurrence of
damage.71 Neither 1982 UNCLOS nor the relevant Regulations specify what
constitutes compensable damage, or which subjects may be entitled to claim
compensation.72 The SDC determined, then, that “. . . [i]t may be envis-
aged that the damage in question would include damage to the Area and its
resources constituting the common heritage of mankind, and damage to the
marine environment.”73 Regarding claim, the SDC asserted that “. . . [s]ubjects
entitled to claim compensation may include the Authority, entities engaged in
deep seabed mining, other users of the sea, and coastal States”.74
With regard to the standard of liability, it was argued in the proceedings that
the sponsoring State has strict liability, i.e., liability without fault;75 in the event
of multiple sponsorship, liability is joint and several unless otherwise provided
in the Regulations issued by the Authority.76 Compensation shall be for the
actual amount of damage, that is, full compensation or restitutio in integrum.77

69 Id.
70 Id., para. 204.
71 AO, paras. 176 and 178.
72 See Regulation 30 of the Nodules Regulations and Regulation 32 of the Sulphides
Regulations.
73 Id., para. 179.
74 Id., para. 179.
75 Id., para. 189.
76 Id., para. 192.
77 Id., para. 193 et seq. This conclusion was first reached by the Permanent Court of
International Justice in the Factory of Chorzów Case (P.C.I.J. Series A, No. 17, p. 47).
The International Law Commission further reiterated this obligation. According to

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Finally, it is essential to consider that the nature of the obligation determines

the scope of the liability.78

Availability of Recourse for Compensation

The SDC asserted that “. . . it is inherent in the ‘due diligence’ obligation of the
sponsoring State to ensure that the obligations of a sponsored contractor are
made enforceable.”79 In this sense, Article 235, Paragraph 2, of 1982 UNCLOS
reads as follows:

States shall ensure that recourse is available in accordance with their

legal systems for prompt and adequate compensation or other relief in
respect of damage caused by pollution of the marine environment by
natural or juridical persons under their jurisdiction.

Support for the enforcement of contractor’s obligations under the domestic

law of the sponsoring State is an essential requirement in a number of national
jurisdictions.80 The 1982 UNCLOS specifies in various provisions the issues
that should be covered by the sponsoring State’s laws and regulations. In par-
ticular, Article 39 of the Statute dealing with enforcement of decisions of the
SDC provides:

The decisions of the Chamber shall be enforceable in the territories of the

States Parties in the same manner as judgments or orders of the highest
court of the State Party in whose territory the enforcement is sought.81

Finally, reference must be made to Annex III, Article 21, Paragraph 2, of 1982
UNCLOS, which provides:

Article 31, paragraph 1, of the ILC Articles on State Responsibility: “The responsible
State is under an obligation to make full reparation for the injury caused by the interna-
tionally wrongful act”. The Chamber notes in this context that treaties on specific top-
ics, such as nuclear energy or oil pollution, provide for limitations on liability together
with strict liability. The Chamber wishes to refer to Article 34 of the ILC Articles on State
Responsibility. It reads: Full reparation for the injury caused by the internationally wrong-
ful act shall take the form of restitution, compensation and satisfaction, either singly or in
combination, in accordance with the provisions of this chapter.
78 AO, para. 177.
79 Id., para. 239.
80 Id., para. 218.
81 Id., para. 235.

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Any final decision rendered by a court or tribunal having jurisdiction

under this Convention relating to the rights and obligations of the
Authority and of the contractor shall be enforceable in the territory of
each State Party.

In a number of national jurisdictions, these provisions may require specific

legislation for implementation. In any case, they certainly are mandatory, but
against whom: Who should be sued to ensure compensation? To this question,
the SDC answered that these obligations apply both “. . . to the sponsoring
State . . .” as well “. . . as the State with jurisdiction over the persons that caused
the damage.”82 Nevertheless, no reference was made to the private entities per-
forming the activities or to any possibility of co-demanding them in case of
collusion to avoid compliance of obligations of ‘due diligence.’

Actio potestas: Where Paralells

It is possible to understand that the necessity for a rather impartial ‘active
hand’ taking care of the CHM refers at a certain point to the ‘Public Trust
Doctrine,’ and consequently to the opportunity to recognize a trustee dealing
with the specific interests of ‘mankind.’ This has many times been the point of
departure for the discussion about the creation of a CHM authority as well as
about the creation of reserve funds. In a sense, it seems that the international
subject has a ‘collective soul,’ but unfortunately, no ‘recognizable body.’ It would
therefore be of the essence of the compliance of this legal institution to pro-
vide the soul with a proper body. An answer to this might be the installment of
an adequate actio potestas.83

Traditional Disputes and Contemporary Bargain

The distinction between ‘state’ and ‘nation’ (and the parallel differentiation
between both of those terms and ‘sovereign’) is part of what caused ‘interna-

82 “By requiring the sponsoring State to establish procedures, and, if necessary, substantive
rules governing claims for damages before its domestic courts, this provision serves the
purpose of ensuring that the sponsored contractor meets its obligation under Annex III,
Article 22, of the Convention to provide reparation for damages caused by wrongful acts
committed in the course of its activities in the Area.” AO, para. 140.
83 “Ideally, a non-state representation of future generations is needed should the common
heritage of mankind be effectively implemented. However, this is a big challenge for pres-
ent international law.” Supra 6, at 78.

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tional punishment’ to fall out of general favor. Nations, as congeries of natural

persons, were regarded as bound by Natural Law; States, as artificial persons
distinct from the natural persons they ‘personated,’ were progressively harder
to portray as bound by Natural Law.
There were three main components to classical ‘international punishment’:
(i) absolutely and universally binding nonconsensual rules; (ii) universal stand-
ing to punish those who violate the rules without regard to injury or interest;
(iii) and an understanding of sovereignty without implications of inviolability
or the sort of immunity from judgment that comes from juridical equality. The
first pillar of international punishment was absolute rules of universal scope;
the second—logically dependent upon the first—was the universal standing
to enforce those rules.
Modern international law has conceptualized obligations as bilateral
in character even when the instruments declaring them were multilateral in
scope. International law does not generally understand obligations to be owed
to the community of states at large. Standing to seek redress for the violation of
a rule was (and remains) overwhelmingly limited to parties directly and mate-
rially injured by the violation. There was nothing necessary about this: bilateral
agreements were simply more common historically, and bilateral obligation
was the cognitive framework within which early multilateral agreements were
formulated, and this conceptualization has been utilized ever since.
The last decades of the 20th Century saw the enunciation—if not clear-
cut application—of a new manifestation of the second pillar. Since the 1970s,
international law recognized the existence of obligations erga omnes, that
is, obligations that were owed generally to the international community as a
whole. The basic postulatio regarding the violation of these obligations, since
they were owed to the international community generally, was that it gave rise
to general standing to enforce them, namely, to the actio popularis.
Based on a practice from Roman law, the actio popularis is an action
brought against a malfeasant not on the personal behalf of the party bringing
the action (nor like a criminal action is it brought by the state), but on behalf
of the community. In international law, it is one state making a legal claim
against another not for an injury it suffered by the conduct of the latter, but
for the latter’s mere violation of an obligation owed generally (an obligation
erga omnes). This practice is well known in many domestic legal settings, but
it has been greeted simultaneously with trepidation and skepticism in inter-
national law.
The emphasis with obligations erga omnes is not on violations of Natural
Law punishable by any and all, but rather Positive Law, voluntarily undertaken
obligations to all legally actionable by any. In principle, every state has a legal

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interest in the observance of obligations erga omnes; thus, it has been asserted
that any state may take legal action to ensure compliance with an obligation
erga omnes. In this sense

. . . [p]ositivists, on the one side, apologize that the traditional sources of

international law do not give due credibility to the common heritage
of mankind as a legal principle. Whereas, on the other side, non-positivits
claim that the common heritage of mankind is an established legal prin-
ciple of international law, acquiring its legal normativity from other
sources such as general principles of law and even from peremptory
norms.84

In order not to oscillate between ‘apology’ and ‘utopia’, Professor Baslar sug-
gests that “. . . the view that the difficulty of bringing the common heritage of
mankind into the corpus of international law may be surmounted by having
recourse to the Grotian or eclectic philosophy.”85 In the end, “. . . the common
heritage of mankind as a distinctive illustration of idealism relies on different
sources like, inter alia, resolutions and declarations of international organi-
zations, quasi-legislative acts of the United Nations and jus cogens.”86 From
the current standing point, the goal is to internationalize the CHM concept as
a general principle of law inherent to every human being, substantiating the
naissance of a ‘human right’ per se:

[I]f the concept of common heritage of mankind was, first of all, trans-
posed into the human rights framework, it might be possible to justify
human rights law on a non-conventional and non-consensual basis by
rejecting customary law and opting rather for general principles of law.
Accepting the common heritage of mankind as a human right would also
enable us to justify the right to intervention in internal affairs on behalf
of mankind and the right to locus standi or actio popularis in the internal
affairs of sovereign states at a time when humanity’s heritages are
misused.87

It is precisely at this point when the question rises: What about the possibility
of an ‘actio popularis’ for environmental damages with universal ‘locus standi’?

84 Id., at 367.
85 Id., at 368.
86 Id., at 359.
87 Id., at 369.

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The Opinion of the Seabed Disputes Chamber

As previously discussed, when analyzing breach of ‘due diligence’ obligations,
no mention was made by the SDC to the possibility of bringing private enti-
ties to court in case of environmental sea damage. In addition, the SDC made
reference only indirectly to the existent substantive obligations of Public
International Environmental Law—when redirecting them to Part XI of 1982
UNCLOS, according to Article 209.88 In any case, the SDC opened the possibil-
ity of the ‘actio popularis’ in charge of the Authority:

No provision of the Convention can be read as explicitly entitling the

Authority to make such a claim. It may, however, be argued that such
entitlement is implicit in Article 137, paragraph 2, of the Convention,
which states that the Authority shall act ‘on behalf’ of mankind. Each
State Party may also be entitled to claim compensation in light of the erga
omnes character of the obligations relating to preservation of the envi-
ronment of the high seas and in the Area.89

In support of this view, the SDC made reference to Article 48 of the ILC Articles
on State Responsibility, which provides:

Any State other than an injured State is entitled to invoke the responsibil-
ity of another State . . . if: (a) the obligation breached is owed to a group
of States including that State, and is established for the protection of a
collective interest of the group; or (b) the obligation breached is owed to
the international community as a whole.90

Now, it is important to consider that even if the SDC recognized the existence
of the environmental obligations erga omnes and the existence of an ‘actio
popularis’ to implement, it didn’t recognize unfortunately the possibility to
bring private entities to court.

The Liability Gap

When analyzing the liability ménage, the SDC found itself dealing with what
it defined as “. . . a gap in the liability regime established in Part XI of 1982
UNCLOS and related instruments . . . regarding the impact of international
law on the deep seabed liability regime.” In order to find a solution to that

88 AO, para. 241.

89 Id., para. 208.
90 Id., para. 180.

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gap, the SDC referred that Articles 139, Paragraph 2, first sentence, and Article
304 of 1982 UNCLOS, state that their provisions are “. . . ‘without prejudice’
to the rules of international law.”91 However, the SDC noted that “. . . if the
sponsoring State has not failed to meet its obligations, there is no room for
its liability under Article 139, paragraph 2, of 1982 UNCLOS even if activities
of the sponsored contractor have resulted in damage. A gap in liability which
might occur in such a situation cannot be closed by having recourse to liability
of the sponsoring State under customary international law.”92 Then the SDC
affirmed that although it was aware of the efforts made by the International
Law Commission to address the issue of damages resulting from acts not pro-
hibited under international law such efforts have not yet resulted in provisions
entailing State liability for lawful acts. The SDC understood, therefore, that
any damage produced under those circumstances was uncovered, drawing the
attention of the Authority to the option of establishing a trust fund to cover
such damages. Thus, upon unfortunate conceive of the SDC, private entities
are to be kept out of the possibilities of a court claim in view of current inter-
national law.

Tendencies

A brief reference shall hereby be made to the United States and Spain in order
to provide an idea of how the elements of the current debate are treated in
national jurisdictions.

Classical Tendencies: The United States of America Alien Tort Act

As Georg Nolte recalls, “. . . civil judgments which reply on the principle of
universal jurisdiction in cases of asserted violations of international law have
mainly occurred in the United States (. . .) based on the Alien Tort Claims Act
of 1789.”93
The United States Alien Tort Claims Act (the Act) establishes the jurisdic-
tion of the United States federal courts for “. . . all causes where an alien sues
for a tort only in violation of the law of nations or a treaty with the United

91 AO, para. 209.

92 Id.
93 Georg Nolte, “Universal Jurisdiction in the Area of Private Law—The Alien Claims Act”,
in The Fundamental Rules of the International Legal Order, ed. C. Tomuschant & J.M.
Thouvenin (Leiden: Martinus Nijhoff Publishers, 2006), 373.

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international subjectivity of corporations in the Area 267

States.”94 On a case-by-case basis, the Act has traditionally been applied in

courts in cases dealing with ‘universally recognized principles of international
law’ or accepted norms of the international law of human rights,95 upholding
protection against either people or incorporated entities.96 Unfortunately, the
violation of international environmental law has not fallen under the Act yet.97
The Act itself does not describe a special category of law, but simply
speaks of ‘violation of the law of nations’. However, “. . . American courts
have always insisted on another requirement: that the relevant norm of the
‘law of nations’ be clear and specific.” In its most recent case, the US Supreme
Court accepted the existent ‘specific, universal, and obligatory’ requirement
standard.98 Pursuant to this judgment, some authors understand that “. . . for
the American judiciary it is not the substance, but the form of an international
legal norm that is relevant; not its importance but its specificity; not its moral
obviousness, but its visible international acceptance in practice.”99
Now, regarding the reach of the US tribunal’s hand under international law,
that remains to be a preliminary question ruled by the Charming Betsy Rule of
interpretation of domestic law in conformity with international law.100 On the
other hand, the European Union Commission “. . . has underlined the necessity
of recognizing the primary jurisdiction of local courts which are better suited
to clarify and adjudge the issue.”101 However, this could lead to unfair decisions
in cases where corporations are to be sued and which prefer to proceed in their
native courts, or else, in a symbolic tool of political hegemony102 through the
exercise of extraterritoriality and privatization of the international jurisdiction

94 Alien Tort Statute 28 U.S.C. 1350.

95 Jean-Francois Flauss, “Competence civile universelle et droit international general”, in The
Fundamental Rules of the International Legal Order, ed. C. Tomuschant & J.M. Thouvenin
(Leiden: Martinus Nijhoff Publishers, 2006), 406.
96 See Filartiga v. Peña Irala (630 F2d 876; CA2 1980), Kadic v. Karadzic (70 F.3d 232; 2nd
Cir. 1995); Doe v. Unocal Corp (248 F.3d 915; 9th Cir. 2002), Ken Wiwa v. Royal Dutch Shell
Petroleum Co. et al. (226 F.3d 440; 2nd Cir. 2000).
97 See Amlon Metals Inc. V. FMC Corp. 775 F. Supp. 668 (SDNY 1991), p. 670.
98 See Sosa v. Alvarez Machain, 542 US 692(2004).
99 Supra 103, at 376.
100 Id., at 377. Also, Note 14 of the Brief of the Governments of the Commonwealth of Australia,
the Swiss Confederation, and the United Kingdom of Great Britain and Northern Ireland
as Amicus Curiae in Sosa v. Alvarez Machain.
101 Id., at 379.
102 See Jean-Francois Flauss, “Competence civile universelle et droit international general”,
in The Fundamental Rules of the International Legal Order, ed. C. Tomuschant & J.M.
Thouvenin (Leiden: Martinus Nijhoff Publishers, 2006), 389.

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of human rights. Thus, a fair boundary to jurisdiction must be tailored, enabling

the principle of ‘reasonableness’ through the presence of a foreign defender
and the consideration of the doctrine of the forum non conveniens.

Contemporary Tendencies: The Prestige

Facts
The Prestige was a Greek-operated, single-hulled oil tanker, officially registered
in the Bahamas, but with a Liberian-registered single-purpose corporation as
the owner. On 13 November 2002, while the Prestige was carrying a 77,000
metric tons cargo of two different grades of heavy fuel oil, one of its twelve
tanks burst during a storm off Galicia, in northwestern Spain. Fearing that the
ship would sink, the captain called for help from Spanish rescue workers, with
the expectation that the vessel would be brought into harbor. Local authori-
ties denied the solicitude and ordered the captain to steer the embattled ship
away from the coast and head northwest. After heading towards French water,
the vessel was once again forced to change its course and head southwards
into Portuguese waters in order to avoid endangering France’s southern coast.
Fearing for its own shore, the Portuguese authorities promptly ordered its navy
to intercept the ailing vessel and prevent it from approaching further. With
the French, Spanish and Portuguese governments refusing to allow the ship to
dock in their ports, the integrity of the single-hulled oil tanker was deteriorat-
ing quickly and soon the storm took its toll. It was reported that a section of the
starboard hull had broken off, releasing a substantial amount of oil.103
On 19 November 19, 2002, the ship split in half, sinking during the same
afternoon and releasing over 20 million US gallons (76,000 m3) of oil into the
sea. The oil tanker was reported to be about 250 kilometers from the Spanish
coast at that time. An earlier oil slick had already reached the coast. The Greek
captain of the Prestige, Apostolos Mangouras, was taken into custody, accused
of not co-operating with salvage crews and of harming the environment. After
the sinking, the wreck continued leaking oil. It leaked approximately 125 tons
of oil a day, polluting the seabed and contaminating the coastline, especially
along the territory of Galicia.

Legal Outpoints
The Spanish court understood that the callable liability could not refer to the
serious economic consequences of the Prestige oil spill. In addition, it affirmed:

103 See, Antecedentes de Hecho, in Denuncia de delitos contra el medio ambiente y daños en
espacios naturales protegidos. Buque Prestige—Audiencia Provincial Sección Núm. 1. La
Coruña (España)—12/11/2013 (Nº de Recurso: 38/2011).

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. . . Articles 109, 110, 116 and related provisions of the Criminal Code, as
was apparent from the wording of these provisions when referring to
damages caused by the act or the need for any damages arising from the
crime, so if accredited only considered the crime of disobedience, not
derived from the same or the same have not caused any damage arising
from the Prestige oil spill, regardless of the partially good accreditation of
huge damages, requiring ad hoc narrow criteria as follows.104

Precisely, regarding the criteria to set the terms and scope of liability, the
Spanish tribunal stated that “. . . ex liability offense [had] no other specialty
that originated and therefore the Court [could] freely, in accordance with
proven at trial, set the terms and scope;” nevertheless,

. . . the rules to be applied for this determination [could] not ignore the
fundamental criteria for determining liability in our system, which
[meant] that despite the freedom of opinion of what truly [was] accred-
ited in this matter, in no case [could] the rules violate disciplined rules of
supervision of certain entities and corporations.105

In addition, the Spanish court added that “. . . laws or contractual agreements

limiting certain responsibilities should prevail, so that the entities bound by
these rules or contracts [complied] within the limits of such standards and
agreements, notwithstanding that may recourse against other obligors.”106 In
the case:

[T]he current legislation [called] for a series of legal navigation require-

ments and assurances that the Prestige had at least as essential, but
which [were] certainly insufficient to deal with as dire as those caused
during the sinking of the Prestige consequences. Precisely, why they have
created organisms that may get compensation tighter as with the IOPC
Fund, which has some limitations of compensation agreed by and with
international criteria linking many states, including the Spanish, then
these constraints must be respected, not so much to prevent a dramatic
disappearance of these organisms as to comply with limitations in the art

104 See, Fundamentos de Derecho (6to Fundamento), in Denuncia de delitos contra el medio
ambiente y daños en espacios naturales protegidos. Buque Prestige, Audiencia provincial
sección núm. 1. La Coruña (España)—12/11/2013 (Nº de Recurso: 38/2011).
105 Id.
106 Id.

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that are the essence, or, in other words, if there are regulations limiting
such compensation against certain organisms, they must be respected
and demand of financial liabilities not satisfied by these other agencies
responsible to this limitation may not apply.107

The reason given by the Spanish tribunal to deny liability referred the relation
and proportionality between the activities, the risks, and the liability.108
Regarding the responsibility of other agencies and private entities involved
in the maritime activity, the Spanish tribunal declined to bring to court either
to the mother companies or to turn down the existent liability fund limit.

Conclusions

Modern scholars oscillate their debate between ‘apology’ and ‘utopia’ regarding
the materialization of the principle of CHM.109 Professor Baslar suggests that
“. . . the view that the difficulty of bringing the common heritage of mankind
into the corpus of international law may be surmounted by having recourse
to the Grotian or eclectic philosophy.”110 In the end, “. . . the common heritage
of mankind as a distinctive illustration of idealism relies on different sources
like, inter alia, resolutions and declarations of international organizations,
quasi-legislative acts of the United Nations and jus cogens.”111 In this context,
an Opinion rather démodé was delivered by the SDC withholding strong state-

107 Id.
108 “It could be argued that the uniqueness of the business that took place in and through
the Prestige allows your confusing management then listed as responsible legal persons
of low economic power and quite unable to cope with such responsibility, which may
be true and if it is can tolerate in their own field of business, it would be even possi-
ble to go to the doctrine of piercing the corporate veil to identify the real culprits.” See,
Fundamentos de Derecho, in Denuncia de delitos contra el medio ambiente y daños en
espacios naturales protegidos. Buque Prestige—Audiencia Provincial Sección Núm. 1. La
Coruña (España)—12/11/2013 (Nº de Recurso: 38/2011).
109 “Positivists, on the one side, apologize that the traditional sources of international law do
not give due credibility to the common heritage of mankind as a legal principle. Whereas,
on the other side, non-positivits claim that the common heritage of mankind is an estab-
lished legal principle of international law, acquiring its legal normativity from other
sources such as general principles of law and even from peremptory norms.” Supra 6, at
367.
110 Id., at 368.
111 Id., at 359.

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international subjectivity of corporations in the Area 271

centered criteria and upholding similar reticence against universal jurisdiction

(actio popularis and locus standi) as some classical and contemporary national
jurisprudence. In the end, even though an opportunity to make a sharper state-
ment that both 1982 UNCLOS and the ITLOS are independent guardians of the
security of oceans’ environment might have passed by, tendencies are promis-
ing in view of incoming academic and governmental work.

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 Chapter 17

The Common Heritage of Mankind: 21st Century

Challenges of a Revolutionary Concept

María Fernanda Millicay

Introduction

The United Nations Convention on the Law of the Sea1 marked a revolution
not only in international law but also in the history of international rela-
tions.2 It has been said that “[i]n the history of multilateral diplomacy there
has been nothing to equal the 1982 Convention in scope, sophistication and
universality”.3 The Convention is unique not only in its ambition but also in
some innovative concepts it introduced. One of such concepts is the common
heritage of mankind.
Prior to the adoption by the United Nations General Assembly of its
Resolutions on the status of the Area, the seabed and the ocean floor beyond
the limits of national jurisdiction, being the bottom of the high seas, were con-
sidered to be part of the high seas. Thus, the exploitation of their resources was
subject to the freedom of the high seas, on a ‘first come first serve’ basis.
On 1 November 1967, Ambassador Arvid Pardo of Malta made a historic
statement before the First Committee of the General Assembly. That state-
ment clearly shows that at a time of Cold War part of the international com-
munity feared that the lack of a specific legal regime applicable to that area
would lead the seabed and ocean floor beyond the limits of national jurisdic-
tion to become the scenario of the arms race. It was also feared that the seabed
and ocean floor would be progressively appropriated by States and that the
freedom of the high seas would only benefit the few developed countries with
the necessary technology to undertake mining activities in depths of more
than 3,000 meters.4

1 Hereinafter ‘UNCLOS’ or ‘the Convention’.

2 A. Pardo, “An opportunity lost”, in Law of the Sea. U.S. policy dilemma, ed. B. Oxman et al. (San
Francisco: ICS Press, 1983), 14.
3 See Phillip Allot, “Mare nostrum: a new international law of the sea”, 86 American Journal of
International Law (1992): 764.
4 See General Assembly Official Records (GAOR), Twenty-second Session, First Committee,
1515th and 1516th meetings (1967).

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_018

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the common heritage of mankind 273

Both the General Assembly and the negotiators of UNCLOS decided to sub-
tract the seabed and ocean floor beyond the limits of national jurisdiction (‘the
Area’) from both national appropriation and the freedom of the high seas. A
new legal regime was created to put into effect the ‘common heritage of man-
kind’ principle with regard to the Area and its resources.
That major principle provided the basis for the overall regime established in
Part XI of UNCLOS and in the 1994 Agreement relating to the Implementation
of Part XI of the United Nations Convention on the Law of the Sea of 10 December
1982.5 The Convention also created an unprecedented international machin-
ery, the International Seabed Authority, as the trustee of mankind.

The Common Heritage of Mankind and the Emergence of the Legal

Regime of the Area

In the 1960s, it was believed that there were millions of tons of manganese
nodules in the bottom of the sea, and that they could provide supplies of many
industrially relevant metals to last for thousands of years at those days’ rates
of consumption.6
The issue was first raised at the United Nations by Malta,7 and due to its
security implications, it was allocated to the First Committee of the General
Assembly. At the 1515th and 1516th meetings of the First Committee, in
November 1967, Ambassador Arvid Pardo of Malta referred to the remarkable
advances in technology, which made it foreseeable that the seabed and ocean
floor beyond the limits of national jurisdiction8 would become progressively
and competitively appropriated, as well as exploited and used for military
purposes by those who possessed the required technology. He referred to the
presence of manganese nodules in the sea-bottom, mainly in the Pacific and
Indian Oceans and to the impact that production of those minerals from the
sea-bottom could have on the national economies of mineral producer coun-
tries. The intention was to prevent a race for the seabed which could lead to the
exploitation of such vast wealth for the exclusive benefit of less than a handful
of nations.
Malta proposed that an agency assumed jurisdiction as the trustee of all
countries, and that a series of principles be incorporated into a treaty that

5 United Nations, Treaty Series, vol. 1833, No. 31363.

6 See J. Mero, “Mineral deposits in the Sea”, 1 Natural Resources Law (1968): 130.
7 Memorandum submitted by Malta. 22 GAOR. Document A/6695.
8 Arvid Pardo’s intervention made reference to the seabed and ocean floor “beyond the limits
of present national jurisdiction”. Note 4 supra, para. 3.

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274 millicay

would rule the status and use of the seabed and ocean floor beyond national
jurisdiction: the seabed and ocean floor, underlying the sea beyond the lim-
its of national jurisdiction would not be subject to national appropriation; it
would be used exclusively for peaceful purposes; there would be freedom
of scientific research with results thereof available to all; the exploitation of
resources would be undertaken primarily in the interest of mankind, with
particular regard to the needs of poor countries; and all activities in the Area
would be undertaken in a manner consistent with the principles and purposes
of the Charter of the United Nations.
Although the idea of ‘common heritage of mankind’ had already appeared
in the works of Venezuelan jurist Andrés Bello,9 French jurist Lapradelle10
and Argentine José León Suárez,11 it was not until 1967 that declaring the
seabed and ocean floor to be the ‘common heritage of mankind’ was formally
put forward.
The overall implications of the issue was a matter discussed at an Ad Hoc
Committee of 35 States12 created by Resolution 2340 (XXII) on 18 December
1967, which was mandated to address the scientific, technical and legal aspects
of the issue and the practical means to promote international co-operation in
the exploration, conservation and use of the seabed and ocean floor and of the
resources thereof. During its sessions in 1968,13 the Ad Hoc Committee dis-
cussed the content of the ‘common heritage of mankind principle’. The res-
ervation of the area exclusively for peaceful purposes was described by the
Chairman of the Ad Hoc Committee14 as the principle from which the exploi-
tation of the resources of the Area for the benefit of mankind “acquires any
meaning or any hope of realization”.15 The members of the Ad Hoc Committee

9 Cited by C. Armas Barea, “Patrimonio común de la humanidad: naturaleza jurídica, con-

tenido normativo y prospectiva”, 10 Anuario IHLADI (1993): 13.
10 A. Lapradelle, “Le droit de l’Etat sur la mer territoriale”, V Revue Générale de Droit
International Public (1898): 321.
11 League of Nations, Committee of Experts for the Progressive Codification of International
Law (1925–1928), vol. 2, p. 17.
12 Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Ceylon, Chile, Czecho-
slovakia, Ecuador, El Salvador, France, Iceland, India, Italy, Japan, Kenya, Liberia, Libya,
Malta, Norway, Pakistan, Peru, Poland, Romania, Senegal, Somalia, Thailand, Soviet
Union, United Arab Republic, United Kingdom, Tanzania, United States and Yugoslavia.
13 The Ad-Hoc Committee worked on the basis of a Legal working group and a Technical
working group.
14 Amb. Hamilton Shirley Amerasinghe of Sri Lanka.
15 United Nations. Division for Ocean Affairs and the Law of the Sea. Office of Legal Affairs.
Concept of the Common Heritage of Mankind. Legislative history of Articles 133 to 150 and
311(6) of the United Nations Convention on the Law of the Sea (New York: UN, 1996), 40.

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the common heritage of mankind 275

proposed a number of principles: that the Area was a common heritage of

mankind or ‘common patrimony’; the right of all States to exploration and
exploitation of the seabed; exploration, use and exploitation for the benefit
and in the interest of mankind, in particular for the benefit of or taking into
account the interests of developing countries; that the common heritage
require some kind of institutionalized machinery for supervision or regula-
tion. Although five draft resolutions were submitted regarding the principles
to govern the status and use of the seabed and ocean floor beyond the limits of
national jurisdiction and their resources,16 the Ad Hoc Committee was not in a
position to make recommendations on a set of principles.17
In 1969, the General Assembly, by Resolution 2467 A (XXIII), decided to
turn the Ad Hoc Committe into a permanent Committee on the peaceful uses
of the sea-bed and the ocean floor beyond the limits of national jurisdiction
(‘the Seabed Committee’) with an enlarged membership of 42 States. It was
for the Seabed Committee through its Legal Sub-Committee to continue to dis-
cuss the content of the ‘common heritage of mankind’ principle which would
provide the basis for the future regime. The Report of the Seabed Committee
systematized a concept present in many interventions and proposals made
since the issue arose in 1967, clearly indicating that “the notion of the ‘com-
mon heritage of mankind’ would provide the basis for specific principles con-
cerning the area; accordingly, all the rules and principles for activities in the
sea-bed should be based on that notion”.18 On be basis of a draft presented by
the Seabed Committee, the General Assembly adopted, on 15 December 1969,
a Resolution requesting the Secretary General to consult with Members on the
convenience of convening a new Conference on the law of the sea.19
The General Assembly also adopted a ‘moratorium’ on all activities of
exploitation of the resources of the area of the seabed and ocean floor, and
the subsoil thereof, beyond the limits of national jurisdiction.20 The latter was
prompted by the fear that some States would engage in exploitation of the

16 Mexico (A/C.1/L.430), Cyprus, Liberia and Uruguay (A/C.1/L.432/Rev.1 and Add.1),

Malta, Mauritius and United Republic of Tanzania (A/C.1/L.433 and Corr.1), Liberia
(A/C.1/L.434/Rev.1), and Argentina, Brazil, Costa Rica, Ecuador, El Salvador, Guatemala,
Honduras, Libya, Nicaragua, Peru, Spain and Trinidad and Tobago (A/C.1/L.437 and Add.1
and 2).
17 Report of the Ad-Hoc Committee to study the peaceful uses of the seabed and the ocean
floor beyond the limits of national jurisdiction. Document A/7230, para. 89.
18 Report of the Committee on the Peaceful Uses of the Sea-bed and ocean floor beyond the
limits of national jurisdiction. Report 1969, Part Two, General Assembly Official Records
Twenty-fifth session.
19 GA Resolution 2574 A (XXIV).
20 GA Resolution 2575 D (XXIV).

