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The Oxford Handbook of the Law of the Sea

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1 Historical Development of the Law of the Sea

Università degli Studi di Milano

  • Published: 02 June 2016
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This chapter highlights, in the historic development of the law of the sea, the roots of the law as it currently stands and the questions still open today. It considers the early phases of the evolution of the law of the sea up to the end of the nineteenth century followed by, in more detail, developments that took place in the twentieth century up until the Third United Nations Conference on the Law of the Sea. This fundamental event in the history of the law of the sea in the twentieth century is the basis of the international law of the sea of today, and is dealt with in subsequent chapters of this Handbook.

1 Introduction

The law of the sea is a branch of international law as old as international law itself. It emerges from the fact that States exercise sovereignty over territory and the conduct of activities taking place on or in the sea. Its historical development has been driven by political, economic, security, and, in more recent times, scientific and environmental interests. The evolution of technology and science plays a significant part. So, for instance, the law concerning fisheries has been influenced by the discovery of fish conservation techniques (salting and later freezing), and the law concerning the coastal State’s rights on the seabed adjacent to its coasts has been influenced by progress in seabed drilling technology. The discovery of polymetallic nodules and of hydrothermal vents on the deep seabed has been at the root of the development of international law rules for areas and activities hitherto unregulated.

These interests and developments have given rise to competing claims to the freedom of the seas and to the exercise of exclusive (sovereign or jurisdictional) rights by States. The tension between, and the accommodation of, these competing claims is a recurrent theme of the historical development of the law of the sea. Writings by scholars have played an important part in this development, especially in early times, when most scholarly works were in fact briefs in favour of the interests of a State.

Up to the end of the nineteenth century, the international law of the sea was mainly customary in origin, to be ascertained on the basis of what States did and said, and basically from States’ claims to exercise exclusive rights on portions of the sea and the reactions of other States to such claims. Later, other forms of international practice began to shape the evolution of the law. Collective endeavours by States to codify the international law of the sea spanned a half century of efforts, from the Hague conference of 1930 to the Third United Nations Conference on the Law of the Sea (UNCLOS III), and concluded in 1982 with the adoption of the United Nations Convention on the Law of the Sea (LOSC), presently in force for 166 States, while numerous treaties were concluded on specific matters (especially fishing, and later the protection of the environment). Moreover, international courts and tribunals made important contributions to the clarification and the progress of the law on various issues. Writings of individual scholars tried to adopt a scientific perspective independent of State interests, although influenced by their own political views, legal traditions, and cultural perspectives. The collective work by scholars became important in anticipation of, and in parallel with, the codification effort of States.

The aim of the present chapter is not to summarize in the small space allotted the history of the international law of the sea. Excellent work has been done by many scholars, to which reference should be made. 1 The perspective adopted is to highlight, in the historic development of the law of the sea, the roots of the law as it now stands and of the questions still open today. The early phases of the evolution of the law of the sea up to the end of the nineteenth century will be considered, followed by, in more detail, developments taking place within the twentieth century. This historical survey will, however, stop at the UNCLOS III. This fundamental event in the history of the law of the sea in the twentieth century is the basis of the international law of the sea of today, and is dealt with in subsequent chapters of this Handbook .

2 The Main Steps of the Evolution of the Law of the Sea between 1493 and the End of the Nineteenth Century

A convenient point of departure to trace the evolution of the law of the sea, in light of the tension between claims to sovereignty and to freedom, are two connected episodes in the aftermath of Columbus’ first voyage in 1492. With the bull Inter Caetera of 14 May 1493, Pope Alexander VI donated to Spain all territories, discovered or to be discovered, west of an imaginary line drawn on the Atlantic Ocean from pole to pole at a distance of 100 leagues west of Cape Verde and the Azores, and to Portugal all such territories east of that line. A year later, on 7 June 1494, the two States concluded, at Tordesillas, a treaty repeating the terms of the 1493 donation, although shifting the line westward, to 370 leagues from Cape Verde and the Azores. While the Papal bull and the 1494 Treaty refer to territories, the separating line is drawn on the ocean, so that this may be seen as an early and most ambitious claim to sovereignty over the sea.

The Spanish and Portuguese claims (as well as similar, although more modest claims by Denmark) were not generally accepted and, in particular, were rejected by England and by the Dutch Republic. Of significance are the instructions given by Queen Elizabeth I in 1602 to envoys sent to meet in Bremen with Danish representatives. 2 The English envoys were to reject Danish claims of ‘property’ of the seas and, referring to English and Venetian practice, to stipulate that although ‘property’ of the sea ‘at some small distance from the coast maie yield some Oversight and Jurisdiction’, such oversight and jurisdiction did not include prohibition of fishing and much less passage of ships and merchandise, as such prohibition was excluded by the Law of Nations. We can see in this statement a very early (and possibly the first) formulation of the idea of the freedom of the seas, and of the existence of a jurisdictional right over a narrow band of waters adjacent to the coast, in which, however, passage and even fishing may not be prohibited to foreign vessels. These instructions thus contain also an early statement of the notions of the territorial sea and of innocent passage. The idea of freedom of fishing in coastal waters was not to last as England required foreign fishing vessels to obtain a licence (proclamations of King James I of 6 May 1609 and of King Charles I of 10 May 1636), even though the enforcement of these proclamations proved difficult.

The seventeenth century was the century of the ‘battle of the books’. The booklet anonymously published in 1609 by the Dutch jurist Huig de Groot (Hugo Grotius), Mare Liberum (in fact a chapter of a treatise entitled De Jure Praedae , never published by Grotius, and whose manuscript was discovered only in 1865), gave expression to the basic concept that the sea must be free because, by its nature, it is not susceptible of occupation. The book was occasioned by the defence of the Dutch East India Company, which had seized the Portuguese vessel Catarina in the strait of Singapore, against Portugal claiming sovereignty on that part of the seas. Mare Liberum acquired great fame, and the idea of the freedom of the seas, especially as far as navigation was concerned, found followers and opponents in books by scholars of many countries, including England, Scotland, Portugal, Venice, Genoa, and the Netherlands.

Among opponents one must recall the Englishman John Selden, who published in 1635 a treatise on the Closed Sea ( Mare Clausum, seu de dominio maris libri duo ), and the Scotsman William Wellwood, who published in 1613 an Abridgment of All Sea-Lawes , followed in 1615 by a treatise in Latin on the Domain of the Sea ( De Dominio Maris , etc). Wellwood’s Abridgment was the only book by his opponents to which Grotius wrote a reply, the unpublished manuscript of which was found in 1865 together with De Jure Praedae. The basic idea of the opponents of the freedom of the sea was not a defence of the Papal donation. In fact, the interests they were defending were mostly those of powers other than Portugal and Spain. Their idea was that the seas, similarly to land, could be subject to occupation and control by a State and that in fact, some States (as Selden argued for England), already in fact exercised such power as regards navigation and fishing in certain areas of the sea.

