International Laws Of The Sea – Part 2

Pursuant to the earlier topic of Introduction to Maritime Law in Malaysia, published on 22 February 2021, in the coming series the basis and elements of International Laws of The Sea, will be explored.

First UN Conference on the Law of the Sea (UNCLOS I)

1. Aftermath of the Second World War

   The conduct of the belligerent powers during the Second World War demonstrated the need for a more orderly system of using the seas and oceans for various purposes. During the war, the rights of neutrals were largely disregarded by the belligerent powers and many other rules of the law of the sea were violated because of the desperate urgency on both sides to utilise every means of achieving victory. Because the war was of a global character, violations of the rules of the law of the sea also took place in different parts of the world, affecting many more states than had been the case in previous wars.
   When the UN was established many nations began to express a need to conclude comprehensive international instruments designed, inter alia, to safeguard their legitimate interests and to extend national claims seaward to include mineral resources off their coasts, to protect fish stocks around their coastlines and to have the means to enforce pollution controls around their coastal area.
   Furthermore, certain states had begun to apply wartime technological advances to peacetime uses of the sea, enabling among other things the exploitation of the resources of the seabed. With post-war shortages in oil, among other things, there was a trend towards coastal states claiming more and more maritime areas contiguous to their coasts. The Truman Declaration of 1945 is one such example.

2. Truman Declaration

   In 1945 the US president, Harry S. Truman, made a unilateral claim asserting his nation’s control to cover all the natural resources of its continental shelf, hitherto part of the high seas belonging to all nations. The Truman Proclamation on the Continental Shelf stated:
   “The Government of the United States regards the natural resources of the continental shelf beneath the high seas but contiguous to the coasts of the United States, subject to its jurisdiction and control.”
   The justification for this claim was to protect and conserve the resources of the continental shelf, regarded as an extension of the land mass. The Proclamation did not define any outward limits. Nor did it define legal limits to the shelf rights. President Truman issued another proclamation, the Fisheries Conservation Proclamation, which sought to assert US interests in extending the jurisdictional basis seaward to conserve the fisheries contiguous to its coasts.
   Surprisingly, these new claims by the USA evoked no official protest. They heralded a new jurisdictional march towards the seas and the launch of a new enclosure movement at the international level.

3. Practice of the Latin American states

   Rather than opposing US claims and defending the freedoms of the seas and oceans, other nations were quick to emulate the USA and went even further to claim sovereignty over the waters above the shelf area. In the period between 1946 and 1950, Argentina, Chile, Peru and Ecuador all made extended claims of their sovereign rights to a limit of 200 nautical miles. Their reasons varied. Chile was keen to protect its whaling industry from the increasing operations of foreign factory ships off its coasts. Peru and Ecuador wished to protect their tuna fisheries from growing US fleets. These countries used the Truman Proclamation as a precedent.
   A few of these countries, notably Chile, have persisted with their jurisdiction claims over living resources beyond the 200-nautical mile limit, thus presenting continuing problems in terms of the consistent application of the accepted 200-nautical mile exclusive economic zone (EEZ) regime under the 1982 Convention on the Law of the Sea.

4. Evolution of the notion of a 12-nautical mile territorial sea

   The extensive claims of the Latin American states posed new threats to the freedoms of the seas. Many nations began to make 12-nautical mile territorial sea claims. The foundations of the three-mile limit rule were shaken in 1951 by the decision of the International Court of Justice (ICJ) in the Anglo-Norwegian Fisheries Case (ICJ Reports, 1951). This landmark ruling helped the collapse of the concept of the three-mile limit as one of the prevailing principles of the international law of the sea.
   Thus, for a variety of reasons, the immediate aftermath of the Second World War saw a big rise in claims to larger areas of the seas, adding to the confusion that already existed with regard to various rules of customary international law relating to, inter alia, the limits of the territorial sea and other rights and duties of states in the seas.
   These chaotic peacetime claims after the wartime chaos meant that a serious international effort was needed to address the problems surrounding the law of the sea. Consequently, the First UN Conference on the Law of the Sea was convened in Geneva in 1958 with a view to adopting comprehensive rules on the law of the sea, resulting in the adoption of four Conventions on the Law of the Sea in 1958.

5. First UN Conference on the Law of the Sea

   The scope of the issues before the First UN Conference on the Law of the Sea (UNCLOS I) in 1958 was much wider than those covered at the Hague Conference in 1930. There was now an International Law Commission (ILC) whose purpose was to promote ‘the progressive development of international law and its codification’, and one of the tasks it had undertaken in the early years of its establishment as a subsidiary body of the UN General Assembly was to prepare 73 draft articles on the law of the sea for discussion in four separate committees. Composed of members with recognised competence in international law, the ILC had spent seven years preparing the draft articles, circulating them to states and reviewing them in light of comments received. Therefore, by the time UNCLOS I got underway the legal texts were already available, albeit in a skeleton form, and could be debated and voted on with relative ease.

   More states participated in UNCLOS I than at the Hague Codification Conference of 1930, and the representation was global. Many of the newly independent and developing states, such as Mexico, India and Sri Lanka, exerted a substantial influence. The Conference ended by adopting four historic Conventions on the Law of the Sea. They were adopted by a solid majority of the 86 states involved.

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This article is written by our Principal Associate, Chakaravarthi