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276 millicay

mineral resources of the seabed and the ocean floor beyond national jurisdic-
tion before a legal regime was internationally agreed upon. The Moratorium
Resolution was adopted by two thirds of the countries voting at the General
Assembly.21 Notably, many of the countries with the necessary technology to
carry out activities in the Area voted against the Resolution.22
The initial work of the Seabed Committee led to the formulation of a dec-
laration of principles applicable to the Area23 and to the emergence of agree-
ment on the need for the establishment of a regime and on the use of the
resources for the benefit of mankind taking into account the special interests
and needs of developing countries.
On 17 December 1970, the General Assembly noted that the “the existing
legal regime of the high seas does not provide substantive rules for regulat-
ing the exploration of the (. . .) area and the exploitation of its resources”,24
and adopted the Declaration of Principles Governing the Sea-Bed and the
Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction
(Resolution 2749 (XXV)).
The principles that the General Assembly ‘solemnly declared’ were:

– the seabed and ocean floor, and the subsoil thereof, beyond the limits of
national jurisdiction (the Area), as well as the resources thereof, are the
common heritage of mankind,
– the area shall not be subject to appropriation by any means by States or
persons, and no State shall claim or exercise sovereignty or sovereign rights
over any part thereof,
– no State or person shall claim, exercise or acquire rights with respect to the
area or its resources incompatible with the international regime to be estab-
lished and the principles of the Declaration,
– all activities regarding the exploration and exploitation of the resources of
the area and other related activities shall be governed by the international
regime to be established,
– the area shall be open to use exclusively for peaceful purposes by all States,
whether coastal or land-locked, without discrimination, in accordance with
the international regime to be established,

21 62 votes in favor, 28 against, and 28 abstentions.

22 See U.N. General Assembly voting records.
23 Report of the Committee on the Peaceful uses of the Sea-Bed and the ocean floor beyond
the limits of national jurisdiction. 24 GAOR Doc. A/7622 (Supp. No. 22), para. 93.
24 GA Resolution 2749 (XXV), third preambular paragraph.

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the common heritage of mankind 277

– states shall act in the area in accordance with the applicable principles and
rules of international law, including the Charter of the United Nations
and the Declaration of Principles of International Law concerning Friendly
Relations and Co-operation among States,25
– the exploration of the area and the exploitation of its resources shall be car-
ried out for the benefit of mankind as a whole, irrespective of the geographi-
cal location of States, whether land-locked or coastal, and taking into
particular consideration the interests and needs of the developing
countries,
– States shall promote international co-operation in scientific research exclu-
sively for peaceful purposes.

Resolution 2749 (XXV) set the pillars for the future negotiations on the regime
applicable to the seabed and ocean floor beyond the limits of national jurisdic-
tion, including for the creation of an international machinery. Moreover, the
overwhelming support by which this resolution was adopted26 strengthened
the status of the previous ‘Moratorium Resolution’.
Also, the wide support of Members States of the United Nations for a uni-
versal conference led the General Assembly to convening in 1973 the Third
United Nations Conference on the Law of the Sea.27 The Conference would
consider not only the question of the regime for the Area but also ‘a broad
range of related issues’,28 including issues relating to the traditional law of the
sea and some new ones.
The Seabed Committee, now mandated to prepare the Conference, worked
between 1971 and 197329 on the basis of three sub-Committees. The First sub-
committee was responsible for the draft articles on the international regime for
the area and on the structure of the international machinery. The Committee
considered proposals made by States, reports of the Secretary General, the four
1958 Geneva Conventions, relevant decisions of the International Court of
Justice and the Declaration of Principles embodied in Resolution 2749 (XXV).30
An important part of the historical background that served as a framework
to the negotiations on the law of the sea in general and on the legal regime

25 GA Resolution 2625 (XXV) of 24 October 1970.

26 108 votes in favor, none against and 14 abstentions.
27 Resolution 2750 C (XXV).
28 Resolution 2750 C (XXV), operative paragraph 2.
29 The Seabed Committee met three times in 1971, twice in 1972 and twice in 1973.
30 See J. Stevenson, et. al. “The preparations for the Law of the Sea Conference”. 68 American
Journal of International Law (1974).

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278 millicay

applicable to the Area in particular should also be mentioned. In 1964, closely

related to the United Nations Conference on Trade and Development, the
group of developing countries named ‘G77’ was established.31 In parallel, in
1973, the proposal for a new international economic order (‘NIEO’)32 was put
forth by the members of the Non Aligned Movement at the Algiers Summit. At
that summit, they addressed the issue of deterioration in the economic condi-
tions in the developing countries and stressed the need to enhance economic
cooperation, and called for a revision of the global economic regime and the
creation of a NIEO that would be more advantageous to the developing coun-
tries of the South. That movement had its reflection also at the United Nations
when the General Assembly adopted the Declaration and the Programme
of Action on the New International Economic Order,33 and to the Charter of
Economic Rights and Duties of States.34 The Declaration of Principles contained
in GA Resolution 2749 (XXV) was in line with that ideology, so the law of the
sea represented for developing countries the first opportunity to incorporate

31 Joint Declaration of the Seventy-seven developing countries made at the conclusion of

the United Nations Conference on Trade and Development. Geneva, 15 June 1964. To
date, the Members of the Group, now named “G77 and China” are 133. For further read-
ing see A. Adede, “The Group of 77 and the establishment of the International Sea-Bed
Authority”. 7 Ocean Development and International Law (1979): 31. For information about
the Group see L. Swart, et al., “The Group of 77: perspective on its role in the UN General
Assembly”. (New York: Center for UN Reform Education, 2010), and www.g77.org.
32 For further reading on the NIEO see A. Rozental, “The Charter of Economic Rights
and Duties of States and the New International Economic Order”, 16 Virginia Journal
of International Law (1975–1976); C. Ferguson, “The Politics of the New International
Economic Order”, Proceedings of the Academy of Political Science, Vol. 32, No. 4 (1977),
142–158; G. Haight, “The New International Economic Order and the Charter of Economic
Rights and Duties of States”, 9 International Lawyer (1975): 591; T. Walde, “A requiem for
the ‘New international economic order. The rise and fall of paradigms in international
economic law”, in International legal issues arising under the United Nations decade
of international law. Kluwer Law International (The Hague: Martinus Nihjoff, 1995);
E. Mann-Borgese, “The New International Economic Order and the Law of the Sea”, 14 San
Diego Law Review (1976–1977), 584; J.N. Moore, “Law of the Sea and the New International
Economic Order”. 3 Public Law Forum (1984–1984), 13; J. Gamble, “The Third United
Nations Conference on the Law of the Sea and the New International Economic Order”,
Loyola of Los Angeles International and Comparative Law Review (1983), 65; A. Vratusa,
“Convention on the Law of the Sea in the light of the struggle for the New International
Economic Order”, in Essays on the New Law of the Sea, ed. B. Vukas (Zagreb: University of
Zagreb, 1985).
33 UNGA Resolutions 3201 (S-VI) and 3202 (S-VI).
34 UNGA Resolution 3281 (XXIX).

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the common heritage of mankind 279

the principles of the NIEO into positive international law. UNCLOS was the
first negotiation of an international instrument for the G77 as a group. Due to
diversity of interests of its members regarding other aspects of the negotiation,
it was the regime for the Area the issue on which a North-South divide was evi-
denced, and it catalysed the new ideology of the NIEO due to the coordinated
action of a group composed by developing countries.
Another historic element to be taken into consideration is the Declaration
of the United Nations Conference on the Human Environment (“Stockholm
Declaration”—1972), which raised awareness on the need to include into posi-
tive international law norms on the protection and preservation of the marine
environment.
While the First United Nations Conference on the Law of the Sea (1958) had
counted on preparatory work by the International Law Commission, includ-
ing draft texts, the mandate of the Seabed Committee did not include the
preparation of a draft convention.35 After three sessions of negotiations,
the Third UN Conference on the Law of the Sea decided that the Chair of the
Conference and the chairs of the three Main Committees would prepare an
Informal Composite Negotiating Text36 (ICNT) which brought together in one
document all the drafts.37 Despite being an informal document, the consolida-
tion in the ICNT meant an important progress towards the elaboration of a
comprehensive international regime for the law of the sea.38 The United States
and other developed countries reacted negatively to Part XI of the ICNT, and
the House of Representatives of the United States passed a bill “to promote the
rderly development of hard mineral resources in the deep seabed, pending
adoption of an international regime relating thereto”.39 The enactment of
unilateral legislation led to the reaction of the G77, which made several state-
ments against them during the following sessions.40

35 See M. Nordquist, ed., United Nations Convention on the Law of the Sea 1982. A commen-
tary, vol 1. (Dordrecht/Boston/Lancaster: Martinus Nijhoff Publishers, 1985).
36 A/CONF.62/WP.10.
37 See “Informal Composite Negotiating Text”. Explanatory memorandum by the President.
A/CONF.62/WP.10 Add.1.
38 See B. Zuleta, “Introduction to the United Nations Convention on the Law of the Sea”.
Statement reproduced by Myron H. Nordquist, op. cit.
39 HR 3350, 95th Cong. 2d. sess. (1978) July 26, 1978.
40 See for example Letter dated 23 August 1979 from the Chairman of the Group of 77 to the
President of the Conference, document A/CONF.62/89; and Letter dated 29 August 1980
from the Chairman of the Group of 77 to the President of the Conference, document A/
CONF.62/106.

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280 millicay

In January 1981, the newly elected administration of the United States took
office, and two months later, the United States instructed its delegation at the
Conference “to seek to ensure that the negotiations do not end (. . .) pending a
policy review by the United States Government”.41 The need for revision by the
United States focused on Part XI. It was too late. That same year, after sessions
of informal documents, an ‘official’ Draft Convention42 was prepared.
On 30 April 1982, the Convention was adopted by vote.43 The Convention,
opened for signature in Montego Bay, Jamaica, was immediately signed by
119 States. Until the period for signature expired, on 9 December 1984, 155
States and 4 entities44 had signed it. Several developed countries, including
the United States, Italy, the United Kingdom and Germany did not sign the
Convention due to dissatisfaction with the regime for the Area contained in
Part XI.
In accordance with Resolution I of the III Conference, a Preparatory
Commission (‘PrepCom’) was established, to start working before the entry
into force of the Convention, and functioned from 1983 in Jamaica with the aim
of taking all necessary measures to ensure the entry into effective operation of
the Authority and the International Tribunal for the Law of the Sea.45 The
PrepCom also devoted itself to the ‘pioneer activities’ as defined in Resolution II
of the Third Conference, which provided that those countries and mining con-
sortia that had made significant investments in the surveillance of polymetal-
lic nodules before the entry into force of UNCLOS would be treated as ‘pioneer
investors’ with exclusive rights for carrying out exploration activities in areas
allocated to them. Seven pioneer investors registered under the rules adopted
by the Conference were given that status.46

41 See B. Oxman, “The Third United Nations Conference on the Law of the Sea: The Tenth
Session (1981)”. 76 American Journal of International Law (1982).
42 A/CONF.62/L.78.
43 130 votes in favor, 4 against and 18 abstentions.
44 For the provisions on signature by “entities” see Article 305 of UNCLOS.
45 Resolution I of the Third United Nations Conference on the Law of the Sea.
46 The Government of India, registered on 17 August 1987 (LOS/PCN/94 and LOS/PCN/
94/Corr.1); L’Institut Français de Recherche pour l’Exploitation de la Mer (IFREMER)/
l’Association Française pour l’Etude et la Recherche de Nodules (AFERNOD)
(France), registered on 17 December 1987 (LOS/PCN/97); Deep Ocean Resources
Development Co., Ltd. (DORD) (Japan), registered on 17 December 1987 (LOS/PCN/98);
YUZHMORGEOLOGIYA (Russian Federation), registered on 17 December 1987 (LOS/
PCN/99), the China Ocean Mineral Resources Research and Development Association
(COMRA) (People’s Republic of China), registered on 5 March 1991 (LOS/PCN/117);
the Interoceanmetal Joint Organization (IOM) (Republic of Bulgaria, Republic of
Cuba, Czech Republic, Republic of Poland, Russian Federation and Slovak Republic),

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the common heritage of mankind 281

It was not until 1989 that the problems that Part XI posed to several devel-
oped countries were generally admitted.47 In July 1990, the Secretary General
of the United Nations Javier Pérez de Cuéllar started informal consultations
in order to solve the issues that prevented the universal acceptance of the
Convention. One of the issues noted by the Secretary General was that since
the adoption of the Convention, important political and economic changes
had taken place at a global level, including the prevalence of a clearly oriented
market economy.
The informal consultations, which were continued by the next Secretary
General, Boutros Boutros-Ghali, took place from 1990 to 1994. The consultations
identified nine issues of difficulty: the costs to States parties, the Enterprise,
decision-making at the Authority, the Review Conference, the transfer of tech-
nology, production limitation, the compensation fund, the financial terms of
contracts, and environmental considerations. Those were the issues regarding
which the ‘Implementing Agreement’ would in fact amend UNCLOS.
The general view during the consultations was that an instrument of a bind-
ing nature should be sought but that at the same time the unity of the regime
should be preserved, and it was agreed that the provisions of the Agreement
and Part XI should be interpreted and applied together as a single instrument48
and that after the adoption of the Agreement, any instrument of ratification or
formal confirmation of or accession to the Convention should also represent
consent to be bound by the Agreement.49 At a resumed forty-eighth session, the
General Assembly adopted, through Resolution 48/263, the Implementation
Agreement, which entered into force on 28 July 1996.

The Common Heritage of Mankind Principle and the Regime of

Part XI and the 1994 Agreement

Part XI of the Convention, complemented by the 1994 Agreement, provides the

legal regime applicable to the Area and to the exploration and exploitation of
its resources.

registered on 21 August 1991 (LOS/PCN/122); the Government of the Republic

of Korea, registered on 2 August 1994 (LOS/PCN/L.115/Rev.1 and Corr.1). See also
Resolution II of the Third United Nations Conference on the Law of the Sea.
47 See R. Platzöder, “Substantive changes in a multilateral treaty before its entry into force:
the case of the 1982 United Nations Convention on the Law of the Sea”. 4 European Journal
of International Law, 390 (1993).
48 1994 Agreement, Article 2 ‘Relationship between this Agreement and Part XI’.
49 1994 Agreement, Article 3 ‘Consent to be bound’.

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282 millicay

Following the terms of General Assembly Resolution 2749 (XXV), UNCLOS

defined the Area as ‘the seabed and oceans floor and subsoil thereof, beyond
the limits of national jurisdiction’.50 Although the Seabed Committee had
received proposals for defining the limits of the Area, at the Third Conference
it became clear that the limits of the Area, and therefore the geographical
extension of the common heritage of mankind, would be dependent upon
‘the limits of national jurisdiction’, i.e. another major issue being negotiated
in the Conference: the outer limit of the continental shelf. Article 134 of the
Convention, by making express reference to Part VI, makes it clear that
the limits of the Area are determined by the limits of the continental shelves
of coastal States.
Naturally, also the ‘principles governing the Area’ contained in Section of
Part XI follow the terms of General Assembly Resolution 2749 (XXV). It could
have not been otherwise, as the Convention states, in its Preamble, that the
States Parties desired

by this Convention to develop the principles embodied in resolution 2749

(XXV) of 17 December 1970 in which the General Assembly of the United
Nations solemnly declared inter alia that the area of the seabed and
ocean floor and the subsoil thereof, beyond the limits of national juris-
diction, as well as its resources, are the common heritage of mankind, the
exploration and exploitation of which shall be carried out for the benefit
of mankind as a whole, irrespective of the geographical location of
States.51

The principle leading all others is that ‘the Area and its resources are the com-
mon heritage of mankind’.52 Consequently, no State can claim or exercise
sovereignty or sovereign rights over any part of the Area or its resources, not
can States or persons appropriate any part thereof, and no State or person can
claim, acquire or exercise rights with respect of minerals of the Area except in
accordance with Part XI;53 all rights regarding resources of the Area are vested

50 UNCLOS, Article 1 ‘Use of terms and scope’, subpara. (1). It is worth recalling that the
Convention safeguarded the legal regime of the superjacent water column, when provid-
ing in Article 135 that “[n]either this Part nor any rights granted or exercised pursuant
theretoshall affect the legal status of the waters superjacent to the Area or that of the air
space above those waters”.
51 UNCLOS, Preamble, fifth paragraph.
52 UNCLOS, Article 136 ‘Common heritage of mankind’.
53 UNCLOS, Article 137 ‘Legal status of the Area and its resources’, paras. 1 and 3.

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the common heritage of mankind 283

in mankind as a whole on whose behalf the Authority acts.54 The benefit of

mankind is contained in Article 140, which also establishes that the Authority
will provide for the equitable sharing of financial and other economic ben-
efits derived from activities in the Area through appropriate mechanisms to
be agreed upon by the Authority.55 Also, the Area and its resources shall be
used exclusively for peaceful purposes,56 and marine scientific research in the
Area shall be carried out exclusively for peaceful purposes and for the benefit
of mankind as a whole.57 Although Part XIV of the Convention refers to the
transfer of marine technology, Part XI contains specific provisions on how
the Authority is expected to promote the transfer of marine technology to
developing countries and to the Enterprise,58 the organ through which the
Seabed Authority can carry out activities in the Area.59
One aspect in which UNCLOS shows a partial difference with regard to
the language of General Assembly Resolution 2749 (XXV) is the scope of ‘the
resources of the Area’. This aspect was to become highly relevant in the con-
text of the current issue of the conservation and sustainable of biological com-
munities of the Area. The resolution solemnly declared that the Area and its
resources are the common heritage of mankind, without any limitation as to
the scope of ‘resources’. Article 133(a) of UNCLOS has a more limited defini-
tion of ‘resources of the Area’. Such term had not been specifically defined
in the different proposals for the regime of the Area until the third session
(1975),60 when the ISNT proposed to define ‘resources’ as ‘resources in situ’.61
At same session, following a proposal made by the United States, the definition
considered and finally included in UNCLOS was that ‘resources’ would mean
‘mineral resources in situ’.62 Article 133 of the Convention gives the following
definition “‘resources’ means all solid, liquid or gaseous mineral resources in
situ in the Area at or beneath the seabed, including polymetallic nodules”.
The regime of the Area, therefore, provides a system for the exploration and
exploitation of mineral resources. Having the common heritage of mankind as
its basis, the regime contains rules that are quite unique in the law of the sea.

54 UNCLOS, Article 137, para. 2.

55 See also para. 160 (f)(i) of UNCLOS.
56 UNCLOS, Article 141 ‘Use of the Area exclusively for peaceful purposes’.
57 UNCLOS, Article 143 ‘Marine scientific research’.
58 UNCLOS, Article 144 ‘Transfer of marine technology’.
59 See UNCLOS, Article 170.
60 See S. Nandan, et al. United Nations Convention on the Law of the Sea 1982. A commentary,
vol. VI. (New York: UN, 1982), 71–72.
61 Document A/CONF.62/WP.8/Part I.
62 See S. Nandan, et al. op. cit., 73–75.

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The system for exploration and exploitation requires from States not only
a general conduct adjusted to Part XI, to the principles of the United Nations
Charter and to other rules of international law,63 but also requires that com-
panies willing to engage in activities in the Area are sponsored by their States
of nationality.64 The sponsoring State has the responsibility to ensure that the
sponsored contractor carries out activities in the Area in conformity with
the terms of its contract and its obligations under the Convention.65 A spon-
soring State is therefore expected to take all ‘due diligence’ measures to ensure
compliance by the contractor, otherwise the State itself could be liable for
damage caused by the contractor.66
Very importantly, the Convention gave the Authority, through its organs,
the power to adopt rules, regulations and procedures in accordance with the
provisions of the Convention, such as those for prospecting, exploration and
exploitation in the Area,67 and to ensure effective protection for the marine
environment from harmful effects which may arise from such activities.68
The principle of the common heritage of mankind was assumed to be
part of the provisions of the Convention even if it were to be amended in the
future. The Convention contains provisions for its amendment, including a
specific regime for amendments to the provisions of the Convention relating
exclusively to the activities in the Area, which requires the intervention of the
organs of the Authority.69
UNCLOS reflects the agreement of States Parties to protect the common her-
itage of mankind principle from possible future amendments. Article 311 (2) of
the Convention provides that two or more States Parties may conclude agree-
ments modifying or suspending the operation of provisions of the Convention
solely in their relations, provided that such agreements do not refer to a provi-
sion from which derogation would be incompatible with the effective execu-
tion of the object and purpose of the Convention, and also provided further
that such agreements “shall not affect the application of the basic principles

63 UNCLOS, Article 138 ‘General conduct of States in relation to the Area’.

64 UNCLOS, Article 153 ‘System of exploration and exploitation’ and Annex III ‘Basic condi-
tions of prospecting, exploration and exploitation’.
65 UNCLOS, Article 139 ‘Responsibility to ensure compliance and liability.
66 See Advisory Opinion of the International Tribunal for the Law of the Sea, Case No. 17
‘Responsibilities and obligations of States sponsoring persons and entities with respect to
activities in the Area’, 11 February 2011.
67 UNCLOS, Article 162 as amended by the Agreement, Annex, Section 1, paras. 15 and 16.
68 UNCLOS, Article 145.
69 UNCLOS, Article 314.

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embodied therein”, That provision is applicable to all the basic principles of

each Part of UNCLOS.
But there is a specific safeguard to the common heritage of mankind prin-
ciple. According to Article 311 (6), “States Parties agree that there shall be no
amendments to the basic principle relating to the common heritage of man-
kind set forth in article 136 and that they shall not be party to any agreement in
derogation thereof”. This provision raised some discussion on whether it pro-
vides for a rule of jus cogens (peremptory norm). The provision was included
in the draft Convention following a proposal made by the delegation of Chile,
which proposed that the basic principle of the common heritage of mankind
should be recognized as a norm of ‘jus cogens’. The proposal made by Chile
indicated that

[t]he States Parties to the present Convention accept and recognize on

behalf of the international community as a whole that the provision
relating to the common heritage of mankind set out in article 136 is a
peremptory norm of general international law from which no derogation
is permitted and which, consequently, can be modified only by a subse-
quent norm of general international law having the same character.70

That formulation of the proposal was difficult to accept by some delegations,

and it was re-submitted in 1980. At that time, there was some difficulty with
the wording although there was strong general support for safeguarding the
principle. The language contained in text of paragraph 6 of Article 31171 is clear
in the intention to maintain the fundamental nature of the common heritage
of mankind principle within the structure of the Convention.

Functioning of the International Seabed Authority

The Authority is one of the three organizations created by UNCLOS,72 and the
only one of an intergovernmental nature. The Authority is the organization
through which States Parties to the Convention shall, in accordance with the
regime for the seabed and ocean floor and subsoil thereof beyond the limits

70 Eigth Session, Part II. Informal proposal by Chile, FC/14 of 20 August 1979.
71 See “Preliminary Report of the President on the Work of the Informal Plenary Meeting of
the Conference on Proposals for General Provisions”, A/CONF.62/L.53, 29 March 1980.
72 The other two are the International Tribunal for the Law of the Sea (ITLOS) and the
Commission on the Limits of the Continental Shelf (CLCS).

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of national jurisdiction (the Area) established in Part XI and the Agreement,

organize and control activities in the Area, particularly with a view to admin-
istering its resources. It came into existence on 16 November 1994, upon the
entry into force of the Convention, and it became fully operational as an
autonomous international organization in June 1996. It has three organs: the
Council, the Assembly and the Secretariat.
The Council is the executive organ of the Authority, and its composition
reflects the need to find a balance of interests regarding the potential pro-
duction of the categories of minerals of the Area and its possible economic
impacts. It is composed by the following States Parties: the four major consum-
ers or major importers73 of the categories of minerals to be derived from the
Area—provided that the four include the Easter European State with the larg-
est economy—; four members from among the States Parties which have made
the largest investments in preparation for and in the conduct of activities in the
Area, either directly or through their nationals; four members from among
States Parties which, on the basis of production in areas under their jurisdic-
tion, are major net exporters of the categories of minerals to be derived from the
Area—including at least two developing States whose exports of such minerals
have a substantial bearing upon their economies—; six members from among
developing States Parties, representing special interests—the ‘special interests’
include those of States with large populations, States which are land—
locked or geographically disadvantaged, island States, States which are major
importers of the categories of minerals to be derived from the Area, and States
which are potential producers for such minerals and least developed States—;
and eighteen members elected according to the principle of ensuring an equi-
table geographical distribution of seats in the Council as a whole.74
The Council has the function of adopting policies in accordance with
the Convention and the general policies determined by the Assembly. The
Council, with the guidance of the Legal and Technical Commission, its subsid-
iary body, draws up regulations for prospecting, exploration and exploitation
of the different categories of minerals to be adopted by the Assembly, adopts
environmental regulations and standards in accordance with article 145 of the

73 Those that have consumed more than 2 per cent in value terms of total world consump-
tion or have had net imports of more than 2 per cent in value terms of total world imports
of the commodities produced from the categories of minerals to be derived from the Area
during the last 5 years for which statistics are available.
74 For the current composition of the Council see http://isa.org.jm/en/about/members/
council/composition.

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Convention, approves in the form of contacts the plans of work for State and
private entities to carry out activities in the Area. Also, in cases of an envi-
ronmental arising from seabed activities, the Council can issue emergency
orders to prevent harm to the marine environment, including the suspension
or adjustment of operations.75
The Assembly is the plenary organ of the Authority, and as such is respon-
sible for establishing the general policies for activities in the Area. It is com-
posed by all Parties to the Law of the Sea Convention, which currently are
166. The Assembly also elects the Members of the Council and other bodies
and the Secretary-General, in charge of the Secretariat of the Authority.
Following recommendation by the Council, the assembly approves the rules,
regulations and procedures of the Authority for prospecting, exploration and
exploitation in the Area.
After its establishment in 1996, the International Seabed Authority devoted
itself to the development of rules and regulations for prospecting and explo-
ration of polymetallic nodules. Priority in the work related to this category of
resources is provided for in the Convention.76 The ‘Regulations on Prospecting
and Exploration for Polymetallic Nodules in the Area’ (known as ‘the Mining
Code’), were adopted in July 2000.77 Consequently, between 2001 and 2002,
the Authority entered into 15-year contracts with the seven pioneer inves-
tors registered under resolution II of the Third Conference.78 After the adop-
tion of the Mining Code, the ISA devoted itself to the consideration of the
rules and regulations applicable to activities related to other categories of
resources of the area, i.e. hydrothermal polymetallic sulphides and cobalt-rich

75 See ‘Emergency orders’ in Rule 33 of the Regulations on Prospecting and Exploration

for Polymetallic Nodules in the Area, in Rule 35 of the Regulations on prospecting and
exploration for polymetallic sulphides in the Area and in Rule 35 of the Regulations on
Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area.
76 UNCLOS. Article 162.2 (o) (ii).
77 Document ISBA/6/A/18.
78 The Government of India, L’Institut Français de Recherche pour l’Exploitation de
la Mer. (IFREMER)/l’Association Française pour l’Etude et la Recherche de Nodules
(AFERNOD) (France), Deep Ocean Resources Development Co., Ltd. (DORD) (Japan),
YUZHMORGEOLOGIYA (Russian Federation), the China Ocean Mineral Resources
Research and Development Association (COMRA) (People’s Republic of China), the
Interoceanmetal Joint Organization (IOM) (Republic of Bulgaria, Republic of Cuba, Czech
Republic, Republic of Poland, Russian Federation and Slovak Republic), the Government
of the Republic of Korea.

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ferromanganese crusts,79 but it also considered amendments to the Mining

Code, with a view to enhancing the rules on the protection and preservation of
the marine environment during prospecting. In November 2010, the Assembly
adopted the ‘Regulations on prospecting and exploration for polymetallic
sulphides in the Area’,80 and in October 2012, it adopted the ‘Regulations on
Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the
Area’.81 The amendments to the Mining Code were adopted in July 2013.82
The ISBA is currently at a very initial stage of its consideration of the
issue of the development of rules for exploitation of polymetallic nodules.

The New Challenge: Deep Seabed Biological Communities

When the negotiations of the regime for the Area started, it was generally
assumed that the bottom of the sea under the high seas was rich only in min-
eral resources, as the absence of light at the sea bottom led to the conclusion
that photosynthesis was not possible. Discoveries that took place from the late
1970s have evidenced the existence of microbes and animals that live in the
sea bottom, whose life is based on a different process, called chemosynthesis.
Deep-sea hydrothermal vents were discovered in 1977. Hydrothermal vents
are found in the mid-ocean ridges and also at convergent plate boundaries
where the outer layer subdues under the abutting continental landmass form-
ing submarine trenches. The vents are formed through a process that starts
with the inflow of sea water into fractures of the sea-bottom. That cold water
reaches the underlying layers of magma, and then—again through fractures of
the sea-bottom—comes back to the seabed as boiling water enriched by the
minerals from the rock, which precipitate when in contact with cold water,
forming ‘chimneys’ or vents. The result of this process is the production of
chemical energy from the inner layers of the earth that is used by certain bio-
logical organisms. Instead of photosynthesis, hydrothermal vent ecosystems
live of chemosynthesis, a process that uses energy from chemical oxidations to
produce organic matter from CO2 and mineral nutrients. Thanks to this pro-
cess, vents have high concentrations of biomass. The biological communities

79 See Report of the Secretary-General of the International Seabed Authority under article
166, paragraph 4, of the United Nations Convention on the Law of the Sea. Document
ISA/8/A/5, para. 34.
80 Document ISBA/16/A/12/Rev.1.
81 Document ISBA/18/A/11.
82 Documents ISBA/19/C/17 and ISBA/19/A/9.