Grotius was not an absolute doctrinaire. He conceded that his main thesis did not apply to small enclosures of sea, where exclusive fishing rights could be claimed, and that the discussion in his book dealt with the vast ocean and not with bays, straits, and the part of the sea that can be seen from the shore. While he maintained that fishing was in principle to be as free as navigation, he conceded that there might be a difference between navigation and fishing, because in a sense ( quodadmodum ), it could be held that fishes may be exhausted. Consequently, while navigation could not in any case be forbidden, this was not completely ruled out for fishing. Moreover, in his treatise on ‘The Law of War and Peace’ ( De Jure Belli ac Pacis , published in 1625), Grotius made more explicit some of the above points, and clearly held that occupation of small parts of the seas, such as in bays and straits, was possible for the coastal State through the presence of military fleets and by exercising coercion from the shore in the same way as on land.

In the eighteenth and nineteenth centuries the accepted regime of the sea was that described by Grotius, namely that of freedom, with the exception of a narrow band of waters adjacent to the coast. It was another Dutch author, Cornelius van Bynkershoeck, who although starting from premises close to those of the adversaries of the freedom of the seas, proposed a rational basis for this regime. In his De Dominio Maris Dissertatio , published in 1702, he admitted in principle that the seas could be subject of occupation, but stated that in the present ‘no sea is possessed by anyone’. 3 He argued that coastal States’ dominion of areas of the seas close to the coast depended on the exercise of sovereignty over the land and that its extension ended where the power of man’s weapons ends: ‘The control of the land [over the sea] extends as far as cannon will carry, as that is as far as we seem to have both command and possession.’ 4 So the ‘cannon shot rule’ was proclaimed.

The cannon shot rule was relied upon in the practice of the eighteenth century and approved in scholarly works including in the authoritative treatise on the ‘Law of Nations’ by Emmerich de Vattel. 5 Yet the cannon shot rule, notwithstanding its logical basis, had the drawback of being uncertain and subject to change in response to changes in weapon technology. Moreover, was the rule to be applied when real artillery was present on the land, or a consequence of the mere possibility of such presence? In a book written in Italian and published in 1782, the Neapolitan illuminist Ferdinando Galiani proposed a fixed measure of 3 miles, as this was the maximum limit artillery as known at the time could reach. 6

A fixed limit for the belt of coastal waters on which the sovereignty of the coastal State was recognized was adopted in State practice in the nineteenth and early twentieth centuries. Although the 3-mile limit was the most frequently adopted (in particular by maritime powers as Great Britain, the United States, and France), other States adopted a different fixed limit ranging from 4 (Demark, Norway, and Sweden) to 6 (Spain, Portugal, Italy, and others) to 12 miles (Russia and later the Soviet Union, Venezuela, and Guatemala). The basic idea of the freedom of the sea—which coincided with Asian practice followed for centuries 7 —corresponded to the interests of the great maritime powers of the time, principally Britain, but also France, the Netherlands, and the United States, which were keen to ensure unimpeded movement of their mercantile and military vessels for the building of empires and for the expansion of trade from far away territories. The recognition of innocent passage of foreign vessels in the territorial sea (already contained in the above mentioned 1602 instructions by Queen Elizabeth I) was consistent with the main objective of ensuring free movement of vessels.

Towards the end of the nineteenth century, a limited exception to the freedom of the high seas was recognized in order to fight smuggling. The British Hovering Act of 1736, last renewed in 1853, prescribed criminal penalties for smuggling activities offshore, even when conducted beyond a maritime league. Although the Act was repealed in 1876, signalling the British conviction that the coastal State’s powers could not extend beyond the three-nautical-mile limit (nm) of the territorial sea, other States, in particular the United States, 8 had followed the British Hovering Act, so that it could be argued that a customary rule had emerged providing certain functional powers of the coastal State beyond the limits of the territorial sea, concerning, in particular, the repression of smuggling (the ‘contiguous zone’). The so-called ‘Liquor treaties’ aimed at enforcing United States prohibition laws, concluded between the United States and Britain as well as other States between 1924 and 1930, 9 in which these States authorized the United States to board and search vessels flying their flags beyond the 3 nm limit of the United States’ territorial sea to a distance of one hour sailing by the vessel suspected of endeavouring to commit the offence, may be seen as implicitly recognizing such an emerging rule. The very fact that they were concluded may, however, be an argument against this view.

The precise limits of this new zone were not clearly defined. This depended in part on the still controversial question of the maximum breadth of the territorial sea. In fact, the ‘Liquor treaties’ concluded with States supporting the 3 nm limit contained a clause declaring the intention of the contracting parties to uphold the principle that the ‘proper limits of territorial waters’ were 3 nm from the shore, while those concluded with States supporting a broader limit stated that the contracting parties retained ‘their rights and claims’. 10

3 The Attempts at Codification before World War II

At the beginning of the twentieth century, the law of the sea had attained a certain degree of stability. It was based on a few customary rules, providing for the recognition of two distinct maritime zones: the territorial sea and the high seas. Within the territorial sea, a narrow band of sea adjacent to the coast, coastal States exercised sovereignty, with some restrictions, consisting mainly in the obligation to recognize a right of innocent passage of foreign vessels. On the high seas, the principle was that of freedom of all States, exercised through vessels flying their flag. Certain functional rights beyond the limits of the territorial sea were nonetheless recognized to coastal States. These were the right of hot pursuit on the high seas and enforcement rights concerning, especially, customs matters within a narrow zone contiguous to the territorial sea.

After World War I, the changes in world power structures, and the beginnings of a multilateral institutionalized approach to international law and relations embraced by the League of Nations, were reflected in the need to introduce precision in the existing customary rules on the law of the sea, and to solve the main question on which there was a clear difference of opinion between States, that of the breadth of the territorial sea.

So the idea emerged of codifying the international rules on the law of the sea, or at least those dealing with certain aspects of the matter. Particularly important were the attempts made in the scholarly circles of the Harvard Research on International Law and of the Institut de Droit International and the more official one made in the framework of the League of Nations and culminating in the 1930 Hague Conference on the Codification of International Law. 11

None of these attempts had the ambition to cover the whole of the law of the sea as we now conceive it. The Harvard Research produced two drafts, concerning the territorial sea (1929) and piracy (1932). 12 The Institut de Droit International produced, in 1928, a resolution on the territorial sea and a resolution on the regime of sea-going vessels and their crews in foreign ports in time of peace. 13 Within the framework of the International Law Association (ILA), the Chilean jurist Alejandro Alvarez presented, in 1924, a pioneering proposal concerning the territorial sea of groups of islands, which may be seen as the first manifestation of the concept of archipelagic waters. 14 This proposal, although unsuccessful in the ILA, found some echo in the 1928 Resolution of the Institut. 15 The work under the aegis of the League of Nations began with studies on four law of the sea subjects, namely, territorial waters, the status of government ships, the suppression of piracy, and rules on the exploitation of the products of the sea. However, only territorial waters were discussed at the 1930 Hague Conference.

