International Laws Of The Sea – Part 3

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.

Four Geneva Conventions on the Law of the Sea of 1958

1. Four Conventions

   1. Convention on the Territorial Sea and the Contiguous Zone
      This Convention recognised formally for the first time in international law
      the right of coastal states to claim a territorial sea off their coastlines. Articles 1 and 2 of the Convention read as follows:
      Article 1
      1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.
      2. This sovereignty is exercised subject to the provisions of these articles and to other rules of international law.

      Article 2
      The sovereignty of a coastal State extends to the air space over the territorial sea as well as to its bed and subsoil.
      However, the states attending UNCLOS I failed to agree on the breadth of the territorial sea. The problem that had dogged the 1930 Hague Codification Conference persisted. It was not possible to bridge the gap between the states insisting on a three-mile limit and those claiming six miles or 12 miles, or even up to 200 miles of territorial sea.
      After prescribing the method of drawing a normal baseline for measuring the breadth of the territorial sea, the Convention did recognise the special character of certain coastlines and prescribed a special rule for drawing baselines of such coastlines. By doing so the Convention seems to have followed the decision of the ICJ in the Anglo-Norwegian Fisheries Case (ICJ Reports, 1951) on the issue of straight baselines. In other words, the Convention acknowledged that baselines do not always have to follow the natural coastline, but exceptionally where the coastline is deeply indented, or if there is a fringe of islands along it and very close to it, the method of straight baselines can be used, joining appropriate points.
      The Convention also codified the customary international law principle of the right of innocent passage for the vessels of other states in the territorial sea of a coastal state. Article 14 of the Convention reads as follows:

      Article 14

      1. Subject to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.
      2. Passage means navigation through the territorial sea for the purpose either of traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from internal waters.
      3. Passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress.
      4. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with these articles and with other rules of international law.
      5. Passage of foreign fishing vessels shall not be considered innocent if they do not observe such laws and regulations as the coastal State may make and publish in order to prevent these vessels from fishing in the territorial sea.
      6. Submarines are required to navigate on the surface and to show their flag.
         Another important feature of this Convention was that it recognized not only the right of a coastal state to exercise certain controls over a contiguous zone beyond the territorial sea, but also the breadth of this zone. According to Article 24(2) of the Convention, the maximum breadth of the contiguous zone was 12 miles from the baseline from which the breadth of the territorial sea is measured. It should be noted that the idea of a contiguous zone had been rejected by the 1930 Hague Codification Conference, but by the time UNCLOS I was concluded states were prepared to accept the concept.

      The Convention entered into force on 10 September 1964, but was largely superseded by the 1982 Convention on the Law of the Sea.

   2. Convention on the High Seas
      This Convention codified some of the most important, centuries-old principles of the law of the sea, including the freedoms of the seas enjoyed by states for a long time. Hence, most of the provisions of this Convention were regarded as generally declaratory of established principles of customary international law. Indeed, this was the most widely ratified Convention of all the four adopted by UNCLOS I.
      Article 2 of the Convention declared the freedoms of the seas and the manner in which they were to be exercised:
      Article 2
      The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty.
      Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law.
      It comprises, inter alia, both for coastal and non-coastal States:
      1. Freedom of navigation;
      2. Freedom of fishing;
      3. Freedom to lay submarine cables and pipelines;
      4. Freedom to fly over the high seas.

      These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other states in their exercise of the freedom of the high seas.

      The right to enjoy the freedoms of the seas was not limited to coastal states. Article 3 of the Convention extended this right to land-locked states and incorporated the principle of freedom of transit in the following manner:

      Article 3

      1. In order to enjoy the freedom of the seas on equal terms with coastal States, States having no sea-coast should have free access to the sea. To this end States situated between the sea and a State having no sea-coast shall by common agreement with the latter, and in conformity with existing international conventions, accord:
         1. To the State having no sea-coast, on a basis of reciprocity, free transit through their territory; and
         2. To ships flying the flag of that State treatment equal to that accorded to their own ships, or to the ships of any other States, as regards access to seaports and the use of such ports.

      2. States situated between the sea and a State having no sea-coast shall

         settle, by mutual agreement with the latter, and taking into account the rights of the coastal State or State of transit and the special conditions of the State having no sea-coast, all matters relating to freedom of transit and equal treatment in ports, in case such States are not already parties to existing international conventions.
         The Convention outlined other rights and duties of states in the high seas.
         It represented the most comprehensive set of provisions concerning the activities of states in the high seas. It entered into force on 30 September 1962 and was largely superseded by the 1982 Convention on the Law of the Sea.