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that inhabit the vents, in particular the chemosynthetic organisms, are at the
base of the food chain of a diverse and rich ecosystem. Consumers within
the vent community which depend exclusively on these primary producers are
endosymbiotic tubeworms, vesicomyd clams, shrimps and mussels. At pres-
ent, around five hundred species have been discovered.83 The major part of
those species is highly endemic, and therefore cannot be found anywhere else.
Therefore, the biological communities vary between vent sites and regions.
Some species are common to more than one site while some have—so far—
only been found on one site.
The micro fauna and bacteria of the deep seabed are called ‘extremophiles’
or ‘hyperthermophiles’, as they live in conditions of darkness, extremely high
temperatures and pressure, which has made them resistant to heat and pres-
sure. Therefore, there is increasing interest from the scientific community,
biotechnology and pharmaceutical companies for searching species which
produce beneficial substances and genes which could potentially be used for
pharmaceutical or industrial processes.84
Genetic resources, i.e. any material of plant, animal, microbial or other
origin containing functional units of heredity of actual or potential value,
are components of biodiversity85 and the basic raw material for the produc-
tion of food, pharmaceuticals, seeds, cosmetics, among others. Access to such
resources and exclusive appropriation by means of intellectual property rights
have global economic and social implications.
The main commercial interest in the seabed biodiversity, in particular that
of the hydrothermal vents, is its exploitation through biotechnology,86 i.e. the
development of products from derivatives of thermophiles or hyperthermo-
philes of hydrothermal vents.87 According to some estimations, the potential
market for industrial uses of these microorganisms could be of USD 3 billion

83 See S. Arico, et al., Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal
and Policy Aspects. (Yokohama: UNU-IAS, 2005).
84 E. Mann-Borgese, “The Common Heritage of Mankind: from non-living to living resources
and beyond”, in N. Ando, et.al. Liber amicorum Judge Shigeru Oda, vol. 2 (The Hague/
London/New York: Kluwer Law International, 2002).
85 See Convention on Biological Diversity. Article 2.
86 See L. Glowka, “The deepest of ironies: Genetic resources, marine scientific research and
the Area”, 12 Ocean Yearbook (1996), 154.
87 See D.K. Leary, “Bioprospecting and the genetic resources of hydrothermal vents on the
high seas: what is the existing legal position, where are we heading and what are our
options?”, Macquarie Journal of International and Comparative Environmental Law, Vol. 1
(2004), 137.

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a year.88 Many scientific research institutions are conducting marine scientific

research in relation to hydrothermal vents; and there are several examples of
this kind of institutions collaborating with the industry.89 Although the biodi-
versity of the deep seabed has hardly been explored,90 it must be mentioned
that several deep seabed organisms have already been used for commercial
applications and therefore patented.91
The enormous potential represented by biodiversity shows the use of bio-
logical organisms of the Area is the most immediate and lucrative activity of
exploitation of the resources of the Area.92
Human activity regarding the organisms of the deep seabed also entails
environmental impacts. Once they start, deep seabed mining activities will
represent a threat to biodiversity associated with those formations,93 as they
imply disturbance to living organisms or even the removal of those that are
attached to mineral deposits. Mining for polymetallic sulphide deposits poses a
great potential physical threat to biological communities of the vents, as it may
imply physical damage to the vents.94 As regards vent and other deep seabed
communities, the most immediate threat may be marine scientific research,
as many research activities have sampling of macro and micro-organisms as
their primary goal, and sampling could cause adverse impacts on the commu-
nities involved.95 Effects of biological and geological sampling operations on

88 See M. Gorina-Ysern, “Legal issues raised by the profitable biotechnology development

through marine scientific research”, ASIL Insights, November (2003); L. Glowka, “Beyond
the deepest of ironies: genetic resources, marine scientific research and international sea-
bed Area”, in J.P. Beurier, et al. “New Technologies and law of the marine environment”
(The Hague/London/Boston: Kluwer Law International, 2000).
89 See D. Leary, op. cit., Businessweek 1 April 1996 “Extreme enzymes. Science is commercial-
izing nature’s diehard proteins”, and M. Gorina-Ysern, “Marine scientific research activi-
ties as the legal basis for intellectual property claims?”, 22 Marine Policy (1998), 337.
90 See L. Glowka, “Genetic resources, marine scientific research and the International
Seabed Area”, 8 Review of European Community and International Environmental Law
(1999), 56.
91 S. Arico, et al., op. cit., 19–20, L. Glowka, op. cit.
92 See L. Glowka, op. cit. For additional information about uses and existing patents see
F. Millicay, “A legal regime for the biodiversity of the Area”, in Law, science and ocean
management, ed. M. Nordquist, et al. (Leiden: Brill, 2007).
93 See Report of the Secretary General. Oceans and the Law of the Sea, Addendum
(Document A/59/62/Add.1), paras. 227–231.
94 Idem note 63 supra.
95 See L. Gowka, “Testing the waters: establishing the legal basis to conserve and sustainably
use hydrothermal vents and their biological communities”, 8 Inter Ridge News (1999), 45.

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vent faunal communities have already been documented.96 Another negative

impact is that of bottom trawling on biological communities of seamounts and
other underwater formations.97
The living resources of the seabed and ocean floor beyond national jurisdic-
tion are inextricably linked to the seabed, and can be seen as representing to
the Area what the sedentary species are to the continental shelf. They gave rise
to an important current legal and political discussion.
Part XI of the Convention and the provisions of the 1994 Agreement pro-
vide a comprehensive regime for the activities in the Area, as defined Article
1(1)(3). Nevertheless, the Convention presents a legal challenge: the definition
of ‘resources of the Area’ provided in Article 133(a) of the Convention is lim-
ited to ‘mineral resources’. Consequently, the whole system of exploration and
exploitation was designed for mineral resources. This has led to diverging posi-
tions that re-edited the North-South divide. Some developed countries have
argued that due to the lack of specific provisions of Part XI, and in particular
in light of the definition of ‘resources’ given by Article 133, biological resources
beyond national jurisdiction, including those of the seabed and ocean floor,
are subject to the “first come first serve” rule of the high seas. Conversely,
developing countries argue the principle of the common heritage of mankind
applies to the biological resources of the Area. Their interpretation is that not-
withstanding the limited definition of ‘resources’, both the General Assembly
and UNCLOS provide that “the Area and its resources are the common heritage
of mankind;” therefore, as in the structure of UNCLOS the legal regime of each
maritime area is applicable to the resources thereof on the basis of geographi-
cal appurtenance, it is not acceptable that the Area itself is the common heri-
tage of mankind and some of its resources follow that legal nature while some
others do not.
They have another strong argument, which relates to marine scientific
research. While according to Articles 87 and 257, marine scientific research
is one of the freedoms of the high seas, marine scientific research in the Area
must be carried out ‘for the benefit of mankind as a whole’;98 they thus argue
that if marine scientific research in the Area—including MSR on biological
organisms—is to benefit mankind, it would not be reasonable to adopt the

96 UNEP/CBD/SBSTTA/8/INF/3/Rev.1, paras. 4–5.

97 See S. Maxwell, “Medicines from the deep. The Importance of Protecting the High Seas
from Bottom Trawling”, Natural Resources Defense Council (March 2005).
98 See UNCLOS, Article 143 ‘Marine scientific research’ and Article 256 ‘Marine scientific
research in the Area’.

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‘first-come-first-serve’ rule of the high seas for the exploration and exploitation
of the same organisms.
In 2006, the Ad Hoc Open Ended Working Group established by UN General
Assembly resolution 59/24, initiated its consideration of the issue ‘conser-
vation and sustainable use of marine biological diversity beyond areas of
national jurisdiction’. The General Assembly decided to include in the sphere
of competence of the Working Group the biodiversity of two maritime areas
with two distinct legal regimes.
Little progress was made during the first years, as the above-mentioned
discussion on the legal regime dominated the scene. But in 2011, the Working
Group recommended that “a process be initiated, by the General Assembly,
with a view to ensuring that the legal framework for the conservation and
sustainable use” of marine biodiversity of areas beyond national jurisdic-
tion “effectively addresses those issues by identifying gaps and ways forward,
including through the implementation of existing instruments and the pos-
sible development of a multilateral agreement under the United Nations
Convention on the Law of the Sea”.99 The Working Group also recommended
that the process

would address the conservation and sustainable use of marine biodiver-

sity in areas beyond national jurisdiction, in particular, together and as a
whole, marine genetic resources, including questions on the sharing of
benefits, measures such as area-based management tools, including
marine protected areas, and environmental impact assessments, capac-
ity-building and the transfer of marine technology.100

This was the first step in a currently evolving process, which began due to the
convergence of two major groups, the G77 and China and the European Union
on the need of initiating a meaningful process of consideration of the issue.
Although their respective interests were not necessarily opposed, they were
not necessarily concurrent either. Whereas the G77 and China emphasized the
need to ensure the sharing of benefits arising from the exploitation of biologi-
cal resources—in particular genetic resources—favouring the application of
the common heritage of mankind principle, the EU favoured the negotiation
of a regime for the establishment of area-based management tools, in particu-
lar marine protected areas (MPAs).

99 Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal
Working Group to the President of the General Assembly (A /66/119), para. 1.a).
100 Idem note 68 supra, para. 1.b).

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The two groups then came to an agreement on how the issue will be dealt
with: as a package, as when UNCLOS was negotiated. Although the expres-
sion ‘package’ was not accepted by some as a part of a formal document, the
expression ‘together and as a whole’ intends to reflect that agreement. The ele-
ments of the package are also important, namely conservation—meaning a
regime for the lawful establishment of measures, including MPAs—; sustain-
able use—meaning exploitation of biological resources, including taking into
account intellectual property rights as regards microorganisms—; capacity-
building; and the transfer of marine technology, included in the package due to
the concern of developing countries over the high need of adequate technol-
ogy to undertake activities regarding biological communities of areas beyond
national jurisdiction and over the fact that Part XIV is the Part of UNCLOS
regarding which there is the biggest gap in implementation.
Although the position of the majority of delegations favoured the ini-
tiation of a process that would lead to the negotiation of an ‘implementing
agreement’ to UNCLOS, the reluctance of a few developed countries led to the
ad hoc expression ‘a multilateral agreement under the United Nations
Convention on the Law of the Sea’. Also their reluctance led to the inclusion of
the reference to ‘the implementation of existing instruments’.
The General Assembly endorsed those recommendations and decided to
initiate such process by providing the Ad Hoc Working Group with a new man-
date, as defined in its Recommendations.101
The second meeting of the Ad Hoc Working Group preceded the Rio United
Nations Conference on Sustainable Development (UNCSD known as ‘Rio plus
20’, Rio de Janeiro, June 2012) and decided that two workshops would take
place to address ‘marine genetic resources’—including meaning and scope,
extent and types of research, uses and applications, technological, environ-
mental, social and economic aspects, access—related issues, types of benefits
and benefit sharing, intellectual property rights issues and global and regional
regimes on genetic resources, experiences and best practices, impacts and
challenges to marine biodiversity beyond areas of national jurisdiction,
and exchange of information on research programmes regarding marine bio-
diversity in areas beyond national jurisdiction; and ‘conservation and man-
agement tools, including area-based management and environmental impact
assessments’, this included types of area-based management tools, key eco-
system functions and processes in areas beyond national jurisdiction, assess-
ments of sectoral and cumulative impacts, technological, environmental,

101 General Assembly resolution 66/231 (the Recommendations of the Ad Hoc Working
Group are annexed to the resolution).

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social and economic aspects, existing regimes, experiences and best

practices, new and emerging uses of, and experimental activities in,
areas beyond national jurisdiction, impacts and challenges to marine biodi-
versity beyond areas of national jurisdiction and exchange of information
on research programmes regarding marine biodiversity in areas beyond
national jurisdiction.102 The workshops took place in May 2013.103
A notable political impetus was given by the commitment of Rio plus 20,
in June 2012, when Members of the United Nations “building on the work of
the Ad Hoc Open-ended Informal Working Group and before the end of the
sixty ninth session of the General Assembly”104 committed to addressing, on
an urgent basis, “the issue of the conservation and sustainable use of marine
biological diversity of areas beyond national jurisdiction, including by tak-
ing a decision on the development of an international instrument under the
Convention on the Law of the Sea”.105
Following that decision, the General Assembly agreed, through resolution
68/70, that the Ad Hoc Working Group will hold several meetings to prepare
for the decision to be taken at the 69th session of the General Assembly and
requested it “to make recommendations to the Assembly on the scope, param-
eters and feasibility of an international instrument under the Convention”.106
The process for preparing that decision might not lead to discussions on
which principles of UNCLOS are applicable or on the specific legal regime, but
if the General Assembly decides to convene the negotiation of an implement-
ing agreement to UNCLOS (or ‘an international instrument under UNCLOS’),
discussion on the legal principles will necessarily have to take place, as they
will give shape to a future regime to implement those principles.
The world today is one in which the NIEO is hardly mentioned but there is
still a widely recognized need to bridge the gap between developed and devel-
oping countries. The pragmatic approach of the General Assembly, which
decided to deal as a single question with two different maritime areas sub-
ject to different legal regimes, might lead to considering pragmatic approaches

102 Letter dated 8 June 2012 from the Co-Chairs of the Ad Hoc Open-ended Informal Working
Group to the President of the General Assembly (A/67/95).
103 See ‘Inter sessional workshops aimed at improving understanding of the issues and clari-
fying key questions as an input to the work of the Working Group in accordance with the
terms of reference annexed to General Assembly resolution 67/78, Summary of proceed-
ings prepared by the Co-Chairs of the Working Group’, document A/AC.276/6.
104 The sixty-ninth session of the General Assembly will formally finalize in September 2015.
105 A/RES/66/288.
106 A/RES/68/70 para. 198.

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and solutions. However, principles will always underlie a future negotiation, as

its purpose would be the implementation thereof. The arguments in favour of
the application of the common heritage of mankind to biological organisms
of the Area sound very convincing, and its ultimate result would be the shar-
ing of benefits with mankind as a whole. Currently, the conviction shared by
the majority of States is that the sharing of benefits is an essential part of the
‘package’ of a future negotiation. So, even when some are reluctant to referring
to the principle, what would the sharing of benefits arising from the exploita-
tion of the biological organisms—including genetic resources—of the Area
amount to other than the common heritage of mankind?

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 PART 6
Islands and Archipelagic States

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 Chapter 18

Archipelagic States and the New Law of the Sea

Vincent P. Cogliati-Bantz

Archipelagic States were among the first to ratify UNCLOS.1 The new Law of
the Sea which emerged from the Third Conference is based upon functional
allocation of rights and duties of coastal and third States over certain mari-
time areas. The right of transit passage (TP) was negotiated to respond to the
extension of the breadth of the territorial sea in straits used for international
navigation.2 It seeks to resolve the inherent tension between the interests
of third States in unimpeded navigation and overflight and the status of the
waters navigated through or above, for the territorial sea is placed under
the sovereignty of the coastal State.3 The analogous right of archipelagic sea
lanes passage (ASLP) emerged concurrently at UNCLOS III. It is not predicated
upon the extension of the territorial sea but on the novel maritime zone of
archipelagic (insular) waters; its justification also rests on the preservation
of a right of passage that approximates the freedom of navigation previously
enjoyed by third States, while respecting the sovereignty of archipelagic States
(AS) over archipelagic waters (AW). This balance of interests infused the
package-deal approach throughout the Conference.4

Genealogy

AW are a legal creation closely linked to the emergence of the so-called

‘archipelagic doctrine’ forged by archipelagic practice itself: an archipelago

1 Notably Fiji in 1982, Jamaica and the Bahamas in 1983, the Philippines in 1984 and Indonesia
in 1986. 22 States currently claim archipelagic status. See http://www.un.org/Depts/los/
LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_claims.pdf.
2 See Hugo Caminos & Vincent P. Cogliati-Bantz, The Legal Regime of Straits: Contemporary
Challenges and Solutions (2014).
3 Arts. 2 and 34. The US delegate made it clear from the outset that the freedoms involved
in the new right of TP were navigation and overflight only, not all the high seas freedoms;
furthermore, some restrictions would apply to the benefit of coastal States. E.g. UN Doc.A/
AC.138/SC.II/L.4 and Corr.1(1971); UN Doc.A/AC.138/SC.II/SR.36(1972).
4 Hugo Caminos & Michael R. Molitor, “Progressive Development of International Law and the
Package Deal”, 79 Am. J. Int’l L. (1985): 871–879.

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should be viewed as a unity deserving special treatment. Only UNCLOS III

transformed archipelagic claims into law. Colonial practice never developed
a clear concept of an archipelago to unitize a group of islands.5 The 1930
Hague Codification Conference, which examined the question of the territo-
rial sea, failed to address archipelagos due to lack of agreement on the breadth
of the territorial sea.6 Archipelagos, being under colonial rule, had no inter-
national voice of their own.7 The 1958 Geneva Conference also side-tracked
the issue: the Convention on the Territorial Sea only contains rules on a fringe
of islands along the coast (Art. 4). While, in his first report on the territorial
sea, Rapporteur François had suggested that “with regard to a group of islands
(archipelago) and islands situated along the coast, the ten-mile line shall be
adopted as the baseline for measuring the territorial sea outward in the direc-
tion of the high sea”,8 subsequent debates focused on the length of baselines.
Proposals on archipelagos were deleted from the ILC’s Draft.9 The Conference
did not act upon a Philippine suggestion to draw straight baselines around
islands forming a compact whole and to treat insular waters as internal waters.10
The 1960 Geneva Conference did not place archipelagos on the agenda either.
This lack of international attention co-existed with the work of learned
societies, some of which regarded a group of islands as a unit, others treat-
ing each island individually.11 “The contributions, if any, made by the private
scientific and scholarly organizations were ancillary to the main problem

5 Daniel P. O’Connell, “Mid-Ocean Archipelagos in International Law”, 45 Brit.Y.B. Int’l L.

(1971): 1, 2.
6 The Sub-Committee on the Territorial Sea decided not to draft a text on “a group of
islands (archipelago) and islands situated along the coast”, “owing to lack of technical
details”: L.o.N. Doc. C 351(b), M 145(b)(1930V).
7 Ram P. Anand, “Mid-Ocean Archipelagos in International Law: Theory and Practice”, 19
Indian J. Int’l L. (1979): 229.
8 UN Doc.A/CN.4/53 (1952), Art. 10. The ten-mile maximum length for straight baselines
(later limited to five) was suggested as a basis for discussion if the ILC wished to progres-
sively develop the law: UN Doc.A/CN.4/ 61, para. 69 (1953).
9 1 Yearbook of the ILC, 217–218(1955). Islands adjacent to the coast were covered by Art. 5
of the Draft which was to become Art. 4 of the Convention.
10 UN Doc.A/CONF.13/C.1/L.98, UNCLOS I, 3 Official Records, 239(1958). In a prepara-
tory document, Norwegian jurist Evensen considered that the right of innocent passage
through “archipelagic straits” was to be preserved: “Certain Legal Aspects Concerning the
Delimitation of Territorial Waters of Archipelagos”, UN Doc.A/CONF.13/18, UNCLOS I, 1
Official Records, 289(1957).
11 Examples in Hiran W. Jayewardene, The Regime of Islands in International Law 113 et seq.
(1990).

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archipelagic states and the new law of the sea 301

confronting them; namely, regulation of territorial waters”.12 More importantly,

it also co-existed with individual claims made by archipelagos, both indepen-
dent and dependent. At the forefront, the Philippines in 1955 declared that all
waters around and between its islands were internal and subject to its exclu-
sive sovereignty.13 Indonesia made a similar declaration in 1957, albeit granting
a right of innocent passage to foreign ships.14 Invoking the high seas status of
these waters under customary law (with the exception of a belt of territorial
sea around each island), the maritime powers, joined by Japan and Australia,
lodged diplomatic protests.15
At UNCLOS III, the coastal State’s sovereignty over insular waters had
become acceptable to the international community so long as liberal naviga-
tional and overflight rights were recognized and so long as AW applied to a
limited category of beneficiaries. Art. 49(1)and(2) of UNCLOS testifies to the
sympathy of third States towards island nations; by proclaiming the sovereignty
of the AS over AW and their resources, the Convention acknowledged the vari-
ous concerns express by AS, particularly the ‘economic’ argument and the fact
that AW are a major source of livelihood to locals and, with the emergence of
the EEZ in the 1970s, islands nations started emphasizing that a unified archi-
pelagic status was also necessary to the political unity of the archipelago itself.
Indonesia pointed to the threats to its security and integrity should pockets
of high seas continue to exist between islands.16 The regime of AW in Part IV
crystallized quickly during the second session and developed out of propos-
als at the UN Sea-bed Committee. On July 22, 1971 Fijian Ambassador Nandan
delivered a speech at the Committee proposing the acceptance of the archipe-
lagic principle and expressing the view that “the waters so enclosed are to be

12 Barry Dubner, The Law of Territorial Waters of Mid-ocean Archipelagos and Archipelagic
States 28(1976).
13 UN Doc.A/2934, 52–53(1955). Straight baselines enclosing the islands were designated
in 1961. Admittedly, no right of innocent passage was recognized in insular waters: see
Patricia E.J. Rodgers, 82 Mid-Ocean Archipelagos and International Law (1981). This was
confirmed by the Declaration made upon signature of UNCLOS.
14 2 Jap. Ann. Int’ l L. (1958): 218. See Government Regulation No. 8 on Innocent Passage of
Foreign Vessels Through Indonesian Waters (1962). Prior notification of the passage
of warships was required, unless passage was effected in specific sea lanes to be desig-
nated; there, submarines could also navigate submerged.
15 E.g. O’Connell, op. cit., 60–62. Innocent passage in insular waters enclosed by straight
baselines, by analogy with Art. 5(2) of the Convention on the Territorial Sea, was rejected
by Indonesia and the Philippines which are not parties to that Convention.
16 UNCLOS III, 2 Official Records, 260(1974).

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regarded as territorial waters subject to the right of innocent passage”.17 This

formed the basis of the Archipelagic Principles by Fiji, Indonesia, Mauritius
and the Philippines: the waters enclosed by straight baselines connecting
the outermost islands of the archipelago were to be under the sovereignty
of the AS and innocent passage of foreign ships was to “be allowed in
accordance with its national legislation, having regard to the existing rules of
international law. Such passage shall be through sea lanes as may be designated
for that purpose by the AS”.18 This was revised subsequently19 but the right of
innocent passage was a suspendable one and could still be restricted to sea
lanes. The UK, on the other hand, was of the view that the passage regime
applicable in straits, which was being developed at the same time, applied in
parts of AW that have been used as routes for international navigation; the
right of innocent passage applied otherwise in AW.20
This is in essence what Part IV achieves: it recognizes the ‘unity’ theory and
allows AS to claim sovereignty over wide areas considered high seas under
customary law but it also confers on third States a liberal right of passage in
‘archipelagic straits’. There was no ambiguity about this sine qua non condition.
At the Caracas session, the delegate of the UK said that his delegation “was
willing to develop a concept of the AS [but] a satisfactory regime of naviga-
tion through AW must be developed to cater to the needs of the international
community”.21

Phenomenology

Applicability of the New Regime

Part IV only applies to an AS, defined as “a State constituted wholly by one
or more archipelagos and may include other islands” (Art. 46(a)). It does not
apply to coastal or oceanic archipelagos belonging to a mainland State. Art. 7
may apply to a coastal archipelago if it constitutes a “fringe of islands along the
coast in its immediate vicinity”. Some continental States with off-lying archi-
pelagos had considered that no difference should exist with the legal status of
archipelagos that constitute a single State. Proposals were notably made by

17 O’Connell, n. 5, 49–50.
18 UN Doc.A/AC.138/SC.II/L.15(1973).
19 UN Doc.A/AC.138/SC.II/L.48(1973).
20 UN Doc.A/AC.138/SC.II/L.44(1973).
21 UNCLOS III, 2 Official Records, 261(1974). See also the USSR, id., 267.

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archipelagic states and the new law of the sea 303

Ecuador, Panama and Peru at the Sea-bed Committee22 and, at the Conference,
by Canada, Norway, Iceland and six others to the effect that the provisions on
AS should also apply to islands of continental States.23 Similar suggestions were
made at the Caracas session by France, India, Spain or Portugal for their mid-
ocean islands.24 The Main-Trends Working Paper reflects them.25 However,
they disappeared from the 1975 Informal Single Negotiating Text.26
Firstly, AS themselves based their claim on total insularity. Secondly, mari-
time powers would not have endorsed an archipelagic principle broadly
defined.27 Thirdly, there was an ideological opposition to applying the archipe-
lagic principle to archipelagos of continental States: the ‘presumption of colo-
nialism’ meant that the metropolitan State, not the local population, would
benefit from sovereignty over AW.28 Fourthly, the main reason against a broad
archipelagic regime lies in the general opposition of the international com-
munity to encroachment upon navigational freedoms. As Thailand put it, “if
the principle was to apply to all archipelagos and they were granted territorial

22 UN Doc.A/AC.138/SC.II/L.27(1973). As early as 1951, Ecuador enclosed the Galapagos by

straight baselines. Chile, Ecuador and Peru, in the 1952 Santiago Declaration, declared a
200-mile maritime zone extending “in every direction from any island or group of islands
forming part of the declarant country”. Jayewardene, n. 11, 120. The waters enclosed are
regarded by Ecuador as internal: UNCLOS III, 2 Official Records, 267(1974). This has been
protested by the US. Ecuador is not a Party to UNCLOS. The Galapagos Archipelago was
made a Particularly Sensitive Sea Area (PSSA) by IMO in 2005 (MEPC.135(53)), estab-
lishing also an area that certain transiting ships “should” avoid (A.976(24)). In 2006,
IMO adopted under SOLAS a mandatory ship reporting system for all ships in that PSSA
(MSC.229(82)).
23 UN Doc.A/CONF.62/L.4(1974). Interestingly, this was also sponsored by Indonesia.
24 “[S]everal continental states, including Denmark, Ecuador, Portugal, and Spain, have
established straight baselines around their islands in a manner simulating an archipelago.
The United States has protested these claims”. US Department of State, Limits in the Sea
Nr.112 48–49 (1992).
25 UN Doc. A.CONF.62/L.8/Rev.1, Provision 202, Formula B (1974).
26 Art. 131 mentioned that provisions on AS were “without prejudice to the status of oceanic
archipelagos forming an integral part of the territory of a continental State”. UN Doc.A/
CONF.62/WP.8/Part II. This was rejected subsequently in the Revised Single Negotiating
Text.
27 Above n. 20–21 and text.
28 Renaud Lattion, L’archipel en Droit international (Paris: Éditions Payot, 1984), 113–114. See
notably the views of Burma (which spoke rarely at the Conference), UNCLOS III, 2 Official
Records 266(1974); Algeria, id., 271. This argument is only partly convincing, for some
developing continental States with oceanic archipelagos relied on the archipelagic doc-
trine precisely on the ground that a unified regime would promote their development.

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waters and other jurisdictional zones, [one] wondered how much would be left
for the international area”.29 Lastly, an extension of claims was also frowned
upon when it was likely to aggravate political tensions. It is no secret that “the
claim of a 100-mile zone in the Arctic in which Canada proposed to regulate
navigation for environmental purposes was a special shock given Canada’s
geographic, political and economic position in the world”.30 Apart from posi-
tions of principle raised by the Northwest Passage which the US regards as a
strait used for international navigation to which TP applies, some delegates at
the Conference may have found it wise to advise Greece not to press its archi-
pelagic claim in the Aegean Sea.31 Indeed, Turkey spoke unequivocally:

Continental States which possessed islands should not be mistaken for

archipelagic States. To generalize any rule of law was contrary to the
interests of the international community . . . [The Turkish] delegation
had distributed a map which illustrates the consequences of applying the
regime of AS in the Aegean Sea . . . [This] would upset a historically estab-
lished balance for the benefit of only one of the States in the area.32

For all these reasons, an archipelago benefits from Part IV only if it falls within
the categories in Art. 305. It need not be sovereign (e.g. it may be a self-govern-

29 UNCLOS III, 1 Official Records 147(1974). Similar remarks were made by Bulgaria and
Japan.
30 Bernard H. Oxman, The United Nations and the Law of the Sea, in 2 United Nations Legal
Order 685–686 (Oscar Schachter & Christopher Joyner eds., 1995). See Arctic Waters
Pollution Prevention Act 1970. In 1986, Canada drew straight baselines around the Arctic
Archipelago and claimed internal waters status, albeit on the basis of historic waters sta-
tus. The baselines notably enclose the M’Clure Strait.
31 For Greece, the right to draw straight baselines was to be recognized regardless of whether
an archipelago was part of a State also possessing a continental territory or formed a State
in itself. UNCLOS III, 1 Official Records, 129(1974). Greece further believed that innocent
passage through straits used for international navigation struck the proper balance. Ibid.
For the similar position of Canada, ibid., 202. On the Canadian claim and the situation
today, see Caminos & Cogliati-Bantz, op. cit. The USSR showed some support to Canada,
hoping to secure recognition of its own claim in the Northeast Passage.
32 UNCLOS III, 2 Official Records 272(1974). The dispute between the two countries
later concerned the applicability of the right of TP in areas with numerous spread-out
islands: see UN Doc.A/CONF.62/WS/26(1982, Greece) and UN Doc.A/CONF.62/WS/34
(1982, Turkey).