The unresolved problem of the breadth of the territorial sea was recognized in the Harvard Research and in the Institut’s work. The drafts they produced endorsed the 3 nm limit, but acknowledged that 3 miles was just the breadth preferred by a majority of States and that other States strongly opposed it. Disagreement on the breadth of the territorial sea was the cause of the lack of success of the Hague Conference. The Conference worked on the basis of 28 ‘bases for discussion’ (draft articles with commentaries based on the replies to a questionnaire by a number of States). 16 Base for discussion No 3 stated that the ‘breadth of the territorial waters under the sovereignty of the coastal State is three nautical miles’. 17 Yet the ‘Observations’ accompanying the text state that while some States regarded ‘the above formula as an accurate and sufficient statement of existing international law’, others supported strongly ‘the claim of sovereign rights over more than three miles’—a claim ‘admitted by some and categorically rejected by other States’. 18 A ‘Basis of Discussion’, although noting divergences in views, accepted the idea that groups of islands not separated by more than double the territorial sea width from each other could have a territorial sea measured from the outermost islands of the group, while the waters ‘included within the group’ would be territorial waters. 19

The Conference could not adopt a draft convention. It only adopted a recommendation containing, in an annex, a draft of 13 articles on the legal status of the territorial sea, as all the other provisions discussed were linked to the question of its breadth. In addition to the above-mentioned Resolution, the Conference adopted recommendations on inland waters and on the protection of fisheries. It furthermore recommended to the League that preparatory work for a new conference on the breadth of the territorial sea should be pursued and a conference convened when opportune.

The three attempts at codification were aimed at producing drafts for possible conventions, but the time was not ripe for reaching this objective. The modesty of the results of the Hague Conference notwithstanding, these three attempts in the post-World War I decades have provided the basis of further codification work pursued later in more favourable circumstances. Scholarly work conducted on the basis of these attempts, especially Gilbert Gidel’s monumental work on ‘Public International Law of the Sea’ 20 and the involvement of Gidel and of the League of Nations Rapporteur on the territorial sea, the Dutch Professor JPA François, in work for the codification of the law of the sea conducted after World War II, emphasizes the connection of the apparently unsuccessful attempt under the aegis of the League with the much more successful codification work under the aegis of the United Nations.

The Hague Conference and the work conducted for its preparation (as well as the work of the Harvard Research and of the Institut) identified questions and indicated possible solutions that form part and parcel of today’s international law of the sea. The most important of these comprise: the exercise of sovereignty in the territorial sea; the baseline for the determination of the breadth of the territorial sea including consideration of the presence of bays and islands; straits; the difference between inland and territorial waters; innocent passage of foreign vessels (including military ones) through the territorial sea; criminal and civil jurisdiction on vessels passing through the territorial sea and in port; and the right of hot pursuit from the territorial waters into the high seas. The materials collected, in particular the responses to the questionnaires submitted to States by the Committee of Experts of the League of Nations, as well as the debates at the Hague Conference, are an invaluable trove of materials on the views of States in that time. They show that while the generally accepted basis of the international law of the sea remained that expressed in the few simple rules of customary international law mentioned above, the development of maritime activities in the early twentieth century had led to the formation of more detailed rules, or required that States agree on such formation.

The Hague Conference also showed that States were aware of the main dilemma of all ‘codification’ work, namely, to use the contemporary terminology based on the UN Charter, the difference between ‘codification’ in the strict sense of the term and ‘progressive development’. In the terminology of the League, in discussions on codification reference was made to the differences between mere ‘registration’ of existing rules and ‘innovation’ or ‘adaptation to contemporary conditions of international life’. The League of Nations Resolution of 1927 recommended that codification ‘should not confine itself to the mere registration of the existing rules, but should aim at adapting them as far as possible to contemporary conditions of international life’. 21

4 The Claims to Expand the Coastal State’s Jurisdiction after World War II

Already in the 1930s, 1930a number of States recognized that sovereignty over the territorial sea was not sufficient to ensure the proper conservation of fisheries in the areas adjacent to it. There was nonetheless widespread reluctance to entrust the subject to unilateral decision making by the coastal State. As Gidel remarked, ‘the establishment of rules on fisheries applicable beyond the territorial sea to nationals and foreigners must not be left to be fixed autonomously by the coastal State’ as, undoubtedly, ‘extremist’ and ‘arbitrary’ measures would result. 22 It was equally clear that contiguous zone rights could not apply to fisheries. 23

The two Proclamations adopted by United States President Truman on 28 September 1945 (Truman Proclamations) marked a turning point towards the acceptance of coastal States’ claims to exclusive rights beyond the limit of the territorial sea. They concerned respectively the ‘Natural Resources of the Subsoil and the Seabed of the Continental Shelf’ and ‘the Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas’. 24

The Continental Shelf Proclamation is more radical than the Fisheries Proclamation. It was precipitated by the increased importance of oil resources, underscored by the necessities of World War II and by the development of exploration and exploitation technology. It was a claim that the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the United States ‘appertain’ to it under its jurisdiction and control. It went beyond what had hitherto been accepted in international law, with the exception of the immediate precedent of the 1942 Treaty between Great Britain and Venezuela Relating to the Submarine Areas of the Gulf of Paria. 25 In this treaty each of the two States recognized the ‘rights of sovereignty or control’ of the other over an area delimited by an agreed line and extending beyond the 3 nm limit of the territorial sea of the two States.

The Truman Proclamation on fisheries, although trying to meet the ‘pressing need’ for conservation of fisheries resources in high seas waters contiguous to the coasts of the United States, remained much closer to traditional international law. The claim to exclusivity was limited to regulation and control. It did not apply to the resources as such. Moreover, it was put forward only in circumstances where it did not clash with other States’ interests and for areas in which fisheries had been conducted by United States fishermen alone. Outside these areas, fisheries would have to be regulated through agreements between the United States and other States engaged in fishing therein.

Both Proclamations underline the ‘character of high seas’ of, respectively, the waters above the continental shelf and the areas in which the conservation zones were established and state that ‘the right of free and unimpeded navigation’ was ‘in no way affected’.

Seen from Latin America, the two proclamations were welcome as an opening to the extension of the coastal States’ control over resources beyond the limits of the territorial sea. It soon appeared, however, that the different regimes set out for the—primarily—mineral resources of the continental shelf and for the living resources of the waters adjacent to the coasts were tailored to the needs of the United States, a country with a sizable continental shelf and important fisheries interests off the coasts of other (especially Latin American) States.

Latin American States endowed with continental shelves, such as Argentina and Mexico, as well as some States in other areas of the world, were quick in following the United States in proclaiming sovereign rights on their continental shelves. They also proclaimed similar rights in the waters above the continental shelf. This was the notion of the ‘epicontinental sea’. South American States with coasts on the Pacific had no extended continental shelves as the seabed adjacent to their coasts dropped abruptly towards the abyssal plains. They felt the injustice of the lack of the opportunity to exploit mineral resources and considered that they needed compensation. 26 Whaling by foreign vessels in the waters adjacent to their territorial seas was one of their main concerns. So, in 1947, Chile and Peru, invoking the Truman Proclamations and the Mexican and Argentinian proclamations, adopted enactments proclaiming their sovereignty and jurisdiction over the seabed as well as in the superjacent waters up to a limit of 200 nm from the coast. The right of free navigation (specified in the Chilean proclamation to be ‘on the high seas’) was not to be affected. On 18 August 1952, Chile and Peru, together with Ecuador, adopted at Santiago de Chile, a Declaration (Santiago Declaration) 27 which, after stating that the former extensions of the territorial sea and of the contiguous zone were inadequate for the purpose of the conservation, development and exploitation of the natural resources of the maritime zones adjacent to their coasts, proclaimed ‘as a norm of their international maritime policy that they each possess exclusive sovereignty and jurisdiction over the sea along the coasts of their respective countries to a minimum distance of 200 nautical miles from these coasts’. The Declaration specified that such sovereignty and jurisdiction included also the soil and subsoil corresponding to the 200 nm zone and that it was ‘without prejudice to the necessary limitations to the exercise of sovereignty and jurisdiction established under international law to allow innocent and inoffensive passage through the area indicated for ships of all nations’.