   3. Convention on Fishing and Conservation of the Living Resources of the
      High Seas
      This Convention was designed to regulate the fishing activities of states in the high seas and to outline measures in order to conserve the living resources of the seas. The Preamble to the Convention provides the rationale for such measures.
      It stated that:
      “the development of modern techniques for the exploitation of the living resources of the sea, increasing man’s ability to meet the need of the world’s expanding population for food, has exposed some of these resources to the danger of being over-exploited.”
      Accordingly:
      “the nature of the problems involved in the conservation of the living resources of the high seas is such that there is a clear necessity that they be solved, whenever possible, on the basis of international co-operation through the concerted action of all the States concerned.”
      Article 1 of the Convention defined the rights of states with regard to fishing in the high seas in the following words:
      Article 1
      1. All States have the right for their nationals to engage in fishing on the high seas, subject
         1. to their treaty obligations,
         2. to the interests and rights of coastal States as provided for in this Convention,
         3. to the provisions contained in the following Articles concerning conservation of the living resources of the high seas.
      2. All States have the duty to adopt, or to cooperate with other States in adopting, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.

      Article 6 of the Convention acknowledged the special interest of coastal states in the conservation of fish stocks in the high seas areas adjacent to their territorial sea. It read as follows:

      Article 6

      1. A coastal State has a special interest in the maintenance of the productivity of the living resources in any area of the high seas adjacent to its territorial sea.
      2. A coastal State is entitled to take part on an equal footing in any system of research and regulation for purposes of conservation of the living resources of the high seas in that area, even though its nationals do not carry on fishing there.
      3. A State whose nationals are engaged in fishing in any area of the high seas adjacent to the territorial sea of a State shall, at the request of that coastal State, enter into negotiations with a view to prescribing by agreement the measures necessary for the conservation of the living resources of the high seas in that area.
      4. A State whose nationals are engaged in fishing in any area of the high seas adjacent to the territorial sea of a coastal State shall not enforce conservation measures in that area which are opposed to those which have been adopted by the coastal State, but may enter into negotiations with the coastal State with a view to prescribing by agreement the measures necessary for the conservation of the living resources of the high seas in that area.
      5. If the States concerned do not reach agreement with respect to conservation measures within twelve months, any of the parties may initiate the procedure contemplated by Article 9.
         The Convention sought to recommend soft measures for the conservation of the living resources of the high seas and to settle potential disputes between states with regard to this activity rather than impose strict obligation on states. (Soft measures are those which are not strictly obligatory but are highly desirable. The terms ‘soft’ or ‘soft law’ in international law imply that the law in question is still in the making. In other words, soft law is that law which has not quite become part of ‘hard’ law, i.e. treaty law, and is still based on the resolutions of international organisations such as the UN General Assembly which are only recommendatory in nature.)
         This Convention attracted the fewest ratifications of the four 1958 Geneva Conventions. It entered into force on 20 March 1966 and, like the other 1958 Conventions, was largely superseded by the 1982 Convention on the Law of the Sea.
   4. Convention on the Continental Shelf
      Following the Truman Proclamation of 1945 claiming rights over the natural resources of the continental shelf off the coasts of the USA, and various other similar and even more ambitious claims by other states, it had become imperative to conclude an international treaty on the continental shelf. By the time UNCLOS I was held, the idea of the continental shelf was still a controversial concept.
      Hence, this Convention could be characterised as the most innovative of the four 1958 Geneva Conventions. It defined the continental shelf and established a legal regime for the exploitation of the natural resources located in the shelf. It established sovereign rights of coastal states over the continental shelf area in relation to the exploration and exploitation of natural resources.
      Article 1 of the Convention defined the continental shelf as follows:
      Article 1
      For the purpose of these articles, the term ‘continental shelf’ is used as referring
      1. to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas;
      2. to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

      This open-ended definition allowed coastal states rights to a depth of 200 metres, but beyond this it depended crucially on whether or not states had the technology available to explore and exploit the resources in the seabed. Therefore, under the Convention, the outward limit of the continental shelf did not appear to be a distance limit, once the coastal state developed or acquired the required technical ability.

      Articles 2 and 3 define the nature of the rights of coastal states in their continental shelf and the legal status of this maritime zone.

      Another equally crucial provision of this Convention related to the delimitation of the continental shelf between opposite and adjacent states. Article 6 provides the formula for this as follows:
      Article 2

      1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.
      2. The rights referred to in paragraph 1 of this article are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express consent of the coastal State.
      3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.
      4. The natural resources referred to in these articles consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

      Article 3

      The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters as high seas, or that of the airspace above those waters.

      Article 6

      1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
      2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
      3. In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the principles set out in paragraphs 1 and 2 of this article should be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed permanent identifiable points on the land.
         The Continental Shelf Convention entered into force on 10 June 1964. Like the other three Geneva Conventions of 1958, it was largely superseded by the 1982 Convention on the Law of the Sea.

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   This article is written by our Principal Associate, Chakaravarthi