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archipelagic states and the new law of the sea 305

ing entity) but the parent State must have delegated the relevant competences
in matters governed by UNCLOS.33

Archipelagic Waters and Allocation of Competences

Archipelagic Baselines
The rights and duties in Part IV are exercisable in AW. Under Art. 47, “an AS
may draw straight archipelagic baselines joining the outermost points of the
outermost islands and drying reefs of the archipelago”. The existence of an AS
is a precondition. It is defined as a “State constituted wholly by one or more
archipelagos and may include other islands”. An archipelago for the purpose
of UNCLOS is a “group of islands, including parts of islands, interconnect-
ing waters and other natural features which are so closely interrelated that
such islands, waters and other natural features form an intrinsic geographi-
cal, economic and political entity, or which historically have been regarded
as such”.34 Admittedly, a minimum of two islands is required by ‘group’35 and
the Convention creates a liberal test which stems from proposals by AS them-
selves at the Sea-Bed Committee.36 States with islands that do not constitute
an intrinsic geographical, economic and political entity may still qualify under
the ‘historic’ clause as an alternative requirement.37
AW do not exist automatically whenever an AS is identified: pursuant to
Art. 49, the sovereignty of the AS extends to AW enclosed by archipelagic base-
lines drawn in accordance with Art. 47. When no archipelagic baselines are
designated, either because the State concerned chooses not to designate them,
or may not designate them under Art. 47, each island will be treated individu-
ally following Art. 121.38 Indeed, when the baselines are not drawn, logically
the AS does not have AW but only a potential claim to AW. Thus the Bahamas’s

33 See Art. 1(2)(2). On that basis, the Cook Islands qualifies. For other territories, see
Resolution III of the Final Act to the Conference.
34 “Part of islands” applies to Papua New Guinea. “Other natural features” such as drying
reefs and atolls conveniently avoids deciding whether such features constitute islands
under Art. 121.
35 The UK required a minimum of three: above n. 20.
36 Above n. 18–19.
37 “It provides an alternative basis for evaluating the Philippines’ claim and perhaps that of
Tonga”. Jayewardene, n. 11, 139.
38 See n. 1 for current claims. The claim is made in domestic legislation either impliedly by
the provision of AW or expressly by declaration (e.g. Trinidad &Tobago[1986], Dominican
Republic[2007], Jamaica[1996]). Under Art. 47(8)–(9), the baselines must be shown on

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Act No. 37 of 1993 says that, when archipelagic baselines are not established,
the baselines from which the breadth of the territorial sea is measured is the
low-water line along the coast of each island.39 Only by Order of December 8,
2008 were archipelagic baselines designated (and coordinates deposited with
the UN).40 By contrast, the Comoros deposited the relevant coordinates in
2010 but claimed sovereignty over AW back in 1982.41
Archipelagic baselines are subject to a length requirement (a maximum
of 100 n.miles with up to 3% of the total number of baselines with a maxi-
mum of 125 n.miles)42 and a spatial requirement (a land/water ratio between
1 to 1 and 1 to 9).43 The land/water ratio does not allow Japan, the UK or
Cuba to draw archipelagic baselines. These requirements also limit the way
in which the various islands may be enclosed: it may be necessary to enclose
certain archipelagos only, not the entire AS, provided the general configura-
tion of an archipelago is respected and that any enclosed archipelago contains
the ‘main islands’.44 An additional requirement is the ‘non-enclavement’ prin-
ciple in Art. 47(5).

charts; lists of geographical coordinates may be substituted. A copy of each such chart or
list must be deposited with the UN Secretary-General.
39 http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/BHS_1993_37.pdf
(Sec.4(3)).
40 United Nations, Law of the Sea Bulletin N.69 74(2009). Grenada adopted a similar
solution.
41 See http://www.un.org/depts/los/LEGISLATIONANDTREATIES/STATEFILES/COM.
htm. Jamaica, for its part, declared itself an AS in 1996 and deposited the coordinates of
archipelagic baselines that same year.
42 Art. 47(2). Hence, the greater the total number of baselines, the greater the number of
possible baselines longer than 100 n.miles.
43 Art. 47(1). At the Sea-bed Committee, the UK had suggested a length limitation of
48 miles for baselines and a ratio of 5 to 1. The archipelagic nations’ proposals contained
no limits. The current length limits date back to the Informal Composite Negotiating Text
of 1977. The current ratio dates back to the ISNT.
44 In Art. 47(1)–(3), the reference to “archipelago” is to a given group enclosed by straight
baselines within the AS. “Main islands” in Art. 47(1) is not defined and may refer to the
largest islands in the geographic, demographic and economic sense or to those islands
that have political, historical or cultural value. E.g. Satya Nandan (ed.), 2 United Nations
Convention on the Law of the Sea 1982: A Commentary 430 (1993). Art. 47(3) contains a
level of indeterminacy; the Maldives made a claim in 1972 defining its national territory
by a large rectangle. This was protested. See J. Ashley Roach & Robert W. Smith, Excessive
Maritime Claims 74–75 (1994). By Act of 1996, the Maldives changed this and defined
archipelagic baselines. For the USA, three segments exceed the maximum length allowed.
See US Department of State, Limits in the Sea Nr.126 3 (2005).

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archipelagic states and the new law of the sea 307

Further concessions were made at UNCLOS III: Art. 47(7), in the determina-
tion of the land/water ratio, accommodates cases like the Bahamas, where “the
ratio of very shallow water to dry land areas and the steepness of the slopes
appeared to be unparalleled”.45 Also, Art. 47(1) allows base points on drying
reefs and Art. 47(4) permits them on low tide elevations provided light houses
or similar structures have been built on them or on the condition that the LTE
is situated at least partly within the breadth of the territorial sea from the near-
est island.46

Archipelagic Waters
AW are a sui generis maritime zone and show analogies with both internal
waters and the territorial sea. As in the territorial sea, and as in internal waters
enclosed by straight baselines that previously were not considered internal
waters, innocent passage exists in AW (Arts. 8(2), 52 and 17). Also, the right of
ASLP (Art. 53) is functionally equivalent to the right of TP as defined in Part III
which is available in the territorial sea and in areas of internal waters within
a strait enclosed by a straight baseline which had not previously been consid-
ered internal waters (Art. 35(a)). Straight archipelagic baselines constitute the
inner limit of the territorial sea from which the breadth of the other maritime
zones is measured.47

Non-Navigational Rights in Archipelagic Waters

Rights of passage in AW are not the only concession island nations had to make.
Art. 51(1) says that existing agreements with other States shall be respected.
That provision first appeared in the ISNT and arguably ensures that the AS
does not invoke the principle rebus sic stantibus (if at all applicable) with
respect to prior treaty rights in relation to waters that are now archipelagic.
Furthermore, under Art. 51(2)

45 UNCLOS III, 2 Official Records 265(1974).

46 In the case of Jamaica the US noted: “Jamaica would not qualify as an AS if they did not
include the small southern rocks and cays in its archipelagic straight baseline system; in
other words, the large main island of Jamaica by itself would not meet the archipelagic
criteria”. US Department of State, Limits in the Sea Nr.125 4 (2004). Also for the US, the
Dominican Republic’s archipelagic baseline system includes segments drawn from low-
tide elevations that do not satisfy the conditions in Art. 47(4) and the water-to-land area
ratio has been met only by utilizing such low-tide elevations. Ibid., Nr.130 3 (2014).
47 Art. 48. Within AW, an AS may draw closing lines for the delimitation of internal
waters: Art. 50.The Bahamas, the Comoros, Fiji, Grenada, Indonesia, Kiribati, the
Philippines, Sao Tome e Principe, the Solomon Islands and Papua New Guinea do not
claim a contiguous zone; the latter does not claim an EEZ either.

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an AS shall respect existing submarine cables laid down by other States

and passing through its waters without making a landfall. An AS shall
permit the maintenance and replacement of such cables upon receiving
due notice of their location and the intention to repair or replace them.

This originated in a Japanese proposal for inclusion in the ISNT.48 It applies to

existing cables only; it does not cover pipelines.
Traditional fishing rights and other legitimate activities of immediately
adjacent neighbouring States in areas falling within AW are protected by
Art. 51(1) which dates back to discussions at the Sea-Bed Committee, reflect-
ing notably the concerns of Singapore, Malaysia and Thailand. Indonesia
at the Conference sought to reassure its immediate neighbours but also
made it clear that it was not ready to make such assurances for the entirety
of AW, and that only certain rights and certain neighbors would be protect-
ed.49 Art. 51(1) applies to ‘immediately adjacent neighbouring States’, signi-
fying that they must share a border (admittedly a sea border) with the AS.50
‘Traditional fishing rights’ is not defined and despite the claim that it refers
to traditional fishermen and their methods,51 the French and Spanish versions
make it clear that it is the rights that are traditional, i.e. acquired by long-stand-
ing usage. ‘Other legitimate activities’ is not defined either but their scope and
exercise and the areas of waters concerned must be regulated by bilateral
agreements under Art. 51(1).
Art. 47(6) addresses the area between the Malay Peninsula and Northern
Borneo. It was suggested by Malaysia which was concerned by the impact of
Indonesian archipelagic baselines upon its interests in Indonesian waters.52
That provision mentions ‘existing rights’, not just ‘traditional fishing rights’
and ‘all other legitimate interests’ as opposed to ‘other legitimate activities’.
Malaysia and Indonesia entered into an agreement on those questions: the

48 4 Platzöder, 339(1976).
49 UNCLOS III, 2 Official Records 298(1974).
50 Japan at the Conference had claimed traditional rights in Indonesian AW.
51 Hasjim Djalal, “Indonesia and the New Extensions of Coastal State Sovereignty and
Jurisdiction at Sea”, in Regionalization of the Law of the Sea 284, ed. Douglas M. Johnston
(Cambridge, Mass: Ballinger Publishing, 1978).
52 “The archipelagic boundary as claimed by Indonesia would enclose [the Anambas and
Natuna Islands] within the Indonesian archipelago. The effect of that claim would result
in the sudden severance of the free access and all forms of communications which
Malaysia had always enjoyed through the high seas between the two parts of its territory”.
UNCLOS III, 2 Official Records, 292(1974).

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archipelagic states and the new law of the sea 309

Treaty of Jakarta (February 25, 1982) goes further than Part IV and extends to
the Indonesian territorial sea and its airspace.53 Under Art. 2(2), the traditional
rights of Malaysia consist notably of a right of access of ships and aircraft, fish-
ing rights of Malaysian traditional fishermen, maintenance of cables and pipe-
lines and the laying of new cables and pipelines. The right of access of ships,
analogous to the right of ASLP, exists in two Corridors defined by axis lines in a
map annexed to the Treaty.54 Malaysian State and civil aircraft enjoy the right
of continuous, expeditious and unobstructed overflight through the airspace
above the territorial sea, AW and territory of Indonesia between East and West
Malaysia.

Navigational Rights in Archipelagic Waters

Innocent Passage
Ships of all States enjoy the right of innocent passage through AW. Art. 52
incorporates Part II, section 3 of UNCLOS, into Part IV. The AS under Art. 22
may require certain ships to use sealanes for the safety of navigation but this is
conceptually different from the initial suggestions that innocent passage itself
may be restricted to sealanes. The only textual difference between Parts II and
IV is the absence of ‘weapons exercises’ in Art. 52(2) when compared with
Art. 25(3) but this may be considered included within the protection of secu-
rity. Indonesia makes such express provision in its Act of 1996 on Indonesian
Waters.
Out of twenty-two declared AS, Indonesia requires prior notification of the
passage of foreign warships, Antigua and Barbuda, the Maldives, St Vincent
and the Grenadines, the Seychelles and Vanuatu require prior authorization of
such passage (in the latter two cases, the authorization also applies to nuclear-
powered ships and ships carrying nuclear [or other dangerous substance in
Vanuatu] substances); Mauritius requires permission for ships carrying radio-
active materials; in theory, the Philippines does not recognize any right of

53 Text in United Nations, Practice of Archipelagic States 144 (1992). Entered into force
May 25, 1984.
54 See below 4.2. Malaysian Government ships may conduct naval manoeuvres, including
tactical exercises, provided no firing of weapons is permitted. The right of innocent pas-
sage in the area between East and West Malaysia continues to apply in accordance with
international law but Malaysian traditional fishing boats enjoy a right of innocent pas-
sage which must not be hampered.

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innocent passage in insular waters.55 This is arguably based on the view that
customary law does not grant a right of innocent passage to foreign warships
and that UNCLOS may be interpreted accordingly. Whatever the content of the
customary rule, one may nevertheless note that subsection A of section 3 of
Part II is entitled ‘rules applicable to all ships’.56

Archipelagic Sea Lanes Passage

Like the analogous right of TP, ASLP it is a compromise between the regime
of innocent passage advocated by AS57 and the broader freedom of naviga-
tion and overflight defended by third States. The latter’s interests were clearly
military manoeuvrability but not exclusively so: third States with commercial
interests also pointed out that some archipelagos straddle vital communica-
tions routes.58 The functional analogy between archipelagic sea lanes and
straits, despite geographical differences, was expressly made by the UK in
its Draft.59
ASLP is defined in Art. 53(3) as the “rights of navigation and overflight in
the normal mode solely for the purpose of continuous, expeditious and unob-
structed transit between one part of the high seas or an [EEZ] and another part
of the high seas or an [EEZ]”, reflecting Art. 38(2). The right of TP in section 2 of
Part III applies to straits ‘used for international navigation’. While under Part IV
the AS may designate any sea lane where ASLP applies, such generosity is
not to be presumed: at the very least, ASLP must apply to ‘routes normally
used for international navigation’ (Art. 53(12)). Despite functional analogy
between ASLP and TP, some differences may be noted: the former refers to

55 Above n. 13. In a declaration made upon signature of UNCLOS, Cabo Verde claimed the
“right to adopt laws and regulations relating to the innocent passage of foreign warships
through [its] territorial sea or AW”. Sao Tome e Principe made a similar declaration.
56 Of significance is also the USA/USSR Joint Statement of 1989 to that effect. See 28 Int’l
Legal Materials 1444 (1989). On customary law, see e.g. Bing Bing Jia, The Regime of Straits
in International Law 84–89 (1998) and the literature cited there.
57 Innocent passage benefits ships, not aircraft and submarines must navigate on the sur-
face. ‘Innocence’ is qualified by a list of prohibited activities in Art. 19; non-innocent pas-
sage may be prevented by the coastal State. The latter has a broad regulatory competence
under Arts. 21–22 and also enforcement powers which may lead to hampering of passage
in accordance with UNCLOS and the exercise criminal or civil jurisdiction aboard mer-
chant ships.
58 E.g. the declaration of Japan, UNCLOS III, 2 Official Records, 261(1974).
59 Above n. 20, Art. 7.

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archipelagic states and the new law of the sea 311

rights, while the latter mentions freedom.60 Furthermore, ASLP in Art. 53(3)
must be ‘unobstructed’, a condition unfound in Art. 38. It is not entirely clear
whether the latter condition relates to an obligation of the beneficiaries of
ASLP or of the coastal State, and how it differs either from the requirements
of ‘continuous and expeditious’ passage or from the coastal State’s duty not to
hamper passage.61 ‘Unobstructed’ is not found in Art. 53(1) and, interestingly,
was introduced by Indonesia.62 Also, TP under Art. 38(2) applies to passage for
the purpose of entering, leaving or returning from a State bordering the strait;
this does not apply to ASLP as there cannot be another State along the route.
Art. 54 of UNCLOS incorporates Arts. 39, 40, 42 and 44 into Part IV, with
the result that the respective rights and duties of third States and the AS
with respect to ASLP are the same as under the regime of TP. This means that
the right of ASLP is enjoyable by all ships and aircraft (including warships and
military aircraft) and that submarines may pass submerged. The regulatory
powers of the AS in relation to ASLP are restricted to four matters (Art. 42)
and, in particular, the competence in relation to safety of navigation and con-
trol of pollution involves the application of international, not unilateral, stan-
dards. Ships must comply with generally accepted international rules relating
to safety of navigation or control of pollution (Art. 39(2)). Civil aircraft in tran-
sit must observe the Rules of the Air which are adopted by the ICAO.63 All
aircraft must monitor specified radio frequencies (Art. 39(3)(b)). Contrary to
Part II, Part III contains no provision on the application of the coastal State’s
laws or the exercise of its criminal or civil jurisdiction. The State must not ham-
per ASLP (Art. 44). Hence, a breach of applicable rules must be raised with
the flag State and does not call for direct enforcement jurisdiction of the AS
while the ship or aircraft is in ASLP. The only exceptions envisaged by UNCLOS

60 The US attempted to substitute “freedom” for “right” but was unsuccessful: J. Peter
A. Bernhardt, “The Right of Archipelagic Sea Lanes Passage: A Primer”, 35 Va. J. Int’l L.
(1995): 719, 741. For Oxman, since the delimitation of the area where ASLP applies is dic-
tated by practical considerations subject to change, it would be inappropriate to use the
term “freedom”: Bernard H. Oxman, “The Regime of Warships under the United Nations
Convention on the Law of the Sea”, 24 Va. J. Int’l L. (1984): 809, 860.
61 Art. 44, incorporated by Art. 54. Art. 38(1) says that TP must not be impeded.
62 Amendments to the RSNT (July 6, 1977), 4 Platzöder 477.
63 State aircraft (which are not subject to the ICAO regime) “will normally comply” with the
Rules: Art. 39(3)(a).

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are Art. 23364 and Art. 234.65 Furthermore, enforcement pursuant to the gen-
eral right of self-defence applies.66

Archipelagic Sea Lanes

Under Art. 53(1), ‘an AS may designate sea lanes and air routes thereabove’ for
the exercise of ASLP. ASLP is exercisable in the adjacent territorial sea as well
(Art. 53(4)). Under Art. 53(4), archipelagic sea lanes (ASL) and air routes must
include ‘all normal passage routes used as routes for international navigation
or overflight’. However, it is clear from Art. 53(12) that the right of ASLP exists
regardless of whether sea lanes are designated. Unlike the right of TP, ASLP
exists only in routes ‘normally’ used for international navigation, arguably in
light of the vast expenses of waters involved.67 What a normal route is, is not
left to the unilateral determination of the AS.68 Proposals for ASL must be
submitted to IMO which is the competent international body (Art. 53(9)).69
Conversely, IMO may only adopt ASL with the agreement of the AS, which
then enacts them in domestic law and designates them on charts (Art. 53(10)).

64 For violations, by non-immune foreign ships, of the laws of the AS adopted under Art.
42(1)(a)–(b) causing or threatening major damage to the marine environment of the
areas where ASLP applies. Enforcement measures and safeguards apply under Part XII.
Art. 233 only mentions straits but Art. 42 applies to AS and, further, it is not a reasonable
interpretation of UNCLOS that AW are not covered by Part XII where they are nowhere
mentioned expressly.
65 This concerns the adoption and enforcement, by the coastal State, of laws for the preven-
tion of pollution from ships in ice-covered areas within the limits of the EEZ. Art. 234
was negotiated by the US, USSR and Canada with the Arctic in mind but it is theoretically
applicable to AW, which are within the limits of the EEZ. Such laws however must have
“due regard to navigation”.
66 See the duties of ships and aircraft in Art. 39(1)(b). These issues are examined in detail in
Caminos & Cogliati-Bantz, n. 2, 7.6.
67 No importance should be attached to the drafting inconsistencies in Art. 53(12) which
does not mention overflight. Should an air route be normally used for international over-
flight but the sea lane underneath is not normally used for international navigation, the
AS must designate the sea lane anyway, since under Art. 53(4) sea lanes and air routes
must include all normal passage routes used as routes for international navigation or
overflight.
68 In 1977, the Philippines suggested replacing “normally” by “customarily”. See 4 Platzöder
474. That was not adopted.
69 ASL are, in essence, routeing measures within the jurisdiction of IMO under SOLAS
(Chapter V).

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archipelagic states and the new law of the sea 313

The procedure is the same for substituting ASL ‘when circumstances require’70
or prescribing and substituting traffic separation schemes in ASL (Art. 53(6)).
Under Art. 53(5), ASL are defined by a series of continuous axis lines from
the entry to the exit points of passage routes. ASL may be no wider than 50
nautical miles, as ships and aircraft must not deviate more than 25 nautical
miles to either side of the axis. A further condition is that ships and aircraft
must not navigate closer to the coasts than 10% of the distance between the
nearest points on islands bordering the sea lane.71 No sea lane may be des-
ignated without the corresponding air route; once IMO adopts ASL, the air
routes above exist automatically. While under Art. 53 ICAO does not approve
air routes, its Secretariat noted that for practical reasons AS would present their
proposals for inclusion into the appropriate Regional Navigation Plan for even-
tual approval by the ICAO Council.72 The ‘General Provisions for the Adoption,
Designation and Substitution of ASL’ (GP) indicate in the Introduction
that international air traffic services routes above AW to be used by civil aircraft
in international air navigation are subject to the approval process of ICAO.73
The GP were prompted by the Indonesian proposal for the designation of
certain ASL.74 In 1998, the MSC adopted the GP as amendment to the General
Provisions on Ships’ Routeing (Res.A.572(14), as amended).75 The GP specify
the respective roles of IMO, the AS and third States. In particular, the GP say
that a proposal may be partial if it does not yet include all normal passage
routes. In the meantime, ASLP applies in all normal passage routes used for
international navigation or overflight.76 All governments must be informed of
the proposal and given an opportunity to comment, and may request the addi-
tion of other ASL in the proposal.77 The ASL shall not come into effect until at
least six months after their publications.78

70 Art. 53(7).
71 Art. 53(5). The permitted deviation is arguably a compromise between the Indonesian
position which favoured a 20 n.mile maximum width and the USA which supported an
80 n.mile width. See 4 Platzöder 341–342.
72 ICAO Doc.LC/26-WP/5-1(1987).
73 Sec. 3.3.
74 IMO Doc.MSC 67/7/2(1996).
75 IMO Doc.MSC.71(69), Annex 2 (1998). The MSC performs this function on behalf of IMO.
76 Secs. 3.12, 6.7.
77 Secs. 3.3, 3.4.
78 Sec. 3.13 (and 2004 amendment in MSC.165(78)).

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The Case of Indonesia

The Indonesian ASL were adopted by the MSC at the same time as the GP.79 The
proposal had been prepared in consultation with Indonesia’s neighbours and
certain maritime States. It took account of several key factors, notably the pres-
ence of natural resources in the AW and the needs of international transpor-
tation. It contains three ASL and their spurs, with the notable omission of an
East/West ASL and was therefore adopted by IMO as a partial designation.80
By Act of August 8, 1996 Indonesia established itself as an AS under
UNCLOS.81 The Act refers to the right of ASLP under UNCLOS but leaves
it to Government Regulation to flesh out the details.82 By Regulation of
June 28, 2002 the ASL in Indonesia were implemented with effect on December
28, 2002. It is not in full conformity with UNCLOS notably because it limits
ASLP to designated sea lanes only.83 There is no reference to Art. 53(12) of
UNCLOS in the Regulation and its Elucidation appears to indicate that ASLP is
exercisable only in the ASL that are designated.84
No other AS has submitted proposals for ASL. In particular, the Philippines
adopted new archipelagic straight baselines under Art. 47 which appear con-
sistent with UNCLOS.85 But it has not yet enacted legislation on ASLP. A Bill
was introduced in March 2011 on the establishment of ASL and on the rights
and duties of States therein, together with associated protective measures. The
Bill was approved by the House in 2012 but is still pending before the Senate.86
In this Bill, only three ASL are planned while five main routes are used for
international navigation.87 Additionally, the Bill makes no mention of IMO in

79 IMO Doc.MSC.72(69), Annex 2 (1998); text with maps at http://www.navcen.uscg.gov/

pdf/marcomms/imo/msc_resolutions/MSC69-22a1-9.pdf.
80 At IMO, most States commented on the lack of ASL through the Java Sea; the US and
Australia were particularly concerned. The latter had also suggested another North/South
ASL from the Arafura Sea to the Pacific.
81 http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/IDN_1996_Act.
pdf.
82 Arts. 18–19.
83 Art. 15. These are the three ASL adopted by IMO.
84 Text at http://www.imo.org/blast/blastDataHelper.asp?data_id=7620&filename=200-
add.1.pdf. On the unfortunate consequences of the lack of East/West ASL and the ‘Bawean
incident’, see Caminos & Cogliati-bantz, op. cit.
85 Act No.9522 of March 10, 2009: United Nations, Law of the Sea Bulletin N.70 32(2009).
This was unsuccessfully challenged before the Philippines Supreme Court: Magallona
and Others v Ermita and Others, G.R No. 187167, decision of July 16, 2011.
86 http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-2738.
87 Main routes identified in www.rsis.edu.sg/publications/workingpapers/wp182.pdf, 7. The
Bill (with maps) is available at http://www.senate.gov.ph/lisdata/109359325!.pdf.

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archipelagic states and the new law of the sea 315

the adoption of ASL and, on its face, only envisages ASLP and innocent pas-
sage in designated ASL.88 Some at the Government do not favor the adoption
of ASL but, rather, the designation of the entire country as a PSSA with associ-
ated protective measures that would ‘guide vessel transit in the exercise of the
right of ASLP’.89

Compliance and Conclusions

State practice reveals less than perfect conformity with the UNCLOS. A 2009
study distinguished between several categories of AS.90 States which claimed
AS and defined archipelagic baselines and ASL under Art. 47 (Indonesia); States
which defined archipelagic baselines under Article 47 but did not designate
ASL (e.g. Fiji, Jamaica), States which claimed AS status but designated archi-
pelagic baselines in a manner contrary to Art. 47 (e.g. Cabo Verde, Dominican
Republic, Maldives); and States which neither defined archipelagic baselines
nor designated ASL (e.g. Kiribati, St Vincent).91 While space constraints limit
an exhaustive analysis, it must be noted that navigational rights in AS as envis-
aged by some of these States is not compatible with Part IV (or their com-
patibility is subject to doubt), even if the baselines are otherwise compliant
with UNCLOS. For instance, the Bahamas requires that foreign ships exercis-
ing innocent passage through AW use ASL when designated;92 Cabo Verde’s
laws contain no provision on the right of ASLP and only refers to the right of
innocent passage in AW;93 in a similar vein, Mauritius only mentions the right
of innocent passage as a limit on exercise of its sovereignty in AW but also

88 Sec. 11&15.
89 Alberto A. Encomienda, “Archipleagic Sea Lanes Passage and the Philippines Situation”,
in Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention, ed. M.H.
Nordquist, T.T.B. Koh & J.N. Moore (Leiden: Martinus Nijhoff, 2009), 393, 406 No further
details are given. See also above n. 13 & 55.
90 Martin Tsamenyi, Clive Schofield & Ben Milligan, “Navigation through Archipelagos:
Current State Practice”, in Freedom of Seas, Passage Rights and the 1982 Law of the Sea
Convention, ed. M.H. Nordquist, T.T.B. Koh & J.N. Moore (Leiden: Martinus Nijhoff,
2009), 413.
91 States such as the Bahamas, Comoros and the Seychelles, which were listed by the authors
as not having established archipelagic baselines, have done so since then: in 2008, 2010
and 2008 respectively. The US considers that the baseline system of the Bahamas is
consistent with UNCLOS, while it is not the case for the Seychelles. US Department of
State, Limits in the Sea Nr.128 3 (2014) and Nr.132 4 (2014).
92 Act No. 37(1994), Sec. 13.
93 Law No. 60/IV(1992), Art. 6.

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envisages the designation of sea lanes and air routes to be used by foreign
ships and aircraft through or over AS, internal waters and territorial sea;94
Trinidad and Tobago does not envisage ASLP without a Regulation for its des-
ignation and does not mention innocent passage in the territorial sea, only
in AW;95 the Dominican Republic refers to innocent passage through its AW
and airspace, considers that its internal waters are AW and adds a condition
to innocence of passage;96 St Vincent does not expressly address the right of
ASLP when ASL are not designated;97 Vanuatu says nothing about ASLP in its
AW.98 Indonesia and the Philippines were mentioned previously. Furthermore,
despite tactical claims such as that of the US that ASLP is ‘well established’
in general international law99 and that Part IV “reflect[s] customary inter-
national law and codify the only rules by which a nation can now rightfully
assert an archipelagic claim”,100 the practice of States whose interests are
specially affected reflects too much variation for a rule of customary law
to have stabilized. Even if one were to claim that the concepts of AS and
AW have become customary law, it is admittedly not the case for their concrete
implementation.101
UNCLOS III adopted Part IV to the advantage of AS but the sovereignty over
AW, which is at the option of AS, also means that certain rights of third States
must be effectively guaranteed. Most of the current AS are classified by the UN
as small island developing States102 and there is no doubt that the designation
of archipelagic baselines and sea lanes necessitates resources, know-how and
personnel. But AS are not bereft of any assistance. The UN and some of its
members offer assistance in the form of traineeships, capacity-building, direct

94 Act No. 2(2005), Arts. 9, 10(1).

95 Act No. 24(1986), Secs. 11(1) and 32(s).
96 Act No. 66–7(2007), Arts. 5, 6, 12.
97 Act No. 15(1983), Sec. 12.
98 Act No. 6(2010).
99 UN Doc.A/CONF.62/WS/37 and Add.1–2 (1983), UNCLOS III,17 Official Records, 244.
100 US Digest, Ch. 7, paras. 2, 6, in 83 Am.J.Int’l L. 559(1989).
101 This conclusion is not, as such, influenced by the package-deal nature of the UNCLOS,
for nothing prevents State practice and opinio juris from transforming a rule that is
part of the package deal into a rule of custom. See notably Hugo Caminos, “The Legal
Regime of Straits in the 1982 United Nations Convention on the Law of the Sea”, Collected
Courses (The Hague, Brill, 1987), 204–205.
102 http://unstats.un.org/unsd/methods/m49/m49regin.htm. Indonesia and the Philippines
are not on the list on account of their size but Asia excluding Japan is classified as
developing.

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archipelagic states and the new law of the sea 317

aid or technical and legal advice.103 The reason for the discrepancy between
domestic laws and UNCLOS is not always fully clear; local politics surely play
an important, if not paramount, part.104 Although some laws repeat parts of
UNCLOS almost verbatim,105 it is also regrettable that not all the very recent
legislation is in accordance with UNCLOS. Whether, and to what extent, con-
sultation was undertaken with the UN and interested States will require further
studies; one may note that the ‘19 Rules’, a non-binding agreement between
Indonesia, the US and Australia on the exercise of ASLP in preparation of
the submission to IMO, incorporated Art. 53(12) of UNCLOS.106 This disap-
peared from the Indonesia legislation. Whether non-conformity with UNCLOS
stems from lack of resources, adherence to national doctrines of sovereignty or
unfortunate oversight, AS should be convinced that they, through cooperation
and goodwill, have much to gain from full compliance with UNCLOS.

103 See notably http://www.un.org/Depts/los/tsc_new/TSCindex.htm, http://www.un.org/

Depts/los/nippon/index, http://www.un.org/Depts/los/TechAsst.htm, http://www.
un.org/Depts/los/general_assembly/study/study2008.htm.
104 The US and its non-participation in UNCLOS is no exception. See Vincent P. Bantz, “La
question de l’adhésion des Etats-Unis à la Convention des Nations Unies sur le droit de la
mer”, 8 Ann. D. Mer (2003): 9.
105 E.g. Fiji[1978], Tuvalu[2012].
106 Text in Dhiana Puspitawati, “The East-West Archipelagic Sea Lanes Passage Through the
Indonesian Archipelago”, 12 Mar. Studies (2005): 140.