The Declaration is formulated as a proclamation directed by the three participating parties to the rest of the world, and not as a treaty. This notwithstanding, it was registered as a treaty with the United Nations in 1976. 28

The terminology and the very concepts utilized in the Santiago Declaration and in the proclamations of Latin American States are tentative and variable. They cannot be read with the precise meaning that the international law of the sea now gives them. The basic outlook adopted is that the rights claimed corresponded to those claimed by the United States for mineral resources of the continental shelf. This emerges clearly from the difference in the terminology (reproduced above) used in the Chilean and Peruvian Proclamations and in the Santiago Declaration to refer to the navigational and other rights of all States in the 200 nm zone, and to the clarifications given by representatives of the signatory countries as to the meaning of the terms ‘sovereignty’ and ‘sovereign rights’ as relating to exclusive functional rights for certain purposes.

When adopting their proclamations and the Santiago Declaration, Chile, Peru, and Ecuador were aware that their claims did not correspond to the international law of their time. The purpose was to start a process that, in the wishes of the three States, would eventually lead to the formation of new customary law. The strong protests in 1948 by the United Kingdom and the United States against the Chilean and Peruvian Proclamations, and later, against the Santiago Declaration, indicated that the main maritime powers of the time considered the claims as going beyond what was permitted by international law.

The 1950s saw another development towards the expansion of coastal States’ rights. It consisted in the claims put forward in 1955 by the Philippines and in 1957 by Indonesia to draw straight lines joining the outermost islands of the archipelagos and considering the waters within such lines as internal waters. These were the seminal claims to the institution of archipelagic waters.

The claim set out in the Truman Proclamation on the continental shelf was to have a very quick impact on the evolution of the law. The more ambitious claims of the Latin American countries, as well as the archipelagic claims of the Philippines and Indonesia, took more time. Yet, about a quarter of a century after the Santiago Declaration they reached their purpose with the general acceptance of the notions of the exclusive economic zone and of archipelagic waters.

5 Codification in the Early Phase of the United Nations: The Geneva Conventions on the Law of the Sea

After World War II the United Nations assumed, under Article 13 of the Charter, the task of the progressive development and codification of international law, continuing, in a more institutionalized manner, the attempts made by the League of Nations. The International Law Commission (ILC), the body of experts entrusted with this task within the United Nations, identified, since the beginning of its work in 1949, the regime of the high seas and of the territorial sea among the topics ripe for codification, and started work on the subject in 1950. Continuity with the work conducted before World War II was stressed by the fact that the Rapporteur on the law of the sea of the Hague Conference of 1930, Professor François, was selected as Special Rapporteur. Up to the end of the Commission’s work in 1956, the ILC, and the United Nations General Assembly (UNGA) that closely followed its work, proceeded through drafts concerning different aspects of the law of the sea. Only in the final report submitted to the General Assembly in 1956 were all provisions systematically ordered as one body of draft articles covering the whole of the law of the sea.

This final report was to be the main basis for the First United Nations Conference on the Law of the Sea (UNCLOS I), held in Geneva from 24 February to 27 April 1958 and convened by UNGA Resolution 1105(XI) of 21 February 1957. Attended by 86 States, the Conference followed rules of procedure similar to those of the UN General Assembly, so that, although provisions could be adopted in the Committees by simple majority, a two-thirds majority was required for adoption in Plenary. This procedural rule made it impossible to agree on the breadth of the territorial sea. While a 12 nm breadth could probably have secured approval in the competent Committee, it was clear that it could not do so in Plenary. Thus the question was left unresolved. However, the fact that one of the conventions adopted provided that the external limit of the contiguous zone could not exceed 12 nm from the baseline indicates that no breadth broader than 12 nm was acceptable for the great majority of participant States.

The UN General Assembly considered this key unresolved question, together with that of fishing limits, as worthy of further consideration, and made these the main items on the agenda of the Second United Nations Conference on the Law of the Sea (Geneva, 16 March–26 April 1960, UNCLOS II). This conference failed to achieve its objective. Among the various proposals, ranging from 3 to 200 nm maximum limits, a proposal for a 6 mile breadth of the territorial sea plus a 6 mile fishery zone adjoining it was accepted in the Committee of the Whole but failed to obtain the necessary two-thirds majority in Plenary.

UNCLOS I did not succeed in keeping the provisions on the law of the sea in one instrument. The unity of the law of the sea, reached at the final stages of the ILC’s work, was lost. On 29 April 1958, as recorded in the Final Act, 29 UNCLOS I opened for signature four conventions and an optional protocol.

The adoption of four conventions and a protocol in lieu of one all-encompassing convention was conceived as a device to attract the acceptance of at least some of the Conventions by a broad number of States, thus avoiding radical reservations or the decision by certain States not to accept the all-encompassing convention because of disagreement concerning one or more of its main component parts. The fact that the CFCLR and the OPSD have attracted a number of ratifications and accessions substantially lower than the other conventions indicates that they were not acceptable to States that otherwise had no difficulty with the other conventions. Significant absences in the groups of States having ratified the TSC and the CSC indicate specific difficulties, for instance, as regards innocent passage through straits or the regime of the continental shelf.

The TSC sets out in detailed provisions the main rules on the territorial sea and the contiguous zone. Its rules consider, in particular: baselines, bays, delimitation between States whose coasts are adjacent or face each other, innocent passage, and the contiguous zone. The most controversial provisions were those of Article 16. Strong disagreements, having their roots in the Arab-Israeli conflict, were raised in respect of paragraph 4, which provided that innocent passage cannot be suspended in straits used for international navigation not only in straits connecting one part of the high seas to another part of the high seas, but also in straits connecting the high seas to the territorial sea of a foreign State, thus including the strait of Tiran. Second, a number of States were dissatisfied with the fact that Article 16 made innocent passage applicable to all ships without distinction as regards warships. Amendments to introduce such distinction in Article 16 did not reach the necessary majority. Such majority could have been reached had the States wishing to require the coastal State’s consent agreed to vote together with the States favouring prior notification.

The CHS defines the high seas as comprising all parts of the sea not included in the territorial sea and internal waters. It deals especially with: the freedoms of the high seas, the right of a State to have ships flying its flag under conditions fixed by it, stating the controversial requirement of the existence of a ‘genuine link’ and the rights and obligations of the flag State, piracy, the right of visit, hot pursuit and the laying of submarine cables and pipelines. It also contains two pioneering provisions on pollution by the discharge of oil and radioactive wastes.