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 Chapter 19

About the Islands

Antonio Remiro Brótons

Islands have always exerted a great fascination on me. I do not refer to any kind
of islands but to those that can be seen on a clear day from a distance of three
nautical miles at one glance, the islands that can be walked about in one or two
days without losing sight of the sea, the islands that fit my eyes like the shape
of an attractive woman till my visual zoom gives prominence to other senses.
Every morning, from the terrace of my small apartment lying on a modest
cliff of the Eastern coast of the Iberian Peninsula, I aim my sight at one of
those islands. Tabarca, that is its name, looks like a stranded whale. It was once
inhabited when, after the second half of the 18th Century, King Charles III
decided to colonize it with Genoese families rescued from another Tabarka,
placed within a stone’s throw from the North African coast. They had been
enslaved by the Bey of Tunis. The best King of the Spanish Bourbons thought
that he could in this way, by means of fortifications and settlements on the
deserted island, stop the threats of the Berbers and their raiding parties along
the western Mediterranean coasts. Nowadays the island, apart from being a
touristic point of interest, is also the basis for one of the straight lines that
frame the peninsular perimeter according to the rules that delimit the marine
areas under Spanish sovereignty and jurisdiction. Unfortunately a moderate
legal knowledge is needed in order to make attractive the consideration that
the island, unlike the neighbouring peninsula coast, offers the alternative of a
swim in the territorial sea or in the inner waters.
There are many other tabarcas, in name or concept, in the world that have
been or are at present, the scene of fantastic stories and/or of intense conflicts
of interests. International Law, when dealing with the acquisition of dominion
titles either terrestrial or corresponding to the Law of the Sea, has emerged
from the embers of stories and passions, confrontations and disputes, which
jurists have dealt with like an entomologist does with a stuffed butterfly whose
fluttering before it is consumed by the heat of the sun is ignored.
However, the specialists on international law, who do not escape from life
locked in an aseptic capsule with their stunts and legal conventions, know per-
fectly well that in order to seduce their captive audiences, it is not necessary
to read Stevenson and his Treasure Island,1 or to visit the mysterious island of

1 R.L. Stevenson, “The Sea Cook” or “Treasury Island”, Young Folks, 1881–1882.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_020

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about the islands 319

Julio Verne,2 nor to evocate the filmed parabola of survivors from a planet jum-
bled up by the liquefaction of the polar caps, striving in the oceans in the hope
of ‘discovering’ the island that was saved from the cataclysm.3 On the contrary,
they are our histories, arising from the international relations and the conflicts
among states that offer a rich plot to novelists and scriptwriters.
If not, what can be said about piracy, about the Tortuga Islands, (Turtle
Islands) toponomy and concept? Apart from the legendary treasures hidden
in the islands, from Mocha to Coco, it must be remembered that, in opposi-
tion to the fiercely stereotyped tale of freebooters and buccaneers, there was a
mutually binding social order, without exorbitant bonus for their captains and
with the due protection for widows, orphans and crippled when children were
dying in the metropolitan coal mines. The Tortuga Islands, the most famous
of which was situated to the northeast of Haiti, discovered and named by
Cristopher Columbus due to the shape of one of its mountains in 1492, were
the territorial base of those who did not want to be a State and, even if they
had wanted to, would not have been acknowledged as such, excluded by the
establishment of the privilege that allowed sovereigns, as a right, to be as heart-
less as the pirates.4
Those sovereigns, heads of colonialism, would take those remote islands
and turn them into prisons for their criminal scum, as was the case with the
Diablo Island in the French Guyana, made famous by Papillion.5 But the most
aristocratic prison isle has undoubtedly been that of St. Helena, in the deep
Atlantic, where the greatest French Emperor, Napoleon Bonaparte, was
secluded and where he died, probably poisoned.6 His confinement was a
political decision derived from his condition of permanent threat to the old
European order that he had once harassed. Nowadays the great powers may
arbitrate an international judicial procedure for crimes against humanity;
I will not say aggression because this is an inconvenient crime for the corpora-
tion of the great statesmen and it never will go beyond the couché paper.7

2 J. Verne, “L’île misterieuse”, Magasin d’education et de recreation, 1874–1875; Hetzel, Paris,

1875.
3 Waterworld, Kevin Reynolds (dir.), Universal Pictures, 1995.
4 A. Remiro Brotons, Civilizados, bárbaros y salvajes en el nuevo orden internacional (Madrid:
McGraw-Hill, 1996), 172–174.
5 H. Charrière, Papillon, 1969; Papillon, Franklin J. Schaffner (dir.), AlliedArtist/Solar
Productions, 1973.
6 A curious film of silent pictures, consecrated to the life of Napoleon in St. Helena, was
produced in Germany, directed by Lupu Pick in 1929: Napoleon auf St. Helena.
7 A. Remiro Brotons, “El crimen de agresión en el estatuto de la CPI revisado: nasceturridiculus
mus”, Estudios de DI y D Europeo en homenaje al Prof. Manuel Pérez González, t. 1, ed. J. Cardona
et al. (Valencia: Tirant lo Blanch, 2012), 1115–1130.

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320 remiro brótons

St. Helena had been ‘discovered’ by the Portuguese at the beginning of the
16th Century. There were no natives and the first resident was a Portuguese
mutilated for treason in Goa. Its location was kept secret during many years
due to its importance in the Portuguese route to the Spice Islands, but in the
17th Century it was matter of dispute between Dutch and English, who bene-
fited from the slave labour. The English went on using it to seclude ‘enemies’ of
their colonial policy, especially those in the South African cone. The opening
of the Suez Channel diminished the importance of their navigation routes and
they had to face the reality of a continental land three thousand kilometres
away. St. Helena, together with the islands of Ascension and Tristan de Acuña
are part of the British Overseas Territory, one of the fourteen non autonomous
insular territories in the agenda of sixteen territories pending decolonization
in the ‘Committee of 24’.8
But there are far more tragic stories in the process of adaptation between
the ‘inhabited’ and the ‘known’ world of the European States. In the expedition
that set out in August 1519 the Castilian fleet commanded by the Portuguese
Ferdinand Magellan, who was at the time angry with his King, we can find at
least three of these stories. One makes reference to the isle in the strait bear-
ing Magellan’s name, where he abandoned the commander of one of his ships,
Gaspar de Quesada and the priest Pedro Sánchez de Reina, to die later on of
cold and famine. They were both implied in a mutiny that might have ended
with Magellan’s life. He himself died some months after that, on the isle of
Mactán, on 27 April 1521. He was killed by some natives who were angry at his
arrogant and boundless eagerness to arbitrate in political affairs of those insu-
lar kinglets. Four days later, on 1st May—this is our third story—Juan Serrano,
one of the two captains that had succeeded Magellan, was the victim, together
with others, in Cebu, of a trap set up by the natives with the complicity of
the slave that had been Magellan’s interpreter. Being unable to reach the boat
that might carry him out of the island, Serrano shouted at his comrades not
to attack the town, thus expecting a less cruel death. The ships were lost in
the horizon while Serrano was dragged by the mob.9 Nothing was ever heard
of him. Was he perhaps devoured by the natives like James Cook was by the
natives in Hawaii? This may have happened because, as a native from New

8 See AG/Doc.Of. 68/23, 9 July 2013). In particular, on St. Helena, working doc.A/AC.109/2013/7,
22 February 2013.
9 The most complete and known narrative of this expedition is due to Antonio Pigafetta, one
of the eighteen survivors, written in Italian. Among the most recent reprints of its Spanish
version (Noticia del Primer Viaje en torno al Mundo) the edition of Ana García Herráez could
be mentioned (Valencia: Grial, 1998).

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Guinea explained out of his own experience, “men taste better than chicken”.10
But it may have also been because the anthropophagi of a certain rank
believed they could acquire strength and energy by eating noble parts of those
people they believed to be superior.
Cook had sailed up and down the Pacific, rediscovering islands that had
already been glimpsed by Spaniards and he eagerly looked for the legendary
and heavenly terra australis incognita that Magellan himself had thought he
had seen when he sighted Tierra del Fuego and that, in that same Century,
Álvaro de Mendaña had tried to locate without success.
Robert Graves has written a novel about the frustrations of the noble
Mendaña, who, in 1567, in pursuit of the biblical gold, actually discovered the
islands, which as can be guessed, he named Salomon. He failed to return there
thirty years later due to the lack of instruments to measure length. Instead, he
discovered further south the Marquesas and the Santa Cruz archipelago.11
If the life and death of Mendaña (whose name, adapted to Mendana is
nowadays the name of the main Avenue in the capital city of the Salomon
Islands) would be a good film script, the life of his young widow Isabel Barreto,
who went with him on the second expedition, would certainly offer a not less
interesting sequel. She succeeded her husband, commanded the expedition
and reached the Philippines, permanently confronting with the major pilot,
Fernández de Quirós, in a spectral ship where only she could shine.12 She could
be have been included among the icons of feminism avant la lettre as the first
woman to be Admiral and Captain General of the Ocean. But her strong char-
acter was the origin of a cruelty and selfishness that do not match the peaceful
and sympathetic nature of the feminist stereotype. Once in Manila she mar-
ried General Fernando de Castro, who was in charge of the Galeón del Pacífico.
Both went over the viceroyalties of America in between memorials and
projects till their trail was lost.
The Galeón del Pacífico or Nao de la China sailed from Acapulco, in Nueva
España, to Manila, core of a varied trade centred on the silk and the sil-
ver Spanish coins (the US dollars of that period) since the last third of the
16th Century. The story of the Galeón that ended at the beginning of the 19th
Century with the independence of the New World is striking. It is so, not only

10 A. Remiro Brotons, Civilizados, bárbaros y salvajes en el nuevo orden internacional (Madrid:

McGraw-Hill, 1996), 77, 109.
11 R. Graves, The Isles of Unwisdom (Spanish ed.: Las islas de la imprudencia, Barcelona:
Edhasa, 1984; Barcelona: Plaza & Janés, 1995).
12 P. Fernández de Quirós, Descubrimiento de las Regiones Australes, ed. R. Ferrando Pèrez
(Madrid: Crónicas de América, Dastin Historia, 2000).

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for the time and the lives that were lost before the winds and currents of the
return route were found, but for the detailed description of its shipments, ship-
wrecks, assaults, ventures and miseries of which the precise Crown13 bureau-
cracy has left us testimony.
One of the two oceanic atolls of the north eastern Pacific, is placed more
than six hundred miles to the southwest of Acapulco, which is the nearest
mainland. It was a point of reference in the course of the Galeón. Its ‘discov-
ery by intuition’ is attributed to Álvaro de Saavedra; he wrote this in the ship’s
log on 15th November 1527: “Today there appeared many sea-birds and land-
birds, and signs of land” In the place where he was supposed to be, those signs
could only correspond to what was later on named, due to its topography,
the island of Médanos (Dunes). Some pirates used this insignificant and hostile
island as a place to await the passing of the Galeón in order to board it. One of
them, mediocre and irascible, was John Clipperton, who believed he had ‘dis-
covered’ the island and gave it his name in February 1705.
It is quite regrettable that a criminal of no social standing, that died poor
and forgotten in Ireland, could have perpetuated his memory in the nomencla-
ture of the islands of the Pacific, as well as in the list of international arbitrages.
An award pronounced by the limited King of Italy, Vittorio Emmanuele III, on
January 8th 1931,14 giving the island to France, placed Clipperton as point of
interest of the experts in International Law, although it did not remotely reach
the importance of the arbitration pronounced by Max Huber some months
before in the case of the island of Palmas.15
Most of these experts, including the French ones, limit themselves, ignoring
the context, to mention the Clipperton award to argue about the importance
of the animus occupandi, even when there is lack of effective occupation, to
guarantee the acquisition and conservation of a legitimate title of dominion
in certain circumstances. The French claim was based, more than on a quick
sight during the Holy Week in 1711 (this is why we find the alternative name of

13 AA.VV., El Galeón del Pacífico. Acapulco-Manila 1565–1815 (México: Gobierno Consti-

tucional del Estado de Guerrero, 1992).
14 Affaire de l’Ile de Clipperton (1931), RIAA, II, 1105.
15 Arbitral Award of 4 April 1928, Island of Palmas (Netherlands v. United States of America)
(1928), RIAA II, 829. “The arbitrator’s comments on effectiveness, territorial claims based
on historical grounds and abandonment are hardly capable of general application. On these
questions, the decision of the Permanent Court of International Justice (PCIJ) in the Eastern
Greenland Case, as well as the award rendered in the Palmas Island Arbitration, deserve
far greater attention”, observes Tobias Pierling (“Clipperton Island Arbitration”, MPEPIL,
II, 2012, p. 248), reiterating what, saving the reference to Palmas, Ingo von Münch wrote
in the first edition of the Encyclopedia (II, p. 54).

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about the islands 323

island of Passion), on the fact that on 17th November 1858 the lieutenant Victor
le Coat de Kerveguen, when he was at half a mile from the island and on the
deck of the merchant ship L’Amiral, took possession of the atoll in the name
of Napoleon III. Then, without stepping on the island and without leaving any
sign of sovereignty, he happily left for Hawaii, that was then a monarchy under
the House of Kamehameha, and where three weeks later the French consul
in Honolulu notified the fact to the Hawaiian government and published the
information in The Polynesian, the local newspaper,
Due to the long time that elapsed between the conclusion of the arbitral
procedure (9th July 1913) and the date of issuing the decision (28th January
1931), it may be suggested that it had been drafted a long time before, even
before Huber had concluded the case of the Island of Palmas, or it could have
been modified considering ensuing conveniences. I have always suspected that
Victor Manuel’s award, so weak in its juridical basis, was determined by politi-
cal considerations linked to interests of Mussolini’s government, that had just
finished the Vatican question with the Pact of Letrán (1929) and that was at
that time trying to approach France.16
Against the formalism of the so called French ‘occupation’, merely virtual,
and the notoriety that the arbiter wilfully conceded to the information pub-
lished in the Hawaiian newspaper, Mexico could claim not only the succession
in rights of the Spanish Crown, but also—face to the French inaction in forty five
years—its effective occupation through a permanent garrison since 1906, dur-
ing the Porfiriato, up to 1917, when the reverberation of the Revolution, joined
to the effect of the tropical storms, was tragically projected on the forgotten
and stocked out soldiers, their families and soldaderas, victims of scurvy, hun-
ger and superstition in the most inhospitable of the islands, lashed by rains,
hurricanes and the most torrid sun, in the middle of the unbearable squawk-
ing of thousands of birds, on a length of land about a kilometre and half and
which width ranged between four and forty nine metres, and just two metres
and a half over the sea, except for the volcanic rock crowned by the lighthouse
erected by the Mexicans. Taking these circumstances into account, the arbitral
award is merciless and the law offers in this case the most wicked of its faces.
The arbitral procedure had concluded when tragic events took place. The
head of the detachment, Ramón Arnaud, and the three subordinates remain-
ing active died on May 1915, when their canoe was hit and overturned by a
manta ray, when they were pursuing a ship they believed to have seen in the

16 M. González Avelar, Clipperton, isla mexicana (México: Fondo de Cultura Económica,

1992); A. Gómez Robledo, México y el Arbitraje Internacional (México: Porrúa, 1994),
105–157.

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remote horizon. Immediately, a hurricane made the situation more difficult

and two weeks later Arnaud’s recent widow gave birth to his posthumous son.
The name of Island of Passion was never more justified. Laura Restrepo used
it as a title for her historical novel about that tiny Mexican community.17 The
Indio Fernández filmed this drama in the forties, in black and white, with no
success.18 A play, with music by Manuel Obregón, was written by Victor Hugo
Rascón Banda.19
The drama had not ended. The only surviving adult male, illegitimate son
of the governor at Colima, the negro Victoriano, making a quite personal inter-
pretation of administrative right, thought he could assume, thanks to his
military condition and his work as lighthouse keeper, the highest governing
authority of the atoll. He gave himself a coup d’état and declared himself king
with droit du seigneur imposing terror for two years within the reduced com-
munity of women and children that poorly survived there. This was till the
widows, attracting him to the place of his worldly pleasures, hammered his
head. It was the year 1917.
As in one of the happiest cinematographic endings, where the audience
applauds after two hours of watching dramatic events, the helpless group that
had suffered endless hardships was driven to Mexico by the gunboat Yorktown
from the United States. The gunboat had arrived that same day, and left the
unburied body of the scoundrel20 at the mercy of pigs and crabs. The opportu-
nity of going back to the continent had already appeared in a similar circum-
stance some years before, but lieutenant Arnaud together with his troop, had
refused to be evacuated in a naval unit from a country that was blockading the
Mexican ports and had occupied Veracruz. I have always asked myself up to
which point the fact that before being destined to Clipperton the young official
was about to lose his military career for cowardliness before a Court Martial,
influenced on his decision now considered heroic but that was fatal for him.

17 L. Restrepo, La isla de la Pasión (México: Planeta, 1989; Madrid: Alfaguara, 2007). Also,
W. Brown y Ch. Hitt, Island of Passion (London: Trafford Publishers, 2002); M.T. Arnaud
de Guzmán, La tragedia de Clipperton (México: Arguz, 1982); C. Labarraque-Peyssac, Les
oubliés de Clipperton (Paris: André Bonne, 1970).
18 La isla de la Pasión (Clipperton), Emilio Fernández, EMA, 1941.
19 V.H. Rascón Banda, La isla de la Pasión, music by Manuel Obregón, played under the
direction of María Bonilla in San José de Costa Rica, 2000.
20 Gordon Ireland, an authority on boundaries and territorial conflicts in America, did not
have his happiest day when he spoke of a Mexican garrison in Clipperton in 1860, for-
gotten for thirty years until a man and two women were rescued in 1890 . . . G. Ireland,
Boundaries, Possessions and Conflicts in Central and North America and the Caribbean
(Massachusetts: Cambridge, Mass., 1941), 319.

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about the islands 325

It should call our attention that in an island where only Mexicans lived and
died, the French flag should finally wave under the patronymic of an unsuc-
cessful English pirate. Why would France be interested in a coral atoll, at the
mercy of cyclones, in a place where only grew crabs the size of fists, thousands
of sea birds, and the lineage of a pair of shipwrecked and quarrelsome pigs?
The answer is: guano.21
It is noteworthy the role that the excrement of sea birds had on some juridical-
international developments since the middle of the 19th Century, when guano
became, as spices at the beginning of the Modern Age, a product of great spec-
ulative yield thanks to its condition of first and indisputable natural agricul-
tural manure. That ended with the discovery of the chemical fertilizers; but
by then, a new page had been written on Law and International relationships.
Guano could only be deposited in tons on deserted and uninhabited islands
under certain weather conditions and so to the Caribbean and the Pacific
went all class of adventurers and greedy capitalists (that would today be
called investors or entrepreneurs). The Treasury of the United States seized
the opportunity to make cash, organising the registry of guano concessions,
and the Congress did not doubt to adopt the Guano Islands Act in 1856, thus
making the business legal. Although they did not mean to assume sovereignty
over the islands just exploited by their concessionaries, unless other geostra-
tegic considerations so advice, the respect for the principle that in old Spanish
America there was no terrae nullius was discarded and the fraternal conflicts
of sovereignty that the Latin American Republics were trying to solve claiming
an evanescent utipossidetis, found the disbelief of those who denied them any
title over islands that offered no signs of effective occupation. No less than sev-
enty five uninhabited islands fell into the nets of the United States guano law
and some others found the protection of other States without being stopped
by the Monroe doctrine.22
Luis Napoleon sent a ship to Clipperton only because a commercial firm
of Le Havre proposed him the business and covered the freightage. Probably
the project did not go further because it was not commercially viable; the
truth is that after an officer took possession of the island after sailing three
days round it due to bad weather at sea with no possibilities of landing, there
were no more signs of the venture until when, near the end of the century,
came to Paris and Mexico the news that a company from California was there

21 J.M. Skaggs, Clipperton. A History of the Island that the World Forgot (New York: Walker &
Co., 1989).
22 J.M. Skaggs, The Great Guano Rush, Entrepreneurs and American Overseas Expansion (New
York: St. Martin’s Griffin, 1994).

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exploiting the guano they both considered belonged to each of them. The
crew of the Mexican gunship Democrata, less cautious than that of the French
ship Duguay-Trouin, landed, not without difficulties, succeeded in raising the
Mexican flag on the 14th December 1897, sent the guano workers back and
made a new agreement with a British company to exploit the guano.
The Quai d’Orsay put forward a claim in 1898 and proposed an arbitrage
that Mexico accepted eleven years after, just when the Mexican president was
about to seek exile in Paris. Would Mexico have accepted the arbitrage if it
had not been for the fall of the Porfiriato? Although the fact that Mexico was
in possession of the island in dispute and the limited interest that could be
expected from France might have let time pass, Mexico was the only Latin
American country that had signed the Convention for the Pacific Settlement of
International Disputes (The Hague, 29th July 1899) and the first to be a part
of it (when the instrument of ratification was deposited on 17th April 1901).
The terms by means of which the arbitral compromise was negotiated
were more disputable as it was the election of the King of Italy as absolute
arbiter, proposed by the Mexican government, if what the document signed
2nd March 1909 says is true. When the compromise was ratified, on May
9th 1911, Mexico was already part (since January 26th 1910) of the second
Convention of The Hague(18th October 1907).
Mexico, on the other hand, obeyed the award. After an unsuccessful attempt
to buy the island, on the 22nd December 1933, and after examining possible
legal getaways, the Congress amended article 42 of the Constitution, suppress-
ing the mention of the island of the Passion which, being sub iudice, had been
incorporated, either unwisely or for excess of confidence, to the Fundamental
Law in 1917. Would Mexico have accepted the King’s decision, had it not been
wishing to show the condition of ‘civilized’ country to the entelechy of the
International community, cleaning the image of the country as a predator
of papists (cristeros)? To a country with three thousand islands nearer than
Clipperton, subjected to a coercive process of territory loss in the continent
during the previous century, the loss of Clipperton could have seemed insig-
nificant. The claim of nullity of the award based on a very disputable apprecia-
tion of the international rules could have been tempting, if they could have
guessed the evolution of the Law of the Sea that forty years after made the atoll
in dispute, placed in the middle of nowhere, the horn of plenty in marine sov-
ereignty and jurisdiction within a radius of two hundred nautical miles.
It is remarkable that today in Mexico, without any revisionist purpose, but
with historic memory, there is a civil association, Amigos de Clipperton (Friends
of Clipperton), trying to philanthropically spread a story that most Mexicans

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about the islands 327

ignore. Being it an island only used for the landing of temporary official
scientific expeditions, which leave their trails on the rocks,23 France will remain
there unless a cataclysm takes the atoll to the abyss, something that not so long
ago, was mistakenly published. In 1970 the conscientious Netherlander scholar,
J.H.W. Verzjil, reported in his voluminous work International Law in Historical
Perspective the tale of the submersion of Clipperton subsequent to the arbitral
sentence, considering it doubtful that in case the islandre-emerged, it would
ipso facto return to France.24
Guano (and turtle eggs) can still provide an additional argument in the dis-
putes on insular sovereignty within the spectre of the manifestation of effec-
tivités that a State may allege against another one that does not have them. We
know that effectivités cannot prevail on a pre-existent dominion title, unless
there is acquiescence, but when this title is not proven or is doubtful, the effec-
tivités become relevant no matter how insignificant they may be. The fact that
the inhabitants of St. Eustache, Dutch Possession, fished turtles and collected
eggs in Aves island from the middle of the XVIII Century did nothing to shore
up the title of the Netherlands on this island against Venezuela as successor
of Spain and the first country having there an armed force. So decided Queen
Isabel II of Spain in the arbitral award of 30th June 1865.25 Instead, fishing
turtles and collecting eggs was very rewarding for Malaysia in its dispute with
Indonesia concerning the islands of Pulau Ligitan and Pulau Sipadan, before
the International Court of Justice,26 as they were other minimal effectivi-
tés observed by the Court in the cays contended for between Nicaragua and
Honduras,27 or in Pedra Branca and other minor rocks, disputed between
Malaysia and Singapore.28 Innocence being excluded, foresight, willingness or
fortune determined the destination of these geographical accidents.
Any productive activity over a piece of land permanently above water level,
no matter how small its surface is, might be alleged to avoid to be considered

23 J.L. Étienne, Clipperton, L’atoll du bout du monde (Seuil 7e Continent, 2005).

24 J.H.W. Verzjil, International Law in Historical Perspective, vol. 3 (Leyden: A.W. Sijthoff,
1970), 348.
25 RIAA, II, 412; D. de Barandiarán, El laudo español de 1865 sobre la isla de Aves (San
Cristóbal: Universidad Católica del Táchira, 1989).
26 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J.
Reports 2002, par. 127 ff.
27 Territorial and maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, ICJ Reports 2007, par. 172 ff.
28 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rock and South Ledge
(Malaysia/Singapore), Judgment, ICJ Reports 2008, par. 64 ff.

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as a ‘rock’ not suitable to be inhabited or to have economic life of their own.

These features enjoy territorial sea, but not, unlike islands, a continental shelf
or an exclusive economic zone.29 When the island/rock is situated less than
four hundred nautical miles from a foreign coast, the circumstance of its
qualification shall influence on the delimitation of the marine spaces of the
neighbours. In the 70’s Venezuela, erring on the safe, wisely negotiated advan-
tageous treaties with the United States of America and the European countries
with overseas territories near Aves,30 but the island-microstates surrounding
it have set claims that, to this day, have kept Caracas’ prodigal energy policies
restrained.
Aves is, on the other hand, an island that is apparently sinking, requiring
concrete injections to keep it afloat, as Japan is doing with its pretended island
Okinotorishima, which, in 1565, was named by its Spanish ‘discoverer’, Miguel
López de Legazpi, first governor of the Philippines, Parece Vela. Okinotorishima
is no more than a couple of stones coming out of the water some meter and
a half in high tide and together measure eight square meters in the middle of
an atoll surrounded by coral reef with an area of no more than five km. On
this Japan has spilled millions of U.S. dollars to create an artificial steel and
concrete structure that will allow it to claim an exclusive economic zone. This
would amount to four hundred thousand square kilometres due to the oceanic
status of this maritime feature. It is understandable that China disagrees when
Japan tries to give island status to these two minimal rocks.31
If they were to turn into shallows, would they keep the rights (either acquired
or historical) they were granted in the past? The climate change and the ris-
ing sea water levels may create havoc. The Maldives, in the Indian Ocean, and
Kiribati, Vanuatu or the Marshall Islands, in the Pacific, have islands and rocks
that do not surface over five meters in high tide. They are at risk of being sub-
merged part time if the scientific forecasts (to which first-world and emerg-
ing countries’ politicians pay lip service but not money), are confirmed. In an
outstanding thesis read recently at the Universidad Autónoma of Madrid,
Alejandra Torres Camprubí identified no less than seventy islands and coral
atolls that are in this dramatic situation in the Pacific Ocean. Interesting

29 Article 121 UNCLOS.

30 I. Morales Paul, La delimitación de áreas marinas y sub-marinas al norte de Venezuela
(Caracas: Biblioteca de la Academia de Ciencias Políticas y Sociales, Serie Estudios, 1983),
123 ff.
31 See C. Tirado Robles, Japón ante el Derecho Internacional (Pamplona: Thomson Reuters/
Aranzadi, 2013), 193–198.

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about the islands 329

questions are posed here about village relocation, identity, survival of the State,
its projection and maritime borders.32
With or without climate change, the volcano eruptions have had a double
and contradictory effect, both destructive and creative, on the islands over the
centuries. We all know how Krakatoa burst in August 1883 scattering debris in
a rain of incandescent stones and a tsunami of fire and ashes covering thou-
sands of miles around and taking almost forty thousand lives.33 Nevertheless,
the same submerged volcano gave birth to Anak Krakatau (Krakatoa’s son), in
1928. It has grown steadily and nowadays it is an island more than three hun-
dred meters high. Volcano experts forecast that it suffers from a genetic disease
and that one day it will join its fate to that of the father: burst.
Fifty years before, in January 1835, the eruption of Cosigüina, in the
Nicaraguan peninsula occupying one of the extremes of the Fonseca
Gulf, radically altered the topography of the Gulf. A small island men-
tioned in some maps, such as Thomas Jeffreys’ (1775) Nautical Chart and in
Vandermaelen’ map (1827), named Cullaquina, disappeared and in its place
two emerged, the present Farallones de Cosigüina, already recorded in Sir
Edward Belcher’s (1838)34 map.
Haritiri Dipla, after writing Islands for the MPEPIL,35 received the commis-
sion to write about the new islands.36 Here the emergence of one of them in July
1831, to the south of Sicily, is recalled, a consequence, once more, of volcanic
processes. The sovereignty on this island might have caused an international
conflict. Rather, what actually happened could have been the plot of an Italian
Comedy. As soon as word was passed of the island having emerged, the diligent
English stationed in Malta dispatched a ship, baptized the new Volcano baby
Graham and raised their flag. The King of the Two Sicilies, noticing its position
between Sicily and Pantelaria, considered that the baby could only be his and
named it Ferdinandea. The French, apostles of the menage à trois, claimed it
for themselves and named it Julia. Even Spain enlisted as candidate.

32 A. Torres Camprubí, Climate Change and International Security: Revealing New Challenges
to the Continuation of pacific islands Statehood (Madrid: Departamento de Derecho
Público y Filosofía Jurídica, U.A.M., 2014), Part II and Table 2.
33 Among the pictures, Krakatoa, aleste de Java, Bernard L. Kowalski (dir.), American
Broadcasting Co., 1969; Krakatoa, The Last Days, Sam Miller (dir.), BBC, 2005.
34 This fact was extensively addressed by El Salvador in its application for the revisión
(10 September 2002) of the ICJ judgment of 11 September 1992 in the case concerning the
Land, Island and Maritime Frontier with Honduras (Application, par. 94 ff.).
35 H. Dipla, “Islands”, MPEPIL, 405–414.
36 H. Dipla, “Islands, New”, MPEIL, 414–416.

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Finally, Nature, having created the problem, came to solve it: the new atoll
submerged six months after its appearance. Just in case it emerges again,
because it is less than ten meters below the surface, Italian divers set a trail
affirming: “l’isola Ferdinandea era e restadei Siciliani”. I have read that in 1980
an airplane from the United States of America bombarded the top of the sub-
merged island because it took it for a Libyan submarine. Se non e vero e ben
trovato. The volcano did not retaliate. On the other hand, Surtsey Island, per-
sists. It appeared ten miles from the Westmannaeijar group in 1963. Though
nowadays it is half its original size due to erosion, it will apparently survive for
more than a century. Only Iceland has claimed it, so there is no controversy.
We may share the concept that any island emerging in the territorial sea of
a State belongs to it; but considering that on the continental shelf sovereignty
becomes jurisdiction, it becomes doubtful to follow the same view in this case,
no matter that I sympathize with the idea of considering islands, against the
law in force, natural expression of a shelf which is the projection of the coast.
To propose that the new island is res nullius means to follow the game of the
powerful. This thesis would moreover ruin the intelligent provisions of some
maritime boundary treaties (as India-Burma, 23 December 1986)37 which
establish that the new islands shall be under the jurisdiction of the State where
they emerge, without affecting conventional borders. Res inter aliosacta, third
States should not consider themselves bound.
A new island may be the object of dispute among neighbouring States, and
influence on the setting of boundaries if this issue is pending. But it should not
be accepted the alteration of a boundary treaty in force nor its occupation by a
third State as a title of dominion.
Volcano eruptions in remote areas of the ocean may cause the appearance
of ephemeral islands, as Ferdinandea, or of something that resembles an island
but are actually pumice stone barges floating on the waters. The María Theresa
Reef (or Tabor Island) was first seen in 1843 by Captain Taber (not Tabor) who
named it after his whale ship. A similar experience was that of the Captain of
the Jupiter in 1878 and that was the name he gave to the Reef he saw or thought
he had seen. The Wachusset Reef was marked by the Captain of the homony-
mous ship in 1899. The same happened in 1902 with the Ernest Légouve Reef.
The list could undoubtedly go on. None of these accidents was ever spotted
again. Maybe some navigators were too long at sea, had a certain amount of
alcohol in their system, wanted fame, had a strong sentimental frustration or
simply enjoyed pranks. But it is quite probable that their observations were
accurate, that there was an island there for weeks or months or that they

37 Article V. 1484 UNTS 173.

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thought they saw one where there was magma of floating volcanic residues
meant to disappear in the short term.
Cartography records these pretend islands until their inexistence is irrefuta-
bly verified. This is done out of prudence. We should not be shocked, then, or
ridicule those responsible for the cartographic services as naive or lacking in
rigor. Quite the opposite. It is the case, nevertheless, that thanks to the spread-
ing of maps by Institutions as National Geographic or Google Maps, popular
access to information relatively reserved before, has turned amendments into
news. This happened not long ago with Sandy Island (Île de sable), mapped
near New Caledonia since the end of the 19th Century, when a topographer
ship of the Australian navy verified there was no island in the coordinates set
in the maps.
There are islands, such as the magallanica terra australis incognita, that
have been a rumour, a wish, an indecipherable destination. Islands some
people affirm to have seen rise through the morning mist and vanish when
they set course, maybe driven away by the most formidable marine currents
managed by the gods. One of these islands, the Non Trubada or Encubierta, was
supposed to accompany the Afortunadas, the Canary Islands.38 It goes without
saying that the most absolute happiness awaited us there. It is quite surprising,
or maybe not, that the island is mentioned among the ones in the archipelago
King Manuel of Portugal waived to the benefit of Spain by the Treaty of Évora,
on 4 June 1519. So that the island became positive international law, as those
Stock Exchange operations negotiating futures.
If there is a collective responsibility, asymmetric as it may be, for the forceful
moving of island inhabitants due to the climate change, the deportation others
have suffered due to the most savage capitalist greed or perverse geostrategic
considerations is still more reprehensible. For the Banaba (known before as
Ocean Island) natives, it was a misfortune that the island was a phosphate
open sky mine and that the British Phosphate Commission (BPC) set eyes on
it. The same Company turned Nauru into a hole. In 1941 the BCP acquired the
Rabi island, and by the end of WWII moved there (using false arguments and
promises) the four thousand inhabitants from Banaba, who were then doomed
to all kind of misfortunes.39
The fate of the people on the Diego García atoll (named after a Spaniard
at the service of Portugal) was no better. They were victims of their privi-
leged situation in the Indian Ocean. The Chagos Archipelago was segregated
from Mauritius in 1968 by the United Kingdom, in order to maintain their

38 S. Martin, Insula de Babel (Madrid: Idea, 2007), 33–74.

39 See www.banaba.com.

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dominion after the independence of the territory. The one thousand eight hun-
dred inhabitants were deported by the British government, who wanted the
island ‘clean’ to be rented, as if it were a huge aircraft carrier, to the United
States of America. They have established there a naval air station for their
operations in the Horn of Africa, the Persian Gulf and the Malacca straights,
and lately, into one of their privileged extraterritorial detention centres to keep
suspects of terrorism. The Manichaeism that inspires the moral sense of great
political leaders may explain that Mrs. Thatcher could dispute in the British
Courts to keep the eviction measures against Chagossians taken by her pre-
decessors, thus miserably violating their right to self-determination, while she
emphasized the same principle (as British) for the imported Falklands popula-
tion after their occupation by the United Kingdom.
But the best thing any power may wish for are the uninhabited islands in an
archipelago. An inch of strategic value they may have due to their geographi-
cal situation and its condition as terrae nullius, open to occupation regard-
less of any decolonization process, shall be alleged by the interested power.
This has happened with the Malgaches Islands (the Gloriosas, Juan de Nova,
Europa, Bassas da India), in the Mozambique channel, taken from Madagascar
by France and nowadays included in the district of Indian Ocean Dispersed
Islands, which (France says) entered its patrimony via occupation. In the face
of this, what can Madagascar do, but state its protest against the occupation
while the matter awaits, almost dead, in the agenda of the General Assembly?40
Uninhabited small islands and coral reefs may be included in the plans of
swindlers, either covered or not, by a certain biblical or pseudo religious var-
nish. Thus, you may find in the web reference to a pretend Kingdom of Enen
Kio, settled on Wake Island and its dependencies (Peale Island and Wilkes
Island). The three of them do not amount to an area of seven km. The ‘authori-
ties’ of the Kingdom maintain a separatist attitude founded on the visits to
these islands of the Marshall natives looking for the wing of a marine bird
which used to nest there, in order to escape sacrifice in ritual ceremonies, were
they unsuccessful The Marshall Islands Government has denied implication of
their inhabitants in this plot.
As Birds of a feather flock together, the Kingdom of Enen Kios subscribed in
1997 a peace and friendship treaty with the Dominion of Melchizedek (DoM),
also known as Republic of Lemuria, a domain created in 1986 with social head-
quarters in California which has claimed sovereignty over Karitane Island since
1994 and the administration of the Taongi Atoll since 1997. The Taongi Atoll is
an actual atoll, discovered by Alonso Salazar in 1526, but no one has been able
to locate Karitane Island, unless it is a promontory situated nine meters below

40 Point 60 of the Provisional Program of the 69th period of sessions (2014).

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about the islands 333

water level south of the Cook Islands. The DoM, as a Kingdom, has ‘granted’
bank licenses and has issued passports and travel documents, among other
activities. It affirms it was recognized de iure by the Central African Republic in
1993 (quite a recommendation!), that it subscribed a treaty with the Ruthenian
Peoples the following year and declared war to Serbia in 1998 after recognizing
the Republic of Kosovo, even before the Albanians declared their Independence
protected by the United States of America and the most conspicuous members
of the European Union . . .
Even more sophisticated is the Project to create a paradisiac city-state in
the Caribbean using the new technologies that would allow to settle it on reefs
and lowlands situated between the 83° 10’ and 84° 30’ W meridians and the
19° 15’ and 18° 15’ N parallels one hundred miles away from any other State:
The Principality of New Utopia, a constitutional English language monarchy
which is nowadays mourning the death of Prince Lazarus, whose ashes, spread
on these waters, will give new impulse to the business. One wonders how a
Princedom shall obtain State status situated as it is in the exclusive economic
zone of one or more States in an enclosed sea as the Caribbean is. It is one
thing to be the owner of an island in compliance with the laws of a sovereign
country and quite a different one to be sovereign and recognized as such by
international rules and subjects. Money usually makes the former easy, but the
latter requires more determination.
Certainly, an uninhabited island is also a great temptation for a writer to
use the castaway as parabola, as Daniel Defoe did with the most celebrated
Robinson Crusoe in 1719. It is to be noted that, as in many other occasions,
Defoe found part of his inspiration on the Scotsman Alexander Selkirk, aban-
doned by his Captain in 1703 on the most eastern island of the archipelago
discovered by the Spaniard Juan Fernández in 1574, which was home to pirates
for more than two centuries. The main islands, Más Afuera and Más a Tierra,
600 km. from the continent in approximately the same latitude as Santiago de
Chile, took the names of the castaway and his literary alter ego less than fifty
years ago.
It was quite common for Captains to abandon on desert islands the mem-
bers of the crew that defied their authority or were guilty of certain crimes.
What was not so common was the birth of a whole community formed on
a desert island by a group of mutineers. Such is the case of Pitcairn, sighted
by the midshipman of this name in 1767, though discovered by Fernández de
Quirós in 1606.41 Nowadays it is anon autonomo us territory administered by

41 P. Fernández de Quirós, Descubrimiento de las Regiones Australes, ed. R. Ferrando Pèrez

(Madrid: Crónicas de América, Dastin Historia, 2000).

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the United Kingdom, with some fifty inhabitants, included in the agenda of the
Committee of 24.42
This is the curious case of a population holder of self-determination rights
originated in a mutiny, the famous mutiny on the Bounty, to which Lord
Byron consecrated a poem43 and that has been depicted in no less than three
Hollywood films,44 and in dozens of books which have thoroughly investigated
it.45 Would Captain William Bligh and his first officer and leader of the insur-
rection Fletcher Christian be remembered today had it not been for the 1789
episode, while Paris was burning in the Revolution? Certainly not. They would
quite probably both have developed an honourable naval career. Drama made
them part of history.
Bligh, who had navigated with Cook, managed the feat of sailing approxi-
mately six thousand nautical miles on a boat crowded with loyal people with
only a sextant and a pocket watch, till he reached the coast of Timor. Christian,
who had noticed the wrongful location of Pitcairn in the Admiralty maps, as
well as its resources for human settlement, led the mutineers who wanted to
follow him together with some Tahiti natives to the island. He literally burnt
the Bounty to mark a fate that, against all his best wishes, would be marked by
violence. They were either short of women or had too many men. The Tahitians
were treated as servants. They, of course, plotted against the British. Christian
was murdered on the patch he was cultivating.46
A story is told that when years after that a British officer re-discovered the
island and disembarked in Pitcairn, he found a group of sloppy dressed young
men who answered his questions in English. Thus, it is said H.M. officer under-
stood that English was the language of Paradise, because, how else could it
be natives could speak it? It is a pity this did not actually happen. If it had,

42 Working Doc. A/AC.109/2013/3, 11 February 2013.

43 G. Gordon, Lord Byron, The Island o Christian and his comrades (London: John Hunt,
1823).
44 Mutiny on the Bounty, Frank Lloyd (dir.), MGM, 1935; Mutiny on the Bounty, Lewis
Milestone (dir.), MGM, 1962; The Bounty, Roger Donaldson (dir.), MGM/UA, 1984.
45 So, C. Alexander, The Bounty:The True Story of the Mutiny on the Bounty (London: Harper
Collins, 2003). Spanish ed.: La Bounty. La verdadera historia del motín de la Bounty
(Barcelona: Planeta, 2005). As historical novels, C. Nordhoff y J.N. Hall, Mutiny on
the Bounty (I), Men Against the Sea (II) y Pitcairn’s Island (III), 1932–1934. Spanish ed.:
El motín del Bounty (I), Hombres contra el Mar (II) y La isla de Pitcairn (III) (Barcelona:
Muchnick, 2001–2002); J. Boyne, Mutiny in the Bounty, 2008. Spanish ed., Motín en la
Bounty (Barcelona: Salamandra, 2008).
46 T. Lummis, Pitcairn Island; Life and Death in Eden, Pitcairn Island and the Bounty Mutineers
(London: V. Gollancz, 1997).

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about the islands 335

the answers would have been in pitkern, combining 18th Century English with
Polynesian, nowadays one of the official languages of the island. What actually
arrived was an American whaler, the Topaz, in 1808. When the boat sent to
look for seals, wood and water was getting near a coast believed uninhabited
the captain observed that a canoe served by three skilled rowers was approach-
ing them shouting. ‘Who are they?’, the sailors asked themselves. Noting their
suntanned skin and elegant shape, one of them said: “Curse them, they must
be Spaniards!”.47
It is good to clarify that the long arm of the British justice reached the muti-
neers who did not follow Fletcher Christian to Pitcairn, and preferred to stay
in Tahiti together with those members of the crew who, not being mutineers,
had to stay on the Bounty for its service and for the limited capacity of the boat
where Bligh was forcefully boarded. Actually, the mutineers were only eleven
out of forty two people on board. However, Captain Edwards, on the Pandora,
made no distinctions among the fourteen he caged to take to Great Britain,
where only ten arrived alive and three were finally hanged.
A few years later on the nearby Henderson, discovered by Fernández de
Quirósat the beginning of the 16th Century, as Pitcairn, there was another
tragic story when the men from the American whaler Essex, attacked and
wrecked by a white whale, reached the shore and had to resort to cannibalism
to survive till they were rescued. This happened in 1820. Thirty years later, in
1851, Herman Melville published Moby-Dick.48
My fascination for the islands I was referring to when I started with fes-
tive and idle heart this contribution to the Jubilee Book offered to my dear
friend Hugo Caminos does not certainly extend to certain geographical fea-
tures which, qualified as rocks in the most generous of the meaning, enjoy a
territorial sea, often expanded with the complicity of shoals. No one seems
to be daunted by the fact that as far back as the 11th Century the Navigatio
Sancti Brandani chronicle mentioned that hell island was an isolated rock at
sea where Judas (Iscariot)49 was chained.
The skilful drawing of straight base lines may make a worthless rock the
centre of a disproportioned perimeter for the projection of rights over the sea,
the sea bed and its subsoil. This circumstance explains the increased conten-
tiousness in the last fifty years for and around the most modest geographical

47 C. Alexander, The Bounty: The True Story of the Mutiny on the Bounty (London: Harper
Collins, 2003), 347 (Spanish ed., 398).
48 H. Melville, Moby-Dick or The Whale (New York: Harper Bros. Publ., 1851).
49 It is mentioned by Umberto Eco, Storie delle terre e dei luoghi leggendari. Trad. española:
Historia de las tierras y de los lugares legendarios (Barcelona: Lumen, 2013), 155.

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features which were once considered threats to navigation and cemetery for
shipwrecks and unfortunate sailors. Today, there is a desperate search for his-
torical titles and rapid and effective occupation on more or less suspicious vol-
canic or coral reef protuberances. In the Caribbean, for example, names such
as Roncador or Quitasueño depict what people thought of them. The poet,
accusing Kings of promoting “ferocious war for an extra piece of land” could
not, when reciting the poem, have imagined that in our time ‘an extra piece of
land’ would actually be the most insignificant rock in accordance with the laws
of a sea he thought free.50 Romantic, but untrue.
This contentiousness would never have existed if the sovereignty projection
over sea of sterile rocks incompatible for human settlement, lacking a tree,
incapable of offering refuge to the solitary ship wrecker, had been neutralized.
It would have sufficed to make the nearest States, the Parties in Treaties and
the international organizations for maritime cooperation responsible for guar-
anteeing the safety of life at sea, for articulating the means to prevent acci-
dents by erecting lighthouses and other complementary systems. But the legal
evolution, interpreted at Court, has been the opposite. What poetic license can
the player of a bad script allow himself?

50 “Allá muevan feroz guerra ciegos reyes por un palmo más de tierra, que yo tengo aquí
por mío cuanto abarca el mar bravío a quien nadie impuso leyes” (J. de Espronceda, “La
Canción del Pirata”, El Artista, 1835).

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 PART 7
Navigation: Freedom and Responsibility

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 Chapter 20

Coastal and Flag States in Situations of Distress

at Sea Giving Rise to Environmental Damage

Agustín Blanco-Bazán

Introduction

While the thirty years passed since the adoption of the United Nations Con-
vention on the Law of the Sea (UNCLOS) were celebrated worldwide towards
the end of 2012, less auspicious proceedings marked the tenth anniversary
of the worst maritime environmental casualty in Western Europe. At a Span-
ish judicial court in La Coruña (hereinafter, “the Court”), the circumstances of
the breaking in 2002 of an oil tanker, the Prestige, were re-examined at a trial
aimed at establishing the criminal and civil liabilities.
On 13 November 2013 the Court acquitted the master of the ship, the chief
officer and the Head of the Spanish Merchant navy from charges of commit-
ting environmental crimes. A nine months prison sentence was given to the
Master for ‘serious disobedience’ for refusing during a period of three hours
to allow the Prestige seawards towing insisting instead that a place of refuge
should be granted.1 The sentence, now appealed by several plaintiffs, invites
considerations on issues of paramount importance at the crossroads of crimi-
nal law, law of the sea and general international law, namely:

The strength of force majeure as exculpatory remedy in connection with

allegations of criminal acts against the marine environment;
rights and obligations owed by coastal states to foreign ships in dis-
tress, in particular the duty to grant refuge; and
the extent to which the duty to grant refuge should be related to the
coastal State’s right to intervene beyond its territorial seas to prevent pol-
lution damage.

These issues shall be developed bearing in mind the pre-eminent operation

of Jus Aequum in emergency situations beyond human control. The prin-
ciple according to which a good judge decides according to what is just and

1 Sentencia de la Audiencia Provincial, sección 1 de La Coruña.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_021

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right becomes particularly relevant in cases where force majeure (in this case
consisting of distress at sea) should remove excuse those involved from any
wrongdoing.
Hugo Caminos’ decisive contribution to international law and law of the sea
since the post-war years to present has been guided by a clear comprehension
of the role of ius gentium and the general principles of international law, the
application of which should always prevail in the application of the treaties and
recommendations aimed at enforcing the universal premises contained in the
United Nations Convention on the Law of the Sea (UNCLOS). His experience
and knowledge in this regard allows him to express his views as sober, straight-
forward common sense with fairness at the core. The following thoughts aim
at being similarly fair in the evaluation of the dilemmas frequently confronting
flag and coastal states when dealing with situations of distress at sea result in
pollution damage to the marine environment.

Criminal Liability and Distress at Sea

Was it really an accident? A clear answer to this question is vital to decide

whether criminal liabilities can or not be established amidst situations of
force majeure (tempestuous weather in the case of the Prestige). Following the
occurrence of mayor environmental catastrophes caused by breaking of oil
tankers during the last fifteen years, the exculpatory effect of accidents at sea
is being increasingly disregarded in the case of seafarers. As a consequence,
their right to be exempted from criminal liability in situations beyond their
control is snubbed in favour of a concept of retribution aimed at imposing
criminal sanctions without proving wilful or negligent misconduct. Basic prin-
ciples of procedural criminal law are also ignored in this quest towards punish-
ment without culpability. Seafarers are detained for periods exceeding what is
strictly required for a prima facie assessment of facts and bail is either denied
or provided against exorbitant amounts. At the same time seafarers under
detention become the scapegoats of a public opinion instigated by politicians
and activists only too eager to shout ‘guilty!’ before the passing of a judicial ver-
dict. In this regard the wrecking of the Prestige inaugurated a trend promptly
followed by the Tasman Spirit (2003) and Hebei Spirit (2007) cases.
In the case of the Prestige the assessment of the force majeure situation
leading to the tanker’s breaking involves a rather complex analysis of inter-
connected features. To start with, the master and the chief officer of the
Prestige were accused of neglecting their duties of care by deciding to sail a

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Coastal and Flag States in Situations of Distress 341

substandard ship across exceptionally stormy waves. It was held that such
decision implied grave negligence ante facto: in deciding to go ahead under
such inauspicious circumstances the master would have acted with a temerity
at odds with his duty to prevent an accident waiting to happen on account of
the combination of bad weather and technical deficiencies affecting the ship’s
seaworthiness. Against this accusation the Court at La Coruña could not but
conclude that evidence in this regard was insufficient to establish criminal lia-
bility. To start with, a District Court in New York had already dismissed a legal
action taken by Spain against the ship’s classification society, the American
Bureau of Shipping (ABS) requesting compensation on grounds that the ABS
had acted with recklessness and negligence in its inspection of the ship and
the consequent issuing of certificates of seaworthiness. These certificates had
been endorsed by the flag State in accordance with the rules contained in a
multilateral treaty accepted by countries representing approximately 99pct
of the world merchant fleet, namely the Convention of Safety of Life at Sea
(SOLAS). Under such circumstances, it would have been very difficult for the
Master to claim that the ship was substandard in order to take exception from
his contractual duties to sail it towards its destination. Besides, the ship was
navigating through a sea lane under the control of the coastal State (Spain).
Accordingly, this last one would have shared some responsibility for not for-
bidding navigation or instructing either a delay or an alternative route.
Once the alternative of culpability ante facto was removed the Court
addressed the alternative of a criminal conduct committed during a situa-
tion of force majeure. This is a task where difficulty verges on the impossible
because, how can wilful misconduct or serious negligence be established
amidst a situation by definition beyond the control of the alleged offenders?
In the case of the Prestige, lack of evidence to prove intentional or reckless
wrongdoing was compounded with proof of the nearly heroic zeal invested
by those involved to save the ship and prevent the leaking of oil. Even if ret-
rospectively these efforts were found to be mistaken, no criminal liability
could have been attached under such circumstances: the subjective element
required to establish such liability cannot be construed post facto but on the
contrary bearing in mind the mental capacity of the alleged offender to dis-
cern on his or her wrongdoings at the time of their occurrence. The Court’s
decision not to incriminate the defendants came thus as no surprise to anyone
acquainted with basic principles of criminal law. Much to the chagrin of those
hoping to have scapegoats in jail by the Christmas of 2013, the Court repeat-
edly noted the lack of sufficient evidence to prove beyond reasonable doubt
criminal intention: mistakes that could have been committed bona fide during

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a situation of distress simply could not be judged retrospectively as wilful mis-

conduct or serious negligence as relevant causes of the ship’s breaking and the
ensuing environmental damage.
The Court’s decision to acquit the defendants from crimes against the envi-
ronment reaffirms the basic principles of the exculpatory effect of force majeure
in the field of criminal law: situations beyond human control are essentially
factual. As such they cannot be subsumed under preconceived criteria estab-
lished by written law. It is on account of this fact that the Jus strictum of writ-
ten law must be corrected by Jus aequum, namely an approach guided by the
Judge’s appreciation of what is just and fair in particular cases and circum-
stances. Judgements use expressions such as absolute constraint, or absolute
and uncontrolled necessity to refer to situations where facts impose themselves
over any written law. Such expressions reflect the judge’s understanding and
empathy resulting of putting him or herself in the place of those involved in
an accident at the time of its occurrence. There is no room for retrospective
assessments aiming at declaring them guilty bearing in mind a catastrophic
end-result rather than their bona fide intentions to prevent it to the best of
their abilities.
Georg Schwarzenberger’s explains for the exculpatory effect of force majeure
by explaining that ships in distress do not conform a subject matter of jus
strictum but rather as jus aequm.2 In other words, distress escapes the strict
requirements of criminal responsibility by operation of the basic principle at
the core of the raison d’être and justification of any legal ruling, namely equity.
In the realm of equity, preconceived legal rules do not play a leading role: right
legal decisions can only come out of an appropriate reading an interpretation
of circumstances of each case in accordance to general principles of law and
justice. Henceforth the decisive exculpatory meaning of distress in the field
of criminal law: any circumstance escaping the combination of objective
and subjective requirements regulated by jus strictum becomes exculpatory
by operation of jus aequm. It is in this regard that the concept of nullum cri-
men sine legis operates as a basic requirement to impose criminal sanctions
solely on the basis of a previously written law typifying illicit acts in detail
and involving not only a relation of objective causality between the facts and
those involved but also a subjective perception of wrongdoing. In any case
where force majeure becomes the main cause of damage, only wilful mis-
conduct or grave negligence making things worse can account as grounds to
determine criminal responsibility. Negligence of a lesser kind is not enough

2 See Georg Schwarzenberger, The conceptual apparatus of international law in The process of
International Law, ed. R. St. J MacDonald & D.M. Johnston (Leiden: Martinus Nijhoff, 1983).

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Coastal and Flag States in Situations of Distress 343

to remove the legal implications of an ‘accident’ to the point of sending any-

body to jail. Civil, not criminal liability may be applied in such cases in order
to establish liability for damage and obtain the payment of compensation nor-
mally covered under third party liability insurance schemes. Prison is out of
the question.

Interaction between Flag and Coastal States in the Management of

Distress Situations. The Question of Granting Refuge

While the no guilty verdict passed on all defendants seemed an obvious con-
clusion on account of lack of elements to substantiate either wilful or reckless
misconduct resulting in damage to the environment, no proof was needed to
sentence the Master of the Prestige to nine months imprisonment on account
of his disobedience to immediately follow the order from the coastal State
to tow the ship away from the coast. Disobedience is a crime consummated
by the sole occurrence of the incriminating conduct, without need to establish
the existence of any particular motivation or damaging effect external or addi-
tional to a simple negative to follow orders issued by the competent authority.
Exculpation can only follow if the defendant manages to prove circumstances
such the impossibility to understand an order on account of factors beyond
the master’s control. In the case of the Prestige, its master did not help his own
situation by justifying his delay to obey on grounds that he had to entertain
consultations with the owner and the salvor. In a state of emergency located
27 nautical miles away from the coast, it was not wise to try to assert in this
way the primacy of flag State jurisdiction against an instruction emanating
from the coastal State. Neither did the master helped himself by trying to
counteract the coastal State’s command to move the ship towards the high seas
with a request to do exactly the opposite, namely to be allowed to sail towards
a place of refuge in the Spanish coast. The nine months prison sentence will be
commuted against the disproportionate period of nearly two years detention
(out of which more than 80 days in a high security prison) the Master had to
serve in Spain.
Nevertheless, the guilty verdict passed on the master did not preclude
considerations on the degree to which the order issued by the coastal State
was supported by a careful evaluation of the distress situation as well as the
preparedness to counteract such emergency. In fact, the contrary seemed to
happen. The Court highlighted lack of coordination and preparedness of the
coastal States thus reaffirming the existence of deficiencies that had even been
acknowledged by the Spanish Prime Minister as soon as the the catastrophic
consequences of the breaking of the Prestige 137 miles away from the coast

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344 Blanco-Bazán

became known. It therefore seems that the initial request by the master to be
granted refuge was justified, even if there may not have been enough grounds
to excuse the Master’s disobedience. Under these circumstances the reason-
ability of the tow away instruction was inevitably subjected to severe criticism
and policy makers were compelled to face a dilemma of important implica-
tions for the development of international law and the law of the sea: in the
light of the lessons learned from the Prestige disaster, should the duty to grant
refuge generally acknowledged under customary law not be incorporated into
treaty rules aimed at regulating the reciprocal rights and obligations of flag
and coastal states in emergency situations? An affirmative answer to this ques-
tion would significantly alter in favour of flag States the balance of private law
interests navigating under foreign flag and the coastal States entitlement to
impose upon its jurisdictional waters a public law regime in particular in con-
nection with the protection of its natural maritime resources.
As if frequently happens when potentially conflictive situations confront
international shipping with coastal State interests, regional initiatives started
proliferating at a European level thus creating the risk of discriminatory unilat-
eral regional actions affecting global commercial navigation. Unilateral prohi-
bitions for single hull ships entry into jurisdictional waters of some countries
in the European Union were compounded with proposals for the establish-
ment of severe restrictions around the west coast of Europe under the aegis of
a scheme applicable to sea zones particularly exposed to pollution known as
‘particular sensitive sea areas (PSSAs)’.
Proposals for the establishment of a Western European PSSAs were submit-
ted at the International Maritime Organization (IMO), the sole UN specialized
agency with a mandate to issue global rules for the safety of navigation and the
prevention of marine pollution from vessels. IMO was also requested to to con-
sider whether the barricade of initiatives aimed at protecting the interests of
coastal States should not be counterbalanced with the adoption of rules aimed
at regulating the customary law principle of grating refuge to ships in distress.
The prompt adoption of non binding guidelines on the subject by the IMO
Assembly in 2003 was followed by a debate on whether the international com-
munity should not go further and develop clear treaty law regulations, rather
than simply soft law recommendations. Although a concrete proposal in this
regard made at the Legal Committee of IMO failed to achieve the consensus
required from flag and coastal States and representatives of the maritime
industry, the IMO’s post Prestige initiatives in the field of places of refuge mer-
its an evaluation on account of its significance as initiative to further develop
international law on a question of vital importance to reconcile the interests of
flag and coastal states in the prevention of environmental catastrophes at sea.

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Coastal and Flag States in Situations of Distress 345

IMO Guidelines on Places of Refuge

As is normally the case of IMO resolutions, Resolution A.949(23) on

“Guidelines on places of refuge for ships in need of assistance” adopted by the
IMO Assembly on 5 December 2003 contains recommendations of a techni-
cal, rather than political kind. Advice is provided to Governments, shipmas-
ters, shipping companies and salvors on how to respond in a complementary
and organized way to distress situations in which the granting of places of ref-
uge may become a substantive issue.
Nevertheless the Preamble betrays an understanding of the potentially
opposing rights and obligations confronting flag and coastal States it declares
as the main purpose of the Guidelines to provide answers “the need to balance
both the prerogative of a ship in need of assistance to seek a place of refuge
and the prerogative of a coastal State to protect its coastline.”
Is there any way to regulate this balance by establishing clear rights and
obligations for all parties involved? Up to a certain point the reference to the
need to achieve a ‘balance’ of ‘prerogatives’ acknowledges that, at most, coex-
istence rather than agreement can be achieved. In this regard the Guidelines
explicitly acknowledge that when “permission to access a place of refuge is
requested, there is no obligation for the coastal State to grant it” (3.13). However,
they also indicate that “the coastal State should weigh all the factors and risks
in a balanced manner and give shelter whenever reasonably possible.” In the
light of such a comprehensive assessment “the coastal State should decide to
allow or refuse admittance, coupled, where necessary, with practical require-
ments” (idem).
The recommendation to weight all factors and risks and for the costal State
should give shelter whenever it reasonable possible reflects the widely accepted
view that the obligation to provide shelter to ships in distress is an old and well
known principle enshrined in international customary law. Necessarily, this
principle implies an obligation for the coastal State to deny refuge only if it has
good reasons to do so. However, the irruption of environmental law in the field
of maritime law and law of the sea has decisively modified the features of the
right of a ship to be granted refuge and that of the coastal State to deny it. In
the past no ship would pose the environmental risks as modern supertankers
do today and, accordingly, the coastal State’s excuses not to grant refuge were
extremely limited. Nowadays, the coastal State’s right to prevent environmen-
tal damage to its coastal interests and living and non-living resources up to
200 miles from the baselines of its territorial sea has considerably expanded
the limits of its prerogative not to grant refuge: depending on the criteria used,
reasons for denial can vary from well proven facts to extremely general and

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346 Blanco-Bazán

unfounded fears or apprehensions not supported by technical evidence. This

seems to have been the case of the Prestige, on account of the erratic behavior
by coastal authorities and a lack of preparation to deal with emergencies. The
coastal States authorities decided to send the ship away thinking that the fur-
ther from the coast the better the chances to protect coastal interests. In the
event the contrary happened and not only Spain but also its neighbors were
visited by the worst environmental maritime catastrophe ever to happen in
Western Europe.
The background of this traumatic experience gives weight to the recom-
mendations contained in the IMO guidelines on the need to evaluate ‘all fac-
tors and risks’ and, depending of this evaluation to grant of refuge when it is
reasonable to do so. In cases where refuge is denied, the Guidelines propose
that the denial must be based on clear grounds constructed on the basis of a
positive and proactive reasoning: simple fears, or denials ‘just in case’, are not
enough. In the end basic principles of environmental law involve a concept
of solidarity with neighbor states and above all a commitment to the global
marine environment in general. This commitment is incompatible with ‘go
away’ command given without a technically substantiated explanation.