The CFCLR sets out principles and mechanisms for the rational management of fisheries in the high seas. It insists on cooperation between States engaged in the same fisheries, recognizes the special interest of the coastal State for fisheries in the high seas adjacent to its territorial sea, and provides for compulsory settlement of disputes concerning all the key rules. At the time of its adoption, the CFCLR was very controversial, as demonstrated by the low number of ratifications and accessions. For States keen on exclusive fishery rights beyond the territorial sea, a regime for fisheries on the high seas beyond the external limit of the territorial sea was not satisfactory. Moreover, most States at the time were not ready to accept the central role recognized by this Convention to compulsory settlement of disputes.

The CSC sets out rules on the notion, limits, and regime of the continental shelf. The basic concept of the sovereign rights of the coastal State as regards to resources of an area of the seabed beyond the external limit of the territorial sea had emerged in State practice only since 1945. It has been rightly said 30 that the CSC ‘crystallizes’ the result of a relatively quick process of formation of a customary rule emerging from practice just about a decade old (in particular the Truman Proclamation and the Treaty on the Gulf of Paria). This rule also includes the notion that the rights of the coastal State over the shelf do not require occupation or express proclamation. The provision on the external limit, based on the 200 meters isobath and on exploitability, was soon seen as obsolete in light of technological progress and was radically modified in the 1982 Convention.

The OPSD, of which only States parties to at least one of the Geneva Conventions can become parties, provides for compulsory jurisdiction of the ICJ for all disputes concerning the interpretation or application of the Conventions, unless the parties to the dispute agree to arbitration or conciliation. This Protocol has never been applied. The modest number of parties it has attracted shows that compulsory settlement of disputes in law of the sea matters, if it is to be practically relevant, must be an integral part of the instrument dealing with substance, a lesson learned by UNCLOS III in drafting the 1982 LOSC.

The importance of the Geneva Conventions is currently mostly historical, as an expression of the ‘traditional law of the sea’, namely of the law prevailing before the transformations in the international community and in the uses of the seas that brought about the UNCLOS III (1973–1982). They were influenced by the work conducted during the 1930s and by the Truman Proclamations. The trend already manifest especially in Latin America, for the extension of the coastal State’s jurisdiction to a wide area beyond the territorial sea, already quantified in 200 miles, was rejected notwithstanding the strong support of Latin American representatives. Similarly, the claims for the recognition of the archipelagic waters concept did not find an echo in the Geneva Conventions.

The Geneva Conventions were adopted less than a decade before the famous speech by Arvid Pardo at the UN General Assembly in 1967 that started the process for the complete renewal of the law of the sea, and they entered into force just a few years before that event. This explains why they were soon seen by a majority of States as obsolete, as evidenced by the fact that ratifications and accessions deposited after entry into force were very few. Under Article 311(1) of the LOSC, the latter instrument ‘shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958’. As the 166 parties to the LOSC include most of the States bound by the Geneva Conventions, the latter conventions remain binding only as between, or in the relationships with, the few States that are parties to the relevant Geneva Convention and not to the 1982 Convention. These States include the United States, Colombia, Israel, and Venezuela.

Many provisions of the Geneva Conventions, at the time of their adoption, corresponded to customary international law. This seems particularly true as regards the HSC, most of which has been transposed into the 1982 Convention. The HSC preamble explicitly states that its purpose is ‘to codify the rules of international law relating to the high sea’. This provision is not repeated in the other Conventions in which ‘codification’ was difficult to disentangle from ‘progressive development’. Still, a number of provisions in the TSC, could, and still can, be seen as corresponding to customary law. Moreover, the basic provisions of the CSC, with the exception of those on the outer limit, have been indicated as contributing to the ‘crystallization’ of the customary notion of the continental shelf and still correspond to customary law.

6 The Contribution of International Courts and Tribunals to the Development of the Law of the Sea, from the end of the Nineteenth Century to the Aftermath of the Geneva Conventions

The development of the international law of the sea in the decades leading up to UNCLOS III cannot be fully understood without considering the impact of the decisions of international courts and tribunals in this area. This period is characterized by a growing reliance of States on international courts and tribunals including for disputes concerning law of the sea matters. In the early decades of this period, States relied on arbitral tribunals, while, with the establishment of the Permanent Court of International Justice after World War I, and of the International Court of Justice after World War II, permanent bodies played a pre-eminent role. The contribution of international courts and tribunals is, admittedly, unsystematic, as it arises from cases relating to specific situations and requiring the application of particular treaties. Still, specific situations stimulate exploration by both parties and judges of the scope of general rules as well as of their content. They may also throw light on the insufficiencies of existing customary law. Moreover, they have an impact on the codification process by focusing attention on new issues, proposing solutions sometimes followed, and sometimes contrasted by, codification conventions.

One early example of a statement of a customary rule is the Muscat Dhows arbitration between France and Great Britain. In the 1905 award, it is stated 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’. 31 This rule is the point of departure for that set out in the 1958 HSC (Articles 4 and 5) and later in the LOSC (Articles 91–92).

In the SS ‘Lotus’ judgment of 1927, the Permanent Court of International Justice formulated the idea of the freedom of the high seas and its connection with the exclusive right of the flag State: ‘vessels on the high seas are subject to no authority except that of the State whose flag they fly. In virtue of the 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’. 32 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’. 33 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 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 maritime circles’, and that 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, supported the exclusive jurisdiction of the flag and of the national State of the accused. In view of the SS ‘Lotus’ judgment, the ILC ‘felt obliged to take a decision’. ‘With the object of protecting ships and their crews from the risk of penal proceedings before foreign courts’, it concurred with the 1952 Convention. 34 Article 11 of the CHS and Article 97 of LOSC followed it adopting the view rejected by the PCIJ.

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. 35 In its 1949 judgment, the ICJ stated the rules concerning the duties of the coastal State as regards innocent 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’. 36 Stating these rules in the draft article that was to become Article 15 of the TSC, the ILC explicitly said that it confirmed the ‘principles upheld’ in the Corfu Channel judgment. 37

In the same judgment, the Court had to deal with 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 question. 38 Having determined that the Corfu Channel 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’. 39 This formulation was followed in the ILC’s draft articles submitted to the Geneva Conference (Article 17(4)), while the corresponding rule of the TSC (Article 16(4)) added the controversial mention of straits connecting one portion of the high seas with a territorial sea.

A case in which a judicial formulation of the law was followed in codification conventions is the Anglo-Norwegian Fisheries case. 40 The 1951 ICJ 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 generally been adopted in the practice of States’. 41 Confronted with the existence of deep indentations and the fringe of islands constituting the Norwegian skjærgaard , the court held that, as the latter ‘constitutes a whole with the mainland, it is the outer line of the “skjærgaard” which must be taken into account in delimiting the belt of Norwegian territorial waters’. And specified that where ‘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 method is that of straight baselines. 42 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’, 43 the judgment states ‘criteria’ to guide courts in assessing the compatibility of straight baselines with international law. First, ‘the drawing of base-lines must not depart to any appreciable extent from the general direction of the coast’. Second, the lines must be ‘sufficiently closely linked to the land domain to be subject to the regime of internal 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’. 44

The impact of this judgment on the codification process and on the clarification of customary law is beyond doubt. The ILC 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’. 45 The language of the Court is repeated in Article 5 of the ILC draft and with some additions in Articles 4 of the TSC and 7 of LOSC.

There are cases in which international courts and tribunals found that customary 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 shape required for a bay to be enclosed in internal waters and the maximum length of the closing line provide an example. The 1910 arbitral award in the United States v United Kingdom 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’. 46 In the above-quoted Anglo-Norwegian Fisheries judgment of 1951, the ICJ stated that:

[A]lthough 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. 47 47 Anglo-Norwegian Fisheries , n 40 , 131.

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. 48

The Article was repeated with some additions in Article 7 of the TSC and in Article 10 of LOSC, both substituting 24 miles for the 15 proposed by the ILC. It is noteworthy that in its 1992 judgment in the Land and Maritime Frontier case, the ICJ stated that these provisions ‘might be found to express general customary law’. 49

The 1974 ICJ judgments on the Fisheries Jurisdiction cases, between the United Kingdom and the Federal Republic of Germany on the one hand and Iceland on the other, provide another example in which judicial decisions became intertwined with codification processes. 50 The ICJ went beyond what was decided at Geneva, but did not dare to take fully into account the contemporaneous developments brought in full view by the beginning of the UNCLOS III. While acknowledging that the Geneva Conferences of 1958 and of 1960 had failed to adopt a decision on the breadth of the territorial sea and on fishery zones, the Court observed that, after the 1960 Conference:

[T]he law evolved through the practice of States on the basis of the debates and near-agreements at the Conference. 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. 51 51 Fisheries Jurisdiction (United Kingdom v Iceland) , n 50 , 23 [52].

The Court decided the disputes brought against Iceland on the basis of these two concepts, in which it saw new rules of customary law. It acknowledged that at UNCLOS III (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’. 52 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’. 53 It seems difficult to deny that—as stated in a separate opinion of six judges—the numerous proposals put forward at UNCLOS III for the adoption of extended fisheries zones should have had an impact. The six judges stated 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 fisheries jurisdiction and their opinio iuris on a subject regulated by customary law. 54 54 Ibid , 46 [13] (Joint separate opinion of Judges Foster, Bengzon, Jiménez de Aréchaga, Nagendra Singh, and Ruda).

In assessing the role played by international courts and tribunals in the aftermath of the Geneva conventions, the 1969 ICJ judgments on the North Sea Continental Shelf cases are particularly relevant. 55 First, arguing from the fact that no reservations are allowed to Articles 1 to 3 of the CSC, the Court states that these articles were in 1958 ‘regarded as reflecting, or crystallizing, received or at least emergent rules of customary international law’. 56 The judgment lists the issues covered by these articles, including ‘the seaward extent of the continental shelf’: an issue on which the rule set out in the CSC was soon to appear as inadequate and was to be replaced by the different one of Article 76 of LOSC.

Second, and principally, the Court dealt with the question whether the ‘equidistance-special circumstances’ rule set out in Article 6 of the CSC for the delimitation of the continental shelf between States whose coasts are opposite or adjacent corresponded to customary law. The answer was in the negative. The Court stated that the ‘delimitation has to be effected by agreement in accordance with equitable principles and taking into account all the relevant circumstances’. 57 This judgment was influential on the subsequent judgments of the Court, and on negotiations at the Third UN Conference on the Law of the Sea. Still, starting with the 1977 Anglo-French Continental Shelf arbitral award, courts came to recognize that the distance between Article 6 of the CSC and customary law was narrow. The 1977 award stated that:

[T]he role of the ‘special circumstances’ condition in Article 6 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. 58 58 Arbitration between the United Kingdom of Great Britain and Northern Ireland and the French Republic on the Delimitation of the Continental Shelf (1977) XVIII RIAA 3, 45 [70].

As is well known, the post-LOSC jurisprudence has come to recognize that the ‘equitable principles-relevant circumstances’ it now adopts is ‘very similar’ to the Geneva ‘equidistance-special circumstances’ rule. 59

7 Conclusion

Through the centuries the law of the sea has been a battleground in which the interests of the main maritime powers have measured their strength and, at the same time, a laboratory for the development of international law rules. From the beginning of its evolution up to the mid-twentieth century, the international law of the sea, although applying to all the seas of the world, remained mostly Eurocentric, or Euro/North American-centric. The basic legal concepts and technique that made the essence of this branch of international law were, nonetheless, strong and resilient enough to adapt to the broadening to all States of the world of the community directly interested in the law of the sea and to the extension of maritime activities, and the changing priorities between them, beyond the traditional ones, which marked the post-colonial and post-Geneva era of the law of the sea.

Reliance on customary law in combination with a growing network of conventional rules and on the contribution made by codification efforts and international judgments and awards, developed in the traditional law of the sea provided the legal framework for the nuanced, and changing, degrees of coastal State exclusive rights on areas adjacent to the coasts, for the notions of the freedoms of the sea and of the exercise of such freedoms without prejudice to the corresponding freedoms of other States in the high seas, for the requirement of cooperation and the benefits of international adjudication. With necessary additions, such as the notion of the common heritage, the traditional legal framework and technique could adapt to encompass the coastal States’ claims to exclusive rights over broad areas of the sea and combine these claims with the needs of international communication and with those of intensified and more institutionalized cooperation for the exploitation of common resources and the protection of the marine environment which characterize the law of the sea of the final decades of the twentieth century and of today.

RP Anand , Origin and Development of the Law of the Sea (Martinus Nijhoff The Hague 1983) ; T Scovazzi , ‘The Evolution of the International Law of the Sea: New Issues, New Challenges’ (2001) 286 Recueil des cours 39 , chs I and II; A Kirchner , ‘The Law of the Sea, History of’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press Oxford 2012) Vol VI, 732 ; DJ Bederman , ‘The Sea’ in B Fassbender and A Peters (eds), The Oxford Handbook of the History of International Law (Oxford University Press Oxford 2013) 359.

TW Fulton , The Sovereignty of the Sea (W Blackwood Edinburgh/London 1911) 110ff. See also Scovazzi, n 1 , 58.

C van Bynkershoeck , ‘De Dominio Maris Dissertatio’ in Opera Minora (2nd edn Apud Joannem van Kerckhem Lugduni Batavorum 1744) ch VIII, 401, reproduced with an English translation in Carnegie Classics of International Law (Oxford University Press New York 1923) 111, 89.

Ibid , ch II, 364 (44 of English trans).

E de Vattel , Le droit des gens ou principes de la loi naturelle, appliqués à la conduite et aux affaires des nations et des souverains (London 1758) , reproduction of books I and II of the 1758 edition (Carnegie Endowment for International Peace Washington 1916) 249 [289].

F Galiani , De’ doveri dei principi neutrali verso i principi guerreggianti e di questi verso i Neutrali (Napoli 1782) 422.

C Alexandrovic , An Introduction to the History of the Law of Nations in the East Indies (Clarendon Press Oxford 1967) 42–9.

With the Act of 2 March 1799, providing for customs jurisdiction up to four leagues corresponding to 12 nm.

The text of the conventions between the United States and the United Kingdom of 23 January 1924 (hereinafter 1924 USA–UK Convention) and between the United States and Norway of 24 May 1924 (hereinafter 1924 USA–Norway Convention) is, with references to the other conventions similar to one or the other, in United Nations Legislative Series, Laws and Regulations on the Regime of the Territorial Sea (United Nations New York 1957) 784.

Respectively, 1924 USA–UK Convention, n 9 , Art 1, and 1924 USA–Norway Convention, n 9 , Art 1.

Hague Conference on the Codification of International Law (1930), Acts of the Conference for the Codification of International Law, March 13–April 12, 1930 , 2 vols, League of Nations Doc Nos C.351.M.145.1930.V, 2 vols (1930); C.351(a).M.145(a).1930.V (1930), and Vol 1, Suppl., Doc No C.73.M.38.1929.V (1929); S Rosenne , League of Nations Conference on the Codification of International Law (1930) (Oceana Publications Dobbs Ferry NY 1975) (hereinafter Conference by the Preparatory Committee).

Respectively, in ‘Territorial Waters’ (1929) 23 American Journal of International Law Special Suppl 243 , and ‘Part IV: Piracy’ (1932) 26 American Journal of International Law Special Suppl 739.

Institut de Droit International, Session de Stockholm, Resolution II, ‘Règlement sur le régime des navires de mer et de leurs équipages dans les ports étrangers en temps de paix’ (1928), available at < http://www.idi-iil.org/idiF/resolutionsF/1928_stock_02_fr.pdf > (hereinafter Resolution II of 1928 at Stockholm).

International Law Association, Report of the 33rd Conference 1924, Stockholm (Sweet and Maxwell London 1924) 259.

See Resolution II of 1928 at Stockholm, n 13 , Art 5.

Bases of discussion drawn up for the Conference by the Preparatory Committee, n 11 , 10ff.

G Gidel , Le droit international public de la mer: Le temps de paix (Mellottée Chateauroux 1932).

League of Nations Assembly Resolution of 24 September 1927, (1927) 53 League of Nations Official Journal (Special Supplement) 9, repr in (1947) 41 American Journal of International Law Supplement 105.

Gidel, n 20 , Vol III, 468.

Ibid , Vol III, 473. In the French original:

Le droit international ne reconnait pas les intérêts de pêche comme susceptibles de servir de base à l’institution en cette matière d’une zone contiguë par la déclaration unilatérale de l’Etat riverain.

In 1959 the Cuban jurist and diplomat Garcia Amador, examining possible extensions of coastal States’ fishery rights through the notion of the contiguous zone, stated that: ‘the monopoly over or exclusive exploitation of the resources of the sea was entirely foreign to the purpose for which the establishment of this zone could be permitted’. See G Amador , The Exploitation and Conservation of the Resources of the Sea (2nd edn AW Sythoff Leydon 1959) 65.

Proclamation No 2267 (1945) 12 Federal Register 12303; Proclamation No 2668 (1945) 12 Federal Register 12305; AV Lowe and SAG Talmon , The Legal Order of the Oceans. Basic Documents on the Law of the Sea (Hart Oxford/Portland 2009) 19, 20.

1942 Treaty between Great Britain and Northern Ireland and Venezuela Relating to the Submarine Areas of the Gulf of Paria; Lowe and Talmon, n 24 , 16.

A de Ulloa , Derecho internacional público (4th edn Iberoamericanas Madrid 1957) 565ff.

1952 Declaration on the Maritime Zone (hereinafter Santiago Declaration).

UN Treaty Registration No 14758.

A/CONF.13/L.58 (29 April 1958), II Official Records of the Third UN Conference on the Law of the Sea 146. 1958 Convention on the Territorial Sea and the Contiguous Zone (TSC); the Convention on the High Seas (HSC); 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas (CFCLR); 1958 Convention on the Continental Shelf (CSC); and 1958 Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes (OPSD). The TSC entered into force on 10 September 1964; the CHS on 30 September 1962; the CFCLR on 20 March 1966; the CSC on 10 June 1964; and the OPSD on 30 September 1962. States bound by the conventions and protocol, are, as at 28 December 2013, for the TSC, 52; for the HSC, 63; for the CFCLR, 39; for the CSC, 58; for the OPSD, 38.

North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) [1969] ICJ Rep 3, [63]. See also E Jiménez de Aréchaga , ‘International Law in the Past Third of a Century’ (1978) 159 Recueil des Cours 9, 12, 14, and 16–18.

Muscat Dhows (France/Great Britain) (PCA 1905) (1961) XI RIAA 83.

SS ‘Lotus’ (France v Turkey) (Judgment) (1927) PCIJ Ser A, No 10, 25.

‘Report of the International Law Commission to the General Assembly: Commentary to the Articles Concerning the Law of the Sea’ (1956) II Yearbook of the International Law Commission 253, 281 (hereinafter ILC Commentary).

Corfu Channel (United Kingdom v Albania) [1949] ICJ Rep 4.

ILC Commentary, n 34 , 273.

Corfu Channel , n 35 , 30.

Fisheries (United Kingdom v Norway) (Judgment) [1951] ICJ Rep 116 (hereinafter Anglo-Norwegian Fisheries ).

Ibid , 128.

Ibid , 128–9.

Ibid , 132.

Ibid , 133.

ILC Commentary, n 34 , 267.

North Atlantic Coast Fisheries (Great Britain v United States of America) (Award) (1910) XI RIAA 167, available at < http://www.pcacases.com/web/sendAttach/496 > (see page 24).

ILC Commentary, n 34 , 269.

Land, Islands and Maritime Frontier Dispute (El Salvador v Honduras: Nicaragua Intervening) (Judgment) [1992] ICJ Rep 351, [383].

Fisheries Jurisdiction (United Kingdom of Britain and Northern Ireland v Iceland) (Merits) [1974] ICJ Rep 3; Fisheries Jurisdiction (Federal Republic of Germany v Iceland) (Merits) [1974] ICJ Rep 175.

Ibid , 23 [53].

Ibid , 23–4 [53].

North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) (Judgment) [1969] ICJ Rep 3.

Ibid , 39 [63].

Ibid , 53 [101, C.1].

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) (Judgment) [2002] ICJ Rep 303, [288].

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Berkeley Law

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  • Convention des Nations Unies sur le droit de la mer (1982)">(1982)
  • United Nations Convention on the Law of the Sea (1982 December 10)">(1982 December 10)
  • Law of the sea.

Surabhi Ranganathan

Interfaces of land and sea.

I write this essay in an office in Singapore, where I have just learnt an arresting fact: that in the course of my arrival, via Terminal 3 of Singapore’s Changi Airport, I must have crossed – on foot – the probable spot where, more than 400 years ago, the Dutch East India Company (VOC) Captain Jacob van Heemskerk captured the Portuguese ship Santa Catarina. This incident – richly narrated by Martine van Ittersum in Profit and Principle – was a critical event for international law; from it emerged the brief that became one of the discipline’s foundational texts. While Hugo Grotius wrote Mare Liberum (or The Free Sea ) under commission from the VOC, his arguments transcended this specific context to become the accepted doctrine that would long define legal engagement with the ocean.

“Map of the Castle and the City of Batavia, on the island of Java (now Jakarta, Indonesia),” Jan Janssonius, TU Delft.

Yet, over this period, and in an accelerated way in the 20th century, our sense of the physical differences between land and sea have undergone a shift. It is recognized, in the law and outside, that the ocean is akin to land in being divisible and appropriable. Its resources are exhaustible, and cultivation – e.g. aquaculture – is increasingly seen as essential to assure the supply of fish. A dense network of legal rules on access, use-rights, and responsibilities regulates the crowding conglomerations of interests in the oceans. In The Social Construction of the Ocean , Philip Steinberg suggests that ‘great void’ conceptions of the ocean conflict now with the evident and on-going territorialisation of ocean-space.

The law has been called upon not only to reflect the resemblances between land and sea, but also address the mutability of the relationship between the two. This mutability may follow as an intended consequence of human enterprise, i.e. projects of ‘reclamation’ such as that which accounts for the site of Terminal 3 of Changi Airport; indeed, Singapore today boasts of a 25% increase of its total land area over the past 200 years due to such projects. It may also follow, however, as an unintended consequence: with rising sea levels betokening the ocean’s own reclamation projects in the opposite direction.

“Map of Singapore showing original land, reclaimed land, and future land reclamation plans,” NTU Singapore.

This sequence of essays explores the imprints of climate change, and legal responses to it, within such and other interfaces between land and sea. The changing relationships between them provide evidence of climate change’s causes. They help us visualise also its likely consequences, as the fixed certainties – soil, resources, infrastructure – that govern our imagination of land begin to fall apart. And, they confront us with the irony that these very losses and uncertainties are driving new expectations of, and investments in, the sea.             

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Modern law of the sea : selected essays

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  • The development of the modern Law of the sea
  • Law-making processes in the UN system : some impressions
  • Entry into Force of the UN Convention on the Law of the Sea
  • British accession to the UN Convention on the Law of the Sea
  • The current status of the Conventions on the Law of the Sea
  • Rights of passage and marine pollution
  • Straits used for international navigation
  • The legal regime of the straits around Great Britain
  • The legal regime of the Channel/La Manche
  • The Icelandic fisheries cases
  • The regulation of fishing and related activities in exclusive economic zones
  • Freedoms of the high seas in the modern Law of the sea
  • The enforcement of international maritime rules and standards
  • Port state powers in the modern Law of the sea
  • Prompt release of vessels under the UN Convention on the Law of the Sea
  • Efforts to ensure universal participation in the convention
  • Further efforts to ensure universal participation in the convention
  • The role of the international lawyer in the negotiation of treaties
  • Mechanisms for adjusting Part XI and the implementation agreement
  • Resolution and agreement relating to the implementation of Part XI
  • The straddling Stocks Agreement of 1995
  • Maritime boundaries and limits : some basic legal principles
  • Developments in maritime boundary law and practice
  • Negotiating maritime boundary agreements
  • Maritime delimitation : early British practice
  • British maritime jurisdiction
  • Grisbadarna revisited
  • Strategies for dispute resolution : negotiating joint agreements
  • The international tribunal for the Law of the sea-- The early practice of the international tribunal for the Law of the sea
  • The internal judicial practice of the international tribunal for the Law of the sea
  • The role of ITLOS as a means of dispute settlement under UNCLOS
  • The judicial work of the international tribunal for the Law of the sea
  • Scientific evidence in cases concerning the Law of the sea
  • Trust funds in international litigation
  • Article 283 of the UN Convention on the Law of the Sea.

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The Law of the Sea - Dr Surabhi Ranganathan

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law of the sea essay

'Law of the Sea' is a series of seven essays: Interfaces of Land and Sea; Fragile Ports; Sinking States; Expanding Shelves; Coagulating Islands; Waterworlds; The Out-of-Sight Arteries of Globalization.

These essays were first published on the Joint Center for History and Economics   website at Harvard University  (January 2020).

1. Interfaces of Land and Sea

I write this essay in an office in Singapore, where I have just learnt an arresting fact: that in the course of my arrival, via Terminal 3 of Singapore’s Changi Airport, I must have crossed – on foot – the probable spot where, more than 400 years ago, the Dutch East India Company (VOC) Captain Jacob van Heemskerk captured the Portuguese ship Santa Catarina. This incident – richly narrated by Martine van Ittersum in  Profit and Principle  – was a critical event for international law; from it emerged the brief that became one of the discipline’s foundational texts. While Hugo Grotius wrote Mare Liberum (or  The Free Sea ) under commission from the VOC, his arguments transcended this specific context to become the accepted doctrine that would long define legal engagement with the ocean.

Yet, over this period, and in an accelerated way in the 20th century, our sense of the physical differences between land and sea have undergone a shift. It is recognized, in the law and outside, that the ocean is akin to land in being divisible and appropriable. Its resources are exhaustible, and cultivation – e.g. aquaculture – is increasingly seen as essential to assure the supply of fish. A dense network of legal rules on access, use-rights, and responsibilities regulates the crowding conglomerations of interests in the oceans. In  The Social Construction of the Ocean , Philip Steinberg suggests that ‘great void’ conceptions of the ocean conflict now with the evident and on-going territorialisation of ocean-space.

The law has been called upon not only to reflect the resemblances between land and sea, but also address the mutability of the relationship between the two. This mutability may follow as an intended consequence of human enterprise, i.e. projects of ‘reclamation’ such as that which accounts for the site of Terminal 3 of Changi Airport; indeed,  Singapore today boasts of a 25% increase of its total land area over the past 200 years  due to such projects. It may also follow, however, as an unintended consequence: with rising sea levels betokening the ocean’s own reclamation projects in the opposite direction.

This sequence of essays explores the imprints of climate change, and legal responses to it, within such and other interfaces between land and sea. The changing relationships between them provide evidence of climate change’s causes. They help us visualise also its likely consequences, as the fixed certainties – soil, resources, infrastructure – that govern our imagination of land begin to fall apart. And, they confront us with the irony that these very losses and uncertainties are driving new expectations of, and investments in, the sea.     

law of the sea essay

2. Fragile Ports

First in his novel,  The Hungry Tide , and then in his lectures on climate change published as  The Great Derangement , Amitav Ghosh narrates the story of ‘one of the first Cassandras of climate science’, a mid-19th century Englishman living in Calcutta, called Henry Piddington. Piddington, an amateur meteorologist, raised early alarm about a project initiated by the (British) East India Company to construct a new port city on the banks of the Matla river in Bengal. This port was envisaged as an alternative to the older Calcutta port, which, although a major centre for the Company’s shipping operations, lay further inward from the Bay of Bengal. In 1853, in a pamphlet addressed to the Governor-General of India,  Piddington warned  that the planned new port would be far too exposed to a storm surge:

‘[E]very one and everything must be prepared to see a day when, in the midst of the horrors of a hurricane, they will find a terrific mass of salt-water rolling in, or rising up upon them, with such rapidity that the whole settlement will be inundated to a depth from five to fifteen feet.’

law of the sea essay

Rising sea waters will flood all these great hubs of human life, impacting millions of people. Of these, the worst affected