The CMI Proposal for Treaty Rules on Places of Refuse

Even before the breaking of the Prestige the issue of places of refuge became
part of the agenda of the the IMO Legal Committee in the wake of the Erika
and the Castor incident. Main legal issues at stake was the provision of finan-
cial security to cover coastal States’ expenses and/or compensation issues in
connection with the granting of refuge.
Following the Prestige incident, it fell upon Spain the task of highlighting
the risk of coastal State’s exposure to claims of unlimited liability in case refuge
was granted to ships in transit not insured in accordance with IMO multilateral
treaties establishing limitation of liability for oil pollution damage, in particu-
lar the Civil Liability Convention 1992 (CLC), the Fund Convention 1992. At the
time the Bunkers Convention 2001 was not yet in force. Neither was another
important treaty establishing limits of liability and compensation for dam-
age caused by substances other than oil, namely the Hazardous and Noxious
Substances by Sea Convention 1996 (HNS), a treaty in respect of which condi-
tions for its entry into force still remain to be met at the moment of writing
these lines. Spain expressed the view of many coastal States in the sense that
rather than adopting treaty rules establishing the obligation to grant refuge,
priority should be given to the full universal implementation of the treaties

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Coastal and Flag States in Situations of Distress 347

above referred, which regulate the contracting by the ship owner of compul-
sory insurance. Against the existence of such guarantees it would be easier for
coastal States to grant refuge. Even though, the prerogative not to do so should
remain as a fall back position, as part of a sovereign right of any State to evalu-
ate risks in accordance with the circumstances of each case before deciding on
whether foreign ships should be admitted to its internal waters.3
The counteroffensive in support of treaty rules regulating the obligation
of coastal States to grant refuge was led by the CMI, the preeminent non-
governmental organization with observer status at IMO. Since 1897 the CMI
has sponsored initiatives by maritime lawyers and representatives of the mari-
time industry in the development of international private law in the field of
commercial navigation. The adoption of the most important treaties in this
regard has been preceded by the presentation of CMI drafts considered by con-
ferences convened by the Government of Belgium before IMO’s time (the so
called ‘Brussels conventions’) and by IMO after the Torrey Canyon incident in
1967. Following the adoption of the IMO Guidelines on places of refuge, CMI
reaffirmed its leading role as a consultative body for the IMO Legal Committee
by presenting for the consideration of this last one a draft treaty instrument
on places of refuge to be adopted either as an amendment to an existing IMO
treaty or as a new self standing one.4 Even if the Legal Committee bowed to the
pressure of coastal State interests and decided not to accept this proposal, its
main features are worth considering.
In contrast to the assertion in the IMO Guidelines that the granting of refuge
is a prerogative of the coastal State, the CMI submission affirms the existence
of a right, according to customary international law, for a vessel in distress to
be granted a place of refuge. The submission notes that this right “no longer
appears to be recognized by many States as an absolute right and has become
clouded.”5
Although no specific reason is mentioned by the CMI, it is plausible to sug-
gest that the progressive clouding of right to be granted refuge is the result of
the irruption of the environmental law in the field of maritime law and law
of the sea. Until the second half of the XXth century the right to seek and obtain
refuge had not been confronted with the sovereign rights of coastal States to
protect their coastal interests and natural living and non-living resources from
pollution up to 200 miles away from the coast. It was to ensure this protection

3 IMO document LEG 87/7/1.

4 In IMO document LEG 89/7 issued on 19.8.2004 the CMI reports on its deliberations on this
subject. The CMI draft treaty is submitted in document LEG 91/6 issued on 24 March 2006.
5 IMO document. 89/7.

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348 Blanco-Bazán

that coastal States felt entitled to restrict conditions to grant refuge, in particu-
lar to oil tankers.
Bearing in mind this new situation created by the need to reconcile the right
of commercial ships to obtain refuge and those of the costal State to deny it on
environmental considerations, the CMI draft proposed the following solutions:

• The right under customary international law for a ship to obtain refuge
should be incorporated into treaty law as a presumption.
• To rebut this presumption the coastal State should prove why under certain
circumstances it is reasonable to refuse access.
• A State granting refuge should be immune from prosecution, unless it could
be proved that it acted unreasonably.
• A State refusing refuge should be liable to compensate other States or third
parties in case it was unable to prove that the refusal was reasonable.

Even if the draft had been accepted in principle by the IMO Legal Committee,
lots of work would have been needed to further elaborate on the concept of
reasonability, or lack of it, in particular as a ground to exonerate the coastal
State granting refuge from liability unless claimants demonstrated unrea-
sonable behavior. Not only would it be extremely difficult to establish an
enforceable concept of State liability towards other States or interested parties
in other jurisdictions. Further difficulties would arise domestically: how could
a coastal State oppose an exemption from liability regulated in an international
treaty to claimants domiciled in its own territory? Claimants domiciled in the
State granting refuge could adduce that even if such granting was reasonable,
they should not be obliged to bear the consequences of that State’s magna-
nimity towards the ship owner or other neighbor states. Domestic claimants
around a place of refuge would have to be compensated for any pollution dam-
age not only by the ship owner but, if such compensation was not enough also
by their own State. How could this last one exculpate itself from such respon-
sibility on grounds that it had acted reasonably in acceding to grant refuge?
Of particular importance to assess the different interests at stake depending
on whether claimants are domiciled or not in a State granting refuge is a provi-
sion in the CMI draft requiring coastal States to designate place of refuge in
advance, although not necessarily to publicize them. The designation a priori
of places of refuge is political burning issue on account of the social conflicts
that such designation could provoke following the reaction of those residing or
working in the designated areas. The alternative to keep then ignorant about
designations done in secret only increases the admissibility of claims made

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Coastal and Flag States in Situations of Distress 349

by citizens on the basis that they did not know of, were never consulted, and
accordingly did not have the right to oppose to, the designation.
An evaluation of the failure to cross the line between the IMO guidelines
and the alternative to go further by means of adopting treaty law regulations
leads to conclusions familiar to any exercise involving the possibility of sur-
rendering State sovereignty through international treaties. States will be keen
to restrict sovereign rights by treaty only if they can afford to do so bearing
in mind the political implications involved. In the case of places of refuge
discussions at IMO showed that it would be very difficult for coastal States
to renounce to their prerogative to grant or not refuge without arising strong
domestic opposition.

The Obligation of Granting of Refuge as a Consequence of the

Right of Coastal States to Intervene beyond Their Territorial Sea

The reciprocal balance of flag and coastal State’s rights and obligations in con-
nection with the granting of access to places of refuge to vessels in distress
can only be properly understood against the changing patterns of a coastal
State entitlement heavily contested at first but finally incorporated into treaty
law during the second half of the past century, namely the coastal State’s right
to intervene beyond its territorial sea to counteract the polluting effects of a
maritime casualty.
Until the breaking of the Torrey Canyon off the coast of Brittany in 1967
traditional customary law was interpreted as preventing the coastal State from
interfering with the navigation of foreign ships taking place beyond its terri-
torial waters. This ‘hands off’ status meant that the coastal states’ rights and
obligations in situations involving a foreign ship in a distress situation beyond
territorial waters would be addressed in accordance to principles of jus gen-
tium publicum. Bearing in mind these principles, it was peacefully accepted
that coastal states were obliged in accordance to customary law to intervene
beyond their territory to save lives. However, what about the need to protect
the marine environment in cases where the ship in distress had the potential
of becoming a source of widespread pollution?
It is in this last regard that the Torrey Canyon incident became a ‘first’. It
radically demonstrated the shortcomings of well accepted principles of law in
the face of an entirely novel situation, both in its causation and its damaging
effects: the Torrey Canyon was the first man made environmental catastrophe
at sea and the damage would have to be measured not in terms of human lives,

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350 Blanco-Bazán

cargoes or the ship lost but by the devastating effect of the cargo released into
the sea. Being a ‘first’, no rules of consuetudinary law could be claimed as a jus-
tification for State intervention in the high seas other than the need to coun-
teract damage to coastal interests then conceived mainly as within a narrow
scope of artisanal fishing and tourist resources.
Coastal State’s powers to take measures against marine pollution beyond
the territorial sea are nowadays so widely accepted that many would find dif-
ficult to understand the hesitation of the British authorities to immediately
resort to action when the Torrey Canyon run aground on 18 March 1967. When
ten days later the wreck was bombed and the oil made to blaze, the initial
spill had progressed to become a mayor environmental catastrophe: nearly
100,000 tonnes of crude oil had been spilled into the sea around the South
Coast of England and the West Coast of France.
The fact that the intervening measures did not interfere with the territo-
rial jurisdiction of other States did not allay the possibility of legal struggles.
To start with, the delay in intervening had resulted in damage not only to the
South Coast of England but also the West Coast of France. The UK law could
only provide for a plausible explanation of the delay to intervene based upon
Admiralty Law: public authorities should only intervene in a subsidiary way,
namely after allowing some time for action by those representing the private
interests involved in the casualty, in particular the owner and salvor. In other
words, the urgency for preventing damage to the marine environment adjacent
to the coast was not straightforwardly recognized as a public law and order
issue taking immediate precedence over the deliberations of private parties on
how to best deal with their own interests.
However, even if the UK could not be accused of violating any rule of law by
delaying any intervention beyond its maritime boundaries, the fact that in the
end it was compelled to do so raised questions on whether more prompt action
could not have been taken in consultation with France. The rights and obliga-
tions related to coastal State intervention would also have to be balanced with
those of the flag State and the private parties involved in the incident, such
as the ship owner, master, salvors and insurers.
All these issues demonstrated that it was not enough to invoke a consuetu-
dinary right to self-defence (protection of the coastal State’s fishing and tour-
ist industry) to justify intervention beyond the territorial sea. Concrete and
detailed international rules would be needed and, as a result of deliberations
at IMCO (now IMO) initiated soon after the incident, it was finally decided
that these rules would have to be included in a multilateral public law treaty.
The caution and care invested in the consideration of the issues at stake
at the International Conference convened in 1969 by the then IMCO is reflected

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Coastal and Flag States in Situations of Distress 351

in the International Convention relating to the Intervention on the High Seas in

Cases of Oil Pollution Casualties, 1969 (the “Intervention Convention”). In this
pre UNCLOS treaty the exercise of the right of intervention by the coastal
State beyond its territorial seas is restricted to the need to prevent a grave and
imminent danger in face of a casualty which may be reasonably expected to
result in major harmful consequences.6 In the face of such an emergency, the
Convention imposes the obligation to consult with other states, in particular
the flag State, before the intervention takes place, unless ‘extreme urgency’7
compels to intervention without consultation of any kind. Intervening mea-
sures must be proportionate to actual or threatened damage, shall not go
beyond what is reasonable necessary and shall cease as soon as its end has
been achieved. Measures “shall not unnecessary interfere with the rights and
interests of the flag State, third States and of any persons, physical or corporate
concerned.”8 They should also be notified without delay to the States and all
known physical or corporate persons concerned, as well as to the Secretary-
General of IMO.9
Against the restrictive legal background regulated by the Intervention
Convention, the right to intervention included years later in UNCLOS article
221 seems to be more flexible. Rather than defining the right of intervention
as an exception to the rule of non-intervention, UNCLOS seems to acknowl-
edge the existence of such right in terms of both customary and conventional
international law. Certainly, the reference to conventional international law10
implies a recognition of the rules incorporated in the Intervention Convention.
However, what about customary law? Here it seems that unlike the Intervention
Convention, UNCLOS explicitly recognizes the right to protect coastline or
related interests and a marine environment extending well beyond the territo-
rial sea as enshrined in customary law. It then follows that coastal States may
intervene beyond their territorial sea irrespective of whether or not they are
party to the Intervention Convention or indeed, to UNCLOS:

• If they are party to the Intervention Convention they should apply the
mechanism of consultation and notification regulated by this treaty.
• If they are not party to the Intervention Convention but are party to UNCLOS,
they may not be restricted by the rules therein contained on consultation

6 Article I.1.
7 Article III, (d).
8 Article V.2.
9 Article III (f).
10 See UNCLOS, article 221, 1.

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352 Blanco-Bazán

and notification but should nevertheless notify and consult by operation of

UNCLOS article 198 (Notification of imminent or actual damage).
• States not party to UNCLOS or to the Intervention Convention could also
apply one or both of them in accordance to customary law, in this case
defined by reference to the rules contained in these two widely accepted
treaties.

The major difference between the Intervention Convention and UNCLOS 221
reflects the consequences of the incorporation into UNCLOS of the notion of
Exclusive Economic Zone (EZZ). While the Intervention Convention defines
the right to intervene beyond the territorial sea as a right of intervention
‘in the high seas’, UNCLOS article 221 defines the coastal State’s right to inter-
vene ‘beyond the territorial sea’ without any further distinction, thus including
not only the high seas but the EEZ as well.
The importance of this distinction is obvious. In the EEZ the hybrid status of
coexistence of sovereign rights over natural resources with a residual high sea
status otherwise, works in favour of a robust type of coastal State intervention:
up to 200 miles from the coastline the coastal State can intervene to protect
resources acknowledged to be under its sovereignty.
Bearing in mind the preceding considerations, it can be concluded that the
restrictive procedural scope regulated by the Intervention Convention can
be harmonized with the more ample one regulated in article 221 of UNCLOS
so as to optimize the exercise of the right of intervention by coastal States
beyond their territorial sea in cases of maritime casualties expected to cause
major harmful consequences. Can it also be concluded that the operation of
UNCLOS and the development of environmental maritime law has rendered
obsolete some procedural steps of notification and consultation regulated by
the Intervention Convention? After all, the rights of coastal States to inter-
vene is at present not restricted as it was at the times of the Torrey Canyon.
Why should now the coastal State be compelled to a seemingly cumbersome
procedure of evaluation and consultation? In response it can only be noted
how departure from the procedures imposed by the Intervention Convention
and loosely reproduced in UNCLOS lead to a major shortcoming in the case
of the Prestige. Even if the coastal States affected had been parties to both
treaties for many years, the fact is that they were still unprepared to con-
sult and help each other in accordance to the procedures prescribed in the
Intervention Convention and the obligations to consult and cooperated regu-
lated by UNCLOS article 198. Had a system of consultation been in place in
accordance with both treaties, the granting of refuge would have come as a

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Coastal and Flag States in Situations of Distress 353

relevant regional matter as soon as distress was notified, and the decision on
whether to grant or not refuge to the vessel in distress would not have been left
to the sole criteria of the Spanish authorities. Particularly striking in the case
of the Prestige seems to have been the lack of coordination between Spain and
Portugal. In a provokingly ironic way the Court in La Coruña notes the reac-
tion of ‘our friendly Portuguese neighbours’ who sent a warship to interdict
the entrance of the convoy towering the the Prestige in the Portuguese EEZ;
and France does not seem to have been particularly proactive in spite of the
lessons that should have been drawn following the Torrey Canyon, the Amoco
Cadiz, and the Erika. Under such circumstances the search for culprits amidst
seafarers and ship owners should not prevent coastal States from considering
their own shortcomings.
It is bearing in mind this background that the right to intervention by
coastal States beyond their territorial sea should be reappraised not solely as
an expression of coastal State sovereignty governed by its domestic law, but
also as conditioned by a craftily regulated set of rules contained in the two
universal treaties above referred. The need to consult and coordinate action
with neighbouring states is an essential constituent of this right, which within
wider environmental context established by UNCLOS should be exercised not
only bearing in mind the need to protect the natural resources of the interven-
ing State but also those of neighbouring States and the high seas. In fact, pre-
vention of marine pollution from vessels cannot be effectively implemented
unless protective measures extend beyond the conventional frontiers estab-
lished under the concept of ‘sea zones’.
Within this wide environmental context the right of intervention becomes
inevitably linked to the obligation to grant refuge. Certainly, this last one is
an obligation conditioned to the preeminent right of any coastal State to
decide on the features of its intervention bearing in mind primarily the need
to defend its coastal interests and maritime resources within its territorial sea
and its EEZ. However consideration should be given to a regional and global
lesser evil. Should the coastal State not be prepared to risk some environmen-
tal damage more likely to be contained in a place of refuge in order to avoid
greater damage to neighbouring countries and the wider marine environment?
Solidarity and universality, rather than the exclusive protection of domestic
interests should be at the core of any environmental set of regulations. In this
regard the IMO Guidelines explain that the availability of places of refuge is
normally the best method to prevent the breaking of a ship or, if the breaking
cannot be avoided, to reduce the damage to a semi enclosed area were clean
up operations can work more effectively.

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354 Blanco-Bazán

Conclusion

It is in against the patron of global environmental protection aimed at by the

Intervention Convention and enhanced in UNCLOS that coastal states’ duties
to provide refuge should be measured. The lack of support for an international
treaty regulating such duties does not imply that they can be ignored by means
of asserting denial of refuge as a discretionary decision to be taken without the
need of assessment, consultation and cooperation. Denial of refuge involves
a proactive evaluation of circumstances and moreover a search for workable
alternatives to prevent damage to the marine environment: the right to deny
refuge does not mean that the coastal State can simply wash its hands.
In other words, a coastal State cannot tell the ship ‘it’s your problem’ or ‘it’s
a problem you have created and therefore I have nothing to do with it’. Any
action by the coastal State designed to compel the ship to ‘go away’ without
an assessment of the environmental consequences and without providing
alternative assistance could be construed as either wilful intention or grave
negligence from the side of the coastal State in order to evade its obliga-
tions to protect a marine environment that cannot be conceived as restricted
to the boundaries of its territorial jurisdiction. Furthermore, the obligation
for the coastal States to help removing the situation of distress persists, even
in cases where, on account of paramount coastal interests, the coastal State is
unable to offer a place of refuge.
No treaty or domestic law can be properly enforced without bearing in
mind these obvious expressions of good faith at the core of any legal order,
be it national or international. Fairness, reasonability and equitable inter-
pretation of rights and obligations should always govern the actions of flag
coastal and port states. In his already quoted article published in 1983, Georg
Schwarzemberger noted the existence of an Ocean Model which would enable
the expansion of Jus Aequum to the high seas.11 Perhaps he was echoing the
impact produced by the adoption of UNCLOS as the first treaty regulating a
truly universal order. The utopia of a constitution valid for all states was dis-
carded shortly after the end of the end of WWII, but we have a universally
accepted Constitution of the Seas. Whenever confronted with the need to pre-
vent pollution amidst a situation of navigational distress, costal and flag States

11 See Georg Schwarzenberger, The conceptual apparatus of international law in The process
of International Law, ed. R. St. J MacDonald & D.M. Johnston (Leiden: Martinus Nijhoff,
1983), 691.

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Coastal and Flag States in Situations of Distress 355

should exercise the rights recognized by this Constitution bearing in mind

its most important provision: “Parties shall fulfil in good faith the obligations
assumed under this Convention and shall exercise the rights, jurisdiction and
freedoms recognized by this Convention in a manner which would not consti-
tute and abuse of right” (UNCLOS, article 300).

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 Chapter 21

Law of the Sea, Naval Blockades and Freedom of

Navigation in the Aftermath of Gaza Flotilla
Incident of 31 May 2010
Nilufer Oral

The United Nations Law of the Sea Convention (LOSC)1 when adopted in 1982
was heralded as the “constitution for the oceans.” The preamble with the words
“[p]rompted by the desire to settle, in a spirit of mutual understanding and
co-operation, all issues relating to the law of the sea . . .” conveyed its seemingly
far-reaching ambit of application (Emphasis added). The Convention further
expressed its direct relationship to the United Nations Charter stating,

Believing that the codification and progressive development of the law of

the sea achieved in this Convention will contribute to the strengthening
of peace, security, co-operation and friendly relations among all
nations . . . in accordance with the Purposes and Principles of the United
Nations as set forth in the Charter.

The Convention did not, however, expressly limit its application to time of
peace or indicate its status in time of war or armed conflict at sea. The only
hint is found in the last paragraph of the preamble affirming that, “matters not
regulated by this Convention continue to be governed by the principles of gen-
eral international law.” Despite the silence of the Convention, the general view
is that the law of armed conflicts at sea is implicitly excluded by the language
‘matters not regulated’ by the Convention, and would presumably continue to
be regulated by other sources of international law, such as the United Nations
Charter, the Geneva Conventions and their protocols as well as customary
rules of international law.2

1 United Nations Convention on the Law of the Sea, (Montego Bay), 10 Dec. 1982, 1833 UNTS 3
2 See, United Nations Convention on the Law of the Sea 1982: A Commentary 89, Vol. II, ed.
Satya Nandan & Shabtai Roseanne (NY: NU, 1993); Bernard H. Oxman, “The Regime of War-
ships Under the United Nations Convention on the Law of the Sea,” 24 Virginia Journal of
International Law (1983–1984): 811–863; Brian Wilson and James Kraska, “American Security
and Law of the Sea,” 40 Ocean Development & International Law (2009): 268–290, 277–278.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004283787_022

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Law of the Sea, Naval Blockades and Freedom of Navigation 357

The need for a clear understanding of when application of the law of the sea
applies, under customary international law and as codified in the 1982 LOSC is
especially vital for preservation of freedom of navigation in the high seas and
the long-standing customary international rule of the exclusive jurisdiction
of the flag State on the high seas, long-standing norms of international law,
codified in both the 1958 Geneva Convention on the High Seas3 and 1982
United Nations Convention on the Law of the Sea.4 Exceptions have been nar-
rowly enumerated in both instruments and not expanded upon by state prac-
tice. The right of freedom of navigation on the high seas without interference
by third states is a preemptory norm of international law and exceptions must
be well grounded in international law. For example, according to customary
international law high seas interdiction for enforcement of a naval blockade, a
method of inter-state warfare and an exercise of the right of self-defense under
article 51 of the Charter of the United Nations is permitted. Even though such
exception is not expressly enumerated as an exception to high seas freedoms
in the 1982 LOSC, naval blockades can be enforced against merchant vessels
under specific circumstances. However, as will be shown in this Chapter, state
practice has not expanded naval warfare methods, such a blockades, to be used
in non-interstate conflict or those involving non-state actors.
The current legal framework for naval warfare rests upon rules of customary
international law as reflected the San Remo Manual, a non-binding document
prepared by international law experts.5 The need for greater legal certainty
in clarifying the relations between the application of the rules of peace time
as reflected in the law of the sea and those of armed conflict was illustrated
on the 31 May 2010 when Israeli military forces interdicted six passenger ves-
sels carrying a total of 600 civilian activists and 10,000 tons of humanitarian
assistance to the Gaza Strip, which was under both a naval and land blockade
imposed by Israel.6 (Hereinafter “Gaza Flotilla incident”). The Israeli Defense
Force (IDF) interdicted the vessels with the use of force in the high seas of
the eastern Mediterranean Sea some 72 nautical miles from the nearest coast,
and 64 nautical miles from the blockade zone declared by Israel. All six vessels
were diverted to the Israeli port of Ashdod where six hundred passengers were

3 Geneva, 29 April 1958, 450 UNTS 12.

4 Montego Bay, 10 December 1982, 1833 UNTS 3.
5 The San Remo Manual on International Law Applicable to Armed Conflict at Sea (ICRC,
1994).
6 The naval blockade was declared in 2009 to prevent delivery of goods that could be used by
Hamas against Israel. See Notice to Mariners No. 1/2009. Available at http://asp.mot.gov.il/
en/shipping/notice2mariners/547-no12009.

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detained. Nine passengers lost their lives and many more other passengers
were injured.7 Israeli justified the military interception on the high seas and
use of force based on the customary international law of blockade. The Gaza
Flotilla incident raised many questions of international law and generated dif-
ferent views as to it lawfulness as reflected by two United Nations Reports8 and
writings of jurists on the issue.9
This Chapter will not examine the legality of the naval blockade imposed by
Israel or the treatment of the passengers after the IDF take-over under interna-
tional law. The Gaza Flotilla incident did, however, highlight gaps and uncer-
tainties in the existing international law framework regarding naval blockades
and their enforcement in conflicts in the high seas against non-military vessels
exercising freedom of navigation rights. Consequently, this creates a danger-
ous potential for the expanded use of naval blockades in conflicts that do not
clearly fall into the category of international armed conflict (IAC) or even non-

7 See following reports for factual details: Turkish National Commission of Inquiry, “Report
on the Israeli Attack on the Humanitarian Aid Convoy to Gaza on 31 May 2010 (Febru-
ary 2011) available at http://www.mfa.gov.tr/data/Turkish%20Report%20Final%20-%20
UN%20Copy.pdf; The Public Commission to Examine the Maritime Incident of 31 May 2010
(Turkel Commission report available atwww.turkel-committee.gov.il/; UN Doc. A /HRC/15/21
Human Rights Council Report of the international fact-finding mission to investigate vio-
lations of international law, including international humanitarian and human rights law,
resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance.
(27 Sept. 2010.) Secretary General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident
(September 2011), Available at http://www.un.org/News/dh/infocus/middle_east/Gaza_
Flotilla_Panel_Report.pdf; and
8 In response to the diplomatic crisis created by the incident UN Secretary General Ban
Ki-Moon established a United Nations Panel of Inquiry chaired by Sir Geoffrey Palmer.
Secretary General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident (September 2011),
Id. Parallel to the UN Panel of Inquiry the UN Human Rights Council conducted its own
fact-finding mission pursuant to UNGA resolution 14/1 of 2 June 2010 as presented in its final
report. Id. The two reports arrived at different conclusions concerning the lawfulness of the
naval blockade but agreed as to the unlawful enforcement by Israeli forces on the high seas.
9 For example, see Douglas Guilfoyle, “The Mavi Marmara Incident and Blockade in Armed
Conflict”, 81 British Yearbook of International Law (2011): 171–223; George Bisharat, Carey
James and Rose Mishaan, “Freedom Thwarted: Israel’s Illegal Attack on the Gaza Flotilla,
4 Berkeley Journal of Middle Eastern and Islamic Law (2011): 79–110; See Russell Buchan,
“The Palmer Report and the Legality of Israel’s Naval Blockade of Gaza,” 61 International and
Comparative Law Quarterly (2012): 264–273; James Kraska & Raul Pedroza, International
Maritime Security Law (Leiden: Martinus Nijhoff, 2013): 895–899; Peter Berkowitz, Israel and
the Struggle Over the International Laws of War (Stanford: Hoover Institution Press, 2012),
Regina Goff, “The Legality of Israel’s Blockade of Gaza”, 8 Regent Journal of International Law
(2011): 83.

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Law of the Sea, Naval Blockades and Freedom of Navigation 359

international armed conflict (NIAC), and threatens the peaceful uses of the sea
as stated in the 1982 LOSC.10
This chapter will examine the existing international legal framework for
armed conflicts at sea and the 1982 United Nations Law of the Sea Convention,
naval blockades the United Nations Charter, customary international law and
state practice, concluding that there is a need for States to re-examine the
existing rules of naval warfare, in particular naval blockades, as applied against
non-military vessels and civilians or non-state actors in relation to the law of
the sea as codified in the 1982 LOSC.

United Nations Law of the Sea Convention and Military

Activities at Sea

Despite the intentions of the negotiators of the 1982 LOSC to settle all ques-
tions related to the law of the sea, many questions continue to remain con-
troversial, including the relationship between the 1982 LOSC and military
activities at sea.11 As noted by Churchill and Lowe

[t]he United Nations conferences on the Law of the Sea consciously

avoided negotiation of the rules applicable to military operations on the
seas. Consequently, the extent to which rights and duties under the con-
ventions are modified or suspended in time of war is a controversial mat-
ter, compounded by the uncertainty of the Law of Treaties on this point.12

Another area of uncertainty, for example, is that states continue to differ on the
scope of freedoms of navigation for warships in the exclusive economic zone.13
Some take the position that the coastal State retains the competence to regu-
late military activities of foreign warships in their coastal zone14 and others

10 See Lt. Com. James Farrant, “The Gaza Flotilla Incident and the Modern Law of Blockade,”
66 Naval War College Review (2013): 81–98. Farrant was unable determine whether state
practice supports the application of traditional blockade to NIAC. Id., at 94.
11 See James Kraska, Maritime Power and the Law of the Sea (Oxford: Oxford University
Press 2012); Kraska & Pedroza, op. cit.
12 Robin R. Churchill & A. Vaughan Lowe, The Law of the Sea (Manchester: Juris Publications,
1999), 421.
13 See Guidelines for Navigation and Overflight in the Exclusive Economic Zone: A Commentary
(Tokyo: Oceans Policy Research Foundation, 2006).
14 For example, upon signing and ratification of the 1982 LOSC Brazil included the fol-
lowing declaration: “The Brazilian Government understands that the provisions of the

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adopt the contrary view that the freedoms of the high seas apply equally in the
exclusive economic zone with the sole condition of due regard for the rights of
the coastal State to explore and exploit its natural resources.15
The preservation of the freedoms of the high seas, one of the key crosscut-
ting issues of the negotiations remains as one of the underlying reasons for
this divergence of views. During the negotiations preservation of freedom of
navigation was of paramount importance for the maritime states, especially
the Super Powers of that time (i.e. US and USSR), and particularly for mili-
tary activities. The creation of a new transit passage for international straits
and the preservation of high seas navigation in the new EEZ were the direct
result of this concern.16 However, an area that remained less defined in the
LOSC concerned its relationship with the international law of naval warfare
and the application of the law of neutrality to merchant ships and other neu-
tral parties.17
Linkage to the Charter of the United Nations can be found in several provi-
sions of the LOSC. The mandate for “peaceful uses of the sea” as articulated in
article 301 of the LOSC requires States Parties when exercising their rights and
performing their duties under the Convention to refrain from

Convention do not authorize other States to carry out military exercises or manoeuvres,
in particular those involving the use of weapons or explosives, in the exclusive economic
zone without the consent of the coastal State.” See United Nations Convention on the Law
of the Sea, Declarations made upon signature, ratification, accession or succession or any
time thereafter, at http://www.un.org/depts/los/convention_agreements/convention_
declarations.htm#Brazil%20Upon%20signature.
15 Oxman, op. cit.; Horace B. Robertson, “The ‘New’ Law of the Sea and the Law of Armed
Conflict at Sea,” 3 New Port Papers (Newport: Naval War College, 1992).
16 David D. Caron, “The Great Straits Debate: The Conflict, Debate, and Compromise That
Shaped the Straits Articles of the 1982 United Nations Convention on the Law of the Sea,”
in Navigating Straits: Challenges for International Law, ed. David D. Caron & Nilufer Oral
(Leiden: Brill Nijhoff, 2014), 11; John Norton Moore, “The Regime of Straits and the Third
United Nations Conference on the Law of the Sea,” 74 American Journal of International
Law (1980): 77–121; Jonathan I. Charney, “Comment: The United States and the Law of the
Sea after UNCLOS III: The Impact of General International Law,” Law & Contemporary
Problems (Durham: School of Law/ Duke University, 1983): 37–54, 44–48; W.L. Schachte,
Jr., & J.P.A. Bernhardt, “International Straits and Navigational Freedoms,” 33 Virginia
Journal of International Law 503 (1993): 544–45.
17 Horace B. Robertson, op. cit.; Christopher Greenwood, “The Concept of War in Modern
International Law”, 36 International and Comparative Law Quarterly (1987): 283, 300.

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Law of the Sea, Naval Blockades and Freedom of Navigation 361

the threat or use of force against the territorial integrity or political inde-
pendence of any State, or in any other manner inconsistent with the prin-
ciples of international law embodied in the Charter of the United Nations.

This prohibition on the threat or use of force repeats verbatim the same pro-
hibition in article 2 (4) of the Charter of the United Nations. This prohibition
would presumably apply to interdiction of vessels on the high seas. Article 88
reinforces this by mandating that the high seas shall be reserved for peaceful
purposes.
The express provisions in the LOSC on warships are limited. These require
that warships: (1) comply with the laws and regulations of a coastal State during
passage through its territorial sea (art. 30); and (2) the flag State bears interna-
tional responsibility for any damage caused to the coastal State resulting from
non-compliance of a warship, or other governmental ships operated for non-
commercial purposes, with the laws and regulations of a coastal State during
passage through its territorial sea or with other provisions of the Convention
or other rules of international law (art. 31). Otherwise, according to article 95
warships have ‘complete immunity’ on the high seas and the Convention is
not to affect the immunities of warships (art. 32). Nonetheless, in exercising
their freedom of high seas navigation warships, presumably are to exercise due
regard for the interests of other States. (art. 87.2)
These provisions, however, do not clarify the applicable international law
for other activities of warships on the high seas. While arguably traditional
inter-state, that is international armed conflicts at sea subject to other rules
of international law can be readily defined as falling outside the scope of the
LOSC, less clear is ascertaining the applicable rules of international law in
non-interstate conflicts at sea that could be defined as NIAC or lower levels
of conflicts with non-state actors, in situations such as civil unrest, rebellions,
or acts of domestic or international terrorism, which do not fit neatly into the
traditional laws of naval warfare and neutrality, and often overlap with ‘secu-
rity’ issues.

Interdiction on the High Seas under International Law and

Security Concerns

Freedom of navigation and the exclusive jurisdiction of the flag State on

the high seas is one of the longest standing rules of international law since the
famed treatise of Hugo Grotius Mare Liberum was published in 1609, having
attained an almost sacred status especially for the maritime States. Protection

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362 oral

of high seas freedoms was one of the lynchpin issues during the nine-year nego-
tiations for the 1982 LOSC, especially for the United States and other maritime
powers. The provisions on the high seas in the 1982 LOSC are mutis mutandis
identical to those in the 1958 Geneva Convention on the high seas,18 which
codified customary international law. The exceptions to when a war ship may
board a foreign flagged vessel on the high seas are limited to those found in
Article 110 of the LOSC as follows:

– powers conferred by a treaty

– piracy
– slave trade
– unauthorized broadcasting
– ship lacking nationality.

Further, the right for any single state to seize a vessel on the high seas is only pro-
vided for pirate ships (or aircraft).19 In the cases of unauthorized broadcasting
and illicit traffic in narcotic drugs or psychotropic substances the Convention
simply authorizes a state to request the cooperation of other states in the sup-
pression of these activities and the right of visit as provided in article 110. The
exhaustive character of these listed acts can be clearly inferred from the lack
of any reference to “general principles of law” or “customary international law.”
This interpretation is consistent with the overall history of the negotiations
of the 1982 Convention and efforts to preserve freedom of navigation by the
Super Powers at that time.
However, one of the important exceptions to the right of undisturbed free-
dom of navigation that has not been expressly stated in the LOSC, according to
many authors, is that the Convention does not apply to naval warfare, which is
principally based on customary international law as reflected in the 1994 San
Remo Manual, a non-binding manual prepared by international law experts.20
While this exception may be evident in conflicts at sea that fall clearly within
the parameters of a military inter-state encounter at sea, less clear are ques-
tions involving security, terrorism and weapons of mass destruction.
Natalie Klein in her extensive analysis of maritime security and the law of
the sea notes the lack of a common understanding of the scope and meaning
of ‘security’, observing that the meaning of ‘security’ can range from traditional

18 Article 22.
19 Article 105.
20 The San Remo Manual on International Law Applicable to Armed Conflict at Sea (ICRC,
1994).

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Law of the Sea, Naval Blockades and Freedom of Navigation 363

military activities to the more modern concerns of environmental security.21

Activities that are recognized as threats to maritime security include piracy,
terrorism, international harm to the environment, human and drug trafficking,
weapons of mass destruction, and IUU fishing.22 Moreover, all these activities
are subject to the provisions of the LOSC. As will be discussed further on, there
is ample state practice treating the transport of weapons of mass destruction
on the high seas as an activity under the LOSC and not rules of armed con-
flict at sea. In fact, state practice, as reflected in relevant instruments discussed
below, evince an international consensus to preserve a broad right of freedom
of navigation on the high seas subject to the narrowly drawn exceptions in
article 110. Despite opportunities to expand upon the existing exceptions to
high seas freedoms the international community has consistently adopted a
conservative approach and not created new exceptions for security concerns
against acts or terror or the transport of weapons of mass destruction.23
Most notably, immediately following the terror attack against the United
States on 11 September 2001, the International Maritime Organization (IMO)
amended Chapter XI of the International Convention for the Safety of Life at
Sea (SOLAS) 1974 and adopted the Special Measures to Enhance Security, and
the International Ship and Port Facility Security Code (ISPS Code) which went
into effect 1 July 2004.24 The principal objective of the ISPS Code was to estab-
lish an international framework of cooperation to detect security threats to
ships and ports and take preventive measures against potential terror attacks.25
The ISPS Code was the first IMO instrument to introduce specific measures

21 Natalie Klein, Maritime Security and the Law of the Sea (Oxford, 2013), 9.
22 Klein, Id., at 10 (citing the UN Secretary General Oceans Report 2008).
23 According to Wolff Heintschel von Heinegg, however, international law would allow
for the high seas interdiction of vessels reasonably suspected of transporting weapons
of mass destruction and their delivery systems destined to transnational terrorism.
Wolff Heintschel von Heinegg, “Proliferation Security Initiative: Security vs. Freedom
of Navigation,” 81 International Law Study Series US Naval War College (2006): 55–76,
65. The author provides a detailed analysis of how UN Security Resolution 1540 could
provide the legal basis for high seas interdiction of vessels suspected of transporting
WMD to terror organizations, notwithstanding that an express provision to this effect
was dropped to obtain China’s support for the resolution. Id., at 69–70. See also, Wolff
Heintschel von Heinegg, “Security at Sea: Legal Restrains or Lack of Political Will?
Comments on the Keynote Address by Admiral Hoch,” in Legal Challenges in Maritime
Security, ed. Myron H. Nordquist (Leiden: Martinus Nijhoff, 2008), 133, 139.
24 The IMO Doc. MSC 78/7 Annex (Proposed Draft Amendment to SOLAS XI-2 Measures to
Enhance Maritime Security) <http://www.iaphworldports.org/new/MSC78-7Add.1.pdf>.
25 Article 1.2.1, ISPS Code, Part A.

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intended to detect and prevent the occurrence of a terror incident against a

ship or a port facility or at sea. With some eighty percent of the world’s trade
carried by sea, the security of shipping is of the utmost concern for interna-
tional trade and military security.
Another example of state practice in favor of maintaining freedom of navi-
gation and the primary jurisdiction of the flag State in the high seas even in
face of maritime security concerns is found in the 2005 Protocol to the 1988
Convention on the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation (SUA), which was adopted by the IMO following the 1985 terrorist
attack against the cruise ship Achille Lauro on the high seas and resulted in the
death of a US citizen. The Protocol includes a set of well-defined procedures
for boarding a ship in international waters suspected of engaging in terror-
ism. It is significant that the participating Parties at the diplomatic conference
were cautious to maintain the primary jurisdiction of the flag State in line with
codified and customary international law. The Protocol subjects the right to
board a vessel suspected of committing violation of the acts provided under
the Convention to the express consent of the flag State. It stands to reason that
if international consensus existed for expanding the right to interdict foreign
vessels in international waters, certainly the 2005 SUA Protocol, which deals
with the prevention of international terrorism, would have provided the legal
forum and opportunity to do so. Instead, the strong commitment of states to
maintain flag State jurisdiction over vessels on the high seas was clearly reaf-
firmed by the international community under the 2005 Protocol. This provides
further evidence of State practice in limiting the exceptions allowed to inter-
fere with the right of freedom of navigation on the high seas.

State Practice and Interdiction on the High Seas

Customary international law does not recognize a general right of visit and sei-
zure of vessels on the high seas26 and limits the situations when a warship may
visit or seize a foreign ship in international waters (high seas). The restricted
scope of the lawful grounds for seizing a vessel on the high seas was demon-
strated by the conduct of the United States during a high seas interdiction
against a North Korean merchant vessel on 10 December 2002. Following a
request from the United States for the interdiction of a North Korean merchant
vessel suspected of transporting weapons of mass destruction, two Spanish

26 Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press,
1999).

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Law of the Sea, Naval Blockades and Freedom of Navigation 365

naval ships intercepted and boarded the ship on the high seas some 600 miles
from the coast of Yemen. The legal justification provided by the US for the inter-
diction was that the ship was flagless, one of the exceptions in article 110 of the
LOSC.27 However, subsequently it was discovered that the ship was registered
to Cambodia. During the search of the vessel, fifteen Scud missiles, not listed in
the ship’s manifest, were discovered beneath a cargo of cement. Upon verify-
ing that Yemen had purchased the missiles, the United States Administration
decided to release the vessel and its cargo. The US found that, although the
lack of a flag gave legal grounds for the initial boarding of the vessel, there was
no ‘clear authority’ for seizing the missiles under international law. The US did
not assert any exception based on ‘security’ or ‘self’ defense. Rather the US
acknowledged that there was no restriction under the LOSC or other sources
of international law against the maritime transport of missiles.28
The right of ‘hot pursuit’ under article 111 of UNCLOS is another exception
that allows high seas diversion of a foreign flagged vessel on the high seas.29
Accordingly, when there is “. . . . good reason to believe that the ship has vio-
lated the laws and regulations of that State,” and must be

commenced when the foreign ship or one of its boats is within the inter-
nal waters or the territorial sea or the contiguous zone of the pursuing
State, and may only be continued outside the territorial sea or the con-
tiguous zone if the pursuit has not been interrupted.

In the M/V Saiga case the International Tribunal for the Law of the Sea had
opportunity to examine the extension of the right of hot pursuit of a for-
eign flagged state to the exclusive economic zone (EEZ), where for purposes
of navigation is subject to the regime of high seas freedom of navigation.
The case involved the arrest of an oil tanker in the EEZ of Guinea for alleged
violation of its laws. Notably, the Tribunal rejected Guinea’s argument for the
extension of the ‘hot pursuit’ exception to the EEZ and found that the arrest

27 Thom Shanker, “Threats and responses: arms smuggling; scud missiles found on ship of
North Korea,” NYT 11 Dec (2002); Ian Patrick Berry, “The right of visit, search and seizure
of foreign flagged vessels on the high seas pursuant to customary international law: a
defense of the Proliferation Security Initiative,” 33 Hofstra Law Review (2004): 299; Jin
Yuansu, “The Proliferation Security Initiative PSI and Interdiction at Sea: A Chinese
Perspective,” 43 Ocean Development & International Law (2012): 96–118.
28 Michael A. Becker, The Shifting Public Order of the Oceans: Freedom of Navigation and
the Interdiction of Ships at Sea, 131 Harvard International Law Journal (2005): 153.
29 Article 111 is adopted mutis mutandis from Article 23 of the 1958 Convention, with the
addition of the Exclusive Economic Zone.

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of the vessel had been in contravention of the Convention.30 Whereas, the

Tribunal could have adopted a more expansive interpretation of article 60(2),31
but chose to decide effectively on the side of freedom of navigation.32
The UN Security Council Presidential Statement of January 1992 had rec-
ognized the growing threat of the proliferation of weapons of mass destruc-
tion by terrorism as a threat to international peace and security, and further
underscored the need for member States of the United Nations to prevent
proliferation.33 The terror attack against the United States on 9 September 2001
(9/11) demonstrated the extent and severity of terrorism to national and inter-
national security. Nonetheless, despite the opportunity that 9/11 presented to
justify high seas interdictions of vessels suspected of engaging in acts of terror
or carrying weapons of mass destruction the US maintained its long-standing
position in preserving high seas freedom of navigation. This was demonstrated
in 2003 when the United States adopted the Proliferation Security Initiative
(PSI) and its associated principles34 in response to the threat of international
terrorism and weapons of mass destruction. The 2003 PSI, which provides
for the boarding of vessels suspected of carrying WMD is based on flag State
consent. The US concluded Ship Boarding Agreements with flag States who
grant the US the right to board and inspect their vessels while on the high seas35
if suspected of transporting weapons of mass destruction (WMD) to hostile
States or terrorists. These agreements clearly could fall within the provision of
“[e]xcept where acts of interference derive from powers conferred by treaty”

30 Article 60(2) provides that “The coastal State shall have exclusive jurisdiction over
such artificial islands, installations and structures, including jurisdiction with regard
to customs, fiscal, health, safety and immigration laws and regulations.” The Tribunal
interpreted this to restrict the enforcement of its customs laws only to artificial islands,
installations and structures in the EEZ. Id. Para 127.
31 The M/V “SAIGA” Case (Saint Vincent and the Grenadines v. Guinea), Prompt Release, (1997).
32 The Tribunal also rejected Guinea’s argument that the arrest was for the protection of the
“public interest” and in defense of “state of necessity”. The Tribunal found that a state of
necessity did not exist, explaining the “state of necessity” defense can be asserted only if
“the act was the only means of safeguarding an essential interest of the State against a
grave and imminent peril.” Id. Para.133 (emphasis added).
33 UN doc. SC s/23500, 31 January 1992.
34 Proliferation Security Initiative: Statement of Interdiction Principles, 24 Sept. 2003, avail-
able at http://www.state.gov/t/isn/c27726.htm.
35 Ship Boarding Agreements have been signed with the following flag States: Antigua and
Barbuda, Bahamas, Belize, Croatia, Cyprus, Liberia, Malta, Marshall Islands, Mongolia,
Panama, and St. Vincent and the Grenadines.

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Law of the Sea, Naval Blockades and Freedom of Navigation 367

found in both the 1958 Convention and UNCLOS, constituting customary

international law.36
In 2004, recognizing the grave threat posed by non-state actors engaged in
acts of terror and the proliferation of weapons of mass destruction the United
Nations Security Council acting under Chapter VII of the UN Charter adopted
resolution 1540. According to reports in order to obtain China’s support for
the resolution a provision that would have allowed high seas interdiction of
ships suspected of carrying WMD was removed.37

International Law of Armed Conflicts at Sea

The right of states to unilaterally declare war ended with the Charter of the
United Nations. Chapter VII of the United Nations Charter altered the old rules
of jus ad bellum by giving the Security Council, and not individual States, the
legal authority to determine the existence of any threat to the peace, breach of
the peace, or act of aggression and to decide what measures are to be taken to
maintain or restore international peace and security. Nonetheless, Article 51 of
the Charter recognized “the inherent right for States to exercise individual or
collective self-defence if an armed attack occurs and until the Security Council
has taken measures necessary to maintain international peace and security.38
(Emphasis added). In creating a margin of legal area for states to take mea-
sures in self-defense against an act of aggression from another state Article 51
does not exclude or diminish the role of the Security Council from taking sub-
sequent action. Indeed, Article 51 clearly imposes the obligation on States to
immediately report to the Security Council measures taken in self-defense.
Under Article 51 the Security Council retains its authority and responsibility
to maintain or restore international peace.39 The law of armed conflicts at sea

36 Article 110.
37 Wolff Heintschel von Heinegg, “Security at Sea: Legal Restrains or Lack of Political Will?
Comments on the Keynote Address by Admiral Hoch,” in Legal Challenges in Maritime
Security, ed. Myron H. Nordquist (Leiden: Martinus Nijhoff, 2008): 133, 140 (citing
S.D. Murphy, “UN Security Council Resolution on Nonproliferation of WMD”, 98 American
Journal of International Law, 606, 607).
38 See Christopher Michaelsen “Maritime Exclusion Zones in Times of Armed Conflict at
Sea: Legal Controversies Still Unresolved,” 8 Journal of Conflict & Security Law (2003):
363–390, 379–380.
39 Article 51 stipulates: Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to maintain

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and the use of naval blockades as measures of self-defense needs to be con-

strued within this legal context.
International humanitarian law, or jus in bellum is based on custom-
ary international law and the 1949 Geneva Conventions and their Additional
protocols. The rules for armed conflict at sea or naval warfare, however, are
principally derived from customary international law. The framework for naval
warfare as developed since the 20th Century is comprised of the 1907 Hague
Conventions,40 1913 Oxford Manual,41 1949 Geneva Conventions,42 1994 San
Remo Manual and the 1998 Helsinki Principles. There is no express treaty pro-
vision that makes the rules of warfare on land applicable at sea.43 Attempts
to codify naval warfare date back to the 1856 Paris Declaration Respecting
Maritime Law, which was followed by the International Peace Conferences at
the Hague in 1899 and 1907. The latter produced the 1909 London Declaration
followed by the 1913 Oxford Manual.44
The current international framework for naval warfare at sea is found prin-
cipally in the 1994 San Remo Manual, which was the outcome of a series of
expert meetings conducted between 1988–1994 aimed at developing an
instrument to both modernize the law of armed conflict at sea and clarify
the existing state of customary law, especially on controversial issues such as

international peace and security. Measures taken by Members in the exercise of this right
of self-defence shall be immediately reported to the Security Council and shall not in
any way affect the authority and responsibility of the Security Council under the pres-
ent Charter to take at any time such action as it deems necessary in order to maintain or
restore international peace and security.”
40 The 1907 Hague Conventions consist of thirteen Conventions of which seven applied to
naval warfare. According to Roach only the following have some continued relevancy:
Convention (No. VIII) Relative to the Laying of Automatic Submarine Contact Mines,
Oct. 18, 1907, 36 Stat. 2332, 1 Bevans 669; Convention [No. XI] Relative to Certain
Restrictions with Regard to the Exercise of the Right of Capture in Naval War, Oct.
18, 1907, 36 Stat. 2396, 1 Bevans 711; Convention [No. XIII] concerning the Rights and
Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 Stat. 2415, 1 Bevans 723. Ashley
Roach, “The Law of Naval Warfare at the Turn of Two Centuries,” 94 American Journal of
International Law (2000): 64, 65.
41 Manual of the Laws of Naval War, Oxford, 9 August 1913, available at http://www.icrc.org/
ihl/INTRO/265?OpenDocument.
42 Applicable specifically to naval warfare is the Second Geneva Convention for the ame-
lioration of the condition of the wounded, sick and shipwrecked members of the armed
forces at sea, 12 Aug. 1949, 75 UNTS 85.
43 Roach, op. cit., 69.
44 See Chris Greggs, “Legal Constraints on Maritime Operations Affecting Merchant Ship-
ping,” 19 Australia and New Zealand Maritime Law Journal (2005): 148–158.

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Law of the Sea, Naval Blockades and Freedom of Navigation 369

exclusionary zones, or blockades.45 As explained by Louise Doswald-Beck, one

of the authors of the San Remo Manual, “[t]he need for an updated articu-
lation of the law stem[med] from the fact that treaty law on the conduct of
hostilities at sea not only [was] fragmentary but also mostly date[d] back to
1907 . . .”46 Doswald-Beck further explained that the 1949 Geneva Conventions
had been updated in 1977 with the adoption of the Protocols I and II Additional
to the Geneva Conventions. The provisions related to naval operations only
concerned medical vessels and aircraft, and the Second Geneva Convention,
Part IV of the Protection of civilians against the effect of hostilities, applied
only to land operations. Furthermore, since 1977 many changes had taken
place especially in regard to the law of the sea, such as the adoption in 1982
of the LOSC and the creation of new maritime zones, which were of especial
importance for naval operations at sea. Furthermore, the existing framework
for armed conflicts at sea did not reflect environmental issues, which had also
acquired global importance since 1977. These and other concerns underscored
the need to review and update the existing international legal framework pro-
viding the impetus for the San Remo meetings.
The San Remo Manual, prepared by well-known experts in the field, was
not intended to be a legal instrument as at the time of its development the
prevalent view was that it was premature to negotiate and adopt a binding
legal treaty. When completed in 1994, while not a binding agreement, the
common view was that the provisions reflected customary international
law. Nonetheless, certain issues were omitted, such as state responsibility for
violations of the law of war and immunity and implementation of the law.
And while the issue of NIAC was not included in the Manual it was also not
expressly excluded to avoid the possible misuse of a legal gap and encour-
age the application of humanitarian rules to possible naval operations during
such conflicts.47 However, as pointed out by numerous authors, naval block-
ades are lawful measures only for international armed conflicts (IAC) at sea,

45 Drawing a distinction between exclusion zones or operational zones and blockades see
Wolff Heintschel von Heinegg, “The Protection of Navigation in Case of Armed Conflict,”
18 International Journal of Coastal and Marine Law (2003): 401–422, 416–17. For an in-
depth review of maritime exclusion zones, war zones and naval blockades see also, Chris-
topher Michaelsen, 8 Journal of Conflict & Security Law (2003): 363–390. See also, Ashley
Roach, “The law of naval warfare at the turn of two centuries”, 94 American Journal of
International Law (2000): 64–77.
46 Louise Doswald-Beck, “The San Remo Manual on International Law Applicable to Armed
Conflict at Sea,” 89 American Journal of International Law (1995): 192–208, 193.
47 Id., at 207.

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370 oral

state-to-state conflicts.48 The more controversial issue concerns the use of

naval blockade in non-interstate conflicts, which may or may not be classified
as non-international armed conflicts (NIAC), such as in the case of the conflict
between Israel and Hamas.
Doswald-Beck further points out that one of the key issues examined dur-
ing the preparation of the San Remo Manual concerned actions taken against
merchant vessels in time of conflict in the post-United Nations Charter period.
The UN Charter makes no express reference to ‘war’ and the resort to force
is limited to individual or collective self-defense (art. 51), or as provided in
the Charter,49 meaning by a decision of the United Nations Security Council
under Chapter VII. The era of unilateral declarations of war and the conduct of
international conflicts was to be replaced with decisions taken by the United
Nations Security Council, excluding self-defense and collective defense.

Naval Blockades

Naval blockades are methods of warfare50 and have been used as a military
tactic throughout history, and have continued to be used in a number of con-
temporary international armed conflicts.51 Egypt’s blockades against Israeli
shipping in the late 1940s and early 1950s,52 during the Suez Canal Crisis of

48 See, David E. Graham, ”Defining Non-International Armed Conflict: A Historically Dif-

ficult Task,” 88 International Legal Studies Series US Naval War College 43 (2012). The 2001
San Remo Manual relating to Non-International Armed Conflicts as revised in 2006 does
not make any reference to the use of naval blockades in NIAC situations. See Manual
with Commentary at http://www.iihl.org/iihl/Documents/The%20Manual%20on%20
the%20Law%20of%20NIAC.pdf.
49 Doswald-Beck, op. cit., 196.
50 In Part IV under “Methods and Means of Warfare at Sea” and section II, the San Remo
Manual lists naval blockades as a method of warfare. Other terms that have historically
been used are “military exclusion zones,” “war zones,” “maritime operational zones,”
“maritime security zones” and others. See Christopher Michaelsen, “Maritime Exclusion
Zones in Times of Armed Conflict at Sea: Legal Controversies Still Unresolved,” 8 Journal
of Conflict & Security (2003) 363–390, 365. This chapter will employ the terms ‘naval
blockade’ as used in the 1992 San Remo Manual.
51 According to Wolff Heintschel von Heinegg, the majority of post-World War II conflicts
have been internal or mixed armed conflicts. In 1998–1999 of 108 major armed conflicts 92
were of a non-international character. Wolff Heintschel von Heinegg, “The Protection of
Navigation in Case of Armed Conflict,” 18 International Journal of Coastal and Marine Law
(2003): 401–422, 401 (fn 1).
52 See, e.g., Eitan Barak, “On the Power of Tacit Understandings: Israel, Egypt and Freedom
of Passage Through the Suez Canal”, 58 Middle East Journal (2004): 444, 445; Leo Gross,

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Law of the Sea, Naval Blockades and Freedom of Navigation 371

195653 and in 1967 just before the Six-Day War.54 In 1967, Egypt closed the
“Gulf of Aqaba and the Straits of Tiran to Israeli shipping. Cuban Missile Crisis
in October 1962, which was called a ‘quarantine’ and not ‘blockade’.55 More
recent blockades include UN Security Council approved ‘military intercept’
operations against Iraq (1999)56 and against Yugoslavia (1991–1992).57
State practice including UN authorized blockades, have contributed to
establish the current principles governing naval blockade. Past efforts
to develop rules governing naval blockades were abandoned during World
Wars I and II. Since then there has been no codification by governments of an
agreed set of rules on naval blockades in international armed conflicts. The
San Remo Manual is the only non-governmental developed set of principles
on international armed conflicts at sea.
The applicable laws of naval warfare, as reflected in the San Remo Manual
distinguish between ‘belligerents’ (enemy) and ‘neutrals’. Notably, there is no
mention of non-state actors. And as one author observes that while there is
overall agreement that the law of naval warfare applies to international armed
conflicts at sea less clear is the law of maritime neutrality, which is described
as “probably the most unsettled parts of public international law.”58 The author
explains the different positions adopted by States where in some cases States

“Passage Through the Suez Canal of Israel-Bound Cargo and Israel Ships”, 51 American
Journal of International Law 530 (1957).
53 John King Gamble & Nicole Lee Dirling, “Mass Media Coverage of International Law:
(Benign) Neglect?, Distortion?”, 18 Florida Journal of International Law 211 (2006): 232;
The Suez War of 1956, Jewish Virtual Library, Aug. 12, 1988, http://www.jewishvirtual
library.org/jsource/History/Suez_War.html (Aug. 12, 1988).
54 William C. Bradford, “The Duty to Defend Them: A Natural Law Justification for the Bush
Doctrine of Preventive War”, 79 Notre Dame Law Review 1365 (2004): 1407.
55 Stephen C. Neff, “Towards a Law of Unarmed Conflict: A Proposal for a New International
Law of Hostility”, 28 Cornell International Law Journal 1 (1995): 24; see also Fielding, op.
cit., 1195–1196 (discussing the significance of the Cuban Quarantine in the development
of maritime interdiction).
56 U.N. Security Council Resolution 665 (1990); Lois E. Fielding, “Maritime Interception:
Centerpiece of Economic Sanctions in the New World Order”, 53 Louisiana Law Review
(1993): 1191, 1194; 1214.
57 U.N. Security Council Resolutions 713 (1991) and 757 (1992); Richard Zeigler, “Ubi Sumus?
Quo Vadimus?: Charting the Course of Maritime Interception Operations”, 43 Naval Law
Review 1 (1996): 15, 31–33; William Drozdiak, “NATO Agrees to Impose Blockade of Serbia”,
Washington Post, Nov. 19 (1992), at A31.
58 Wolff Heintschel von Heinegg, “The Protection of Navigation in Case of Armed Conflict,”
18 International Journal of Coastal and Marine Law (2003): 401–422, 404; Elizabeth
Chadwick, “Back To The Future: Three Civil Wars And The Law Of Neutrality,” 1 Journal of
Armed Conflict 1 (1996).

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372 oral

take the view that the law of maritime neutrality applies only if is there has
been a formal state of war, others take the view that there must be a for-
mal declaration of neutrality by the state concerned and others, such as the
Germans, take the position that the law of maritime neutrality applies only in
international armed conflicts if the conflict is of ‘significant scope’.
Customary international law as reflected in the San Remo Manual, recog-
nizes the belligerent right of visit, search, capture and diversion of enemy ves-
sels on the high seas without flag State consent and for the exercise of the right
of self-defense.59 As stated earlier the right of self-defense is the only excep-
tion to the prohibition against the use of force by States under the Charter
of the United Nations and customary international law. Article 51 of the UN
Charter expressly limits the right of States to exercise self-defense to situa-
tions of armed attack. The controversial doctrine of ‘anticipatory self-defense’
has been limited support in international law, including its use to justify the
interdiction of a foreign ship on the high seas has extremely limited support in
international law. In the case of Nicaragua v. United States of America (Merits),
the International Court of Justice rejected the claims of the United States to
exercise the right of self-defence under Article 51 of the Charter and customary
international law.60 The Court clearly stated that Article 51 could be invoked
only against an armed attack and that

whether the response to an attack is lawful depends on the observance of

the criteria of the necessity and the proportionality of the measures
taken in self-defense. Even if there were a right of anticipatory self-
defense, the widely accepted criteria that must be fulfilled are those that
were stated by Daniel Webster in the 1837 Caroline incident, which
involved the interception of a merchant vessel on the high seas by the
British, where necessity of that self-defence (sic) is instant, overwhelm-
ing, and leaving no choice of means, and no moment for deliberation”
and furthermore, that the act justified by the necessity of self-defence
(sic), must be limited by that necessity, and kept clearly within it.61

59 Efthymios Papastavridis, Interception of Vessel on the High Seas: Contemporary Challenges

to the Legal Order of the Ocean (Oxford: Hart, 2013).
60 Case Concerning Military and Paramilitary Activities in and Against Nicaraguan
(Nicaragua v. United States of America), (Merits), ICJ Reports (1986).
61 Letter from Daniel Webster, Secretary of State, to Lord Ashburton, British Plenipoteniary,
6 August 1842, in John B. Moore, Digest of International Law 412 (1906).

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Law of the Sea, Naval Blockades and Freedom of Navigation 373

In short, acts of self-defense must be based on necessity and be proportionate

to the threat.
Over the years there have been several examples of interception of mer-
chant vessels on the high seas justified by enforcement of naval blockades as
measures of self-defense. The Iran-Iraq war (1980–88), the Falkland Islands/
Islas Malvinas (1982) war between Argentina and Great Britain, the 1990
Gulf War, the UN Security Council approved ‘military intercept’ operations
against the former Yugoslavia (1991–1992)62 and against Iraq (1999),63 the 2001
Operation Enduring Freedom, the 2003 Iraq invasion (Operation Iraqi Freedom)
are most recent examples.64 In each of these cases, with the exception of the
former Yugoslavia, the conflict was of an international character. The use of
naval blockades to intercept merchant vessels in the high seas as a measure
of self-defense for internal conflicts, as was done extensively by France during
the Algerian uprising, is, however, legally dubious. As Papastavridis, observes
“[t]he problem, in general, lies in the fact that there is no conventional regula-
tion of internal armed conflict at sea, and the customary law, if existent, is very
obscure . . .”.65
The use of naval blockades as a measure for internal conflicts or against
non-state actors has extremely limited support. In a detailed examination
of naval blockades Guilfoyle notes the US Civil War (1861–1865) as the only
example of an internationally condoned use of a naval blockade to inter-
dict neutral merchant vessels in a civil war.66 During the Algerian rebellion
the international community protested France interdiction of nearly 5,000
of vessels on the high seas. Guilfoyle also cites the more recent example of
the Sri Lanka civil conflict (1983–2009) which involved maritime operations.
In 1984 Sri Lanka implemented “a special naval surveillance zone within Sri
Lankan waters . . . with the . . . purpose of preventing illegal entry and exit . . .”.
According to Guilfoyle, “most maritime naval interception appear to have
taken place within Sri Lankan waters (TS and Contiguous Zones) and justifi-
able under normal policing powers available within 24 nm and thus do not

62 U.N. Security Council Resolution 665 (1990); Lois E. Fielding, “Maritime Interception:
Centerpiece of Economic Sanctions in the New World Order”, 53 Louisiana Law Review
(1993): 1191, 1194; 1214.
63 U.N. Security Council Resolutions 713 (1991) and 757 (1992); Richard Zeigler, op. cit.,
William Drozdiak, op. cit.
64 Papastavridis, op. cit., 84–94.
65 Id., at 86.
66 Guilfoyle also cites the Spanish Civil War as an example of where there was no interna-
tional acceptance of the use of naval blockade against neutral shipping. See Guilfoyle,
op. cit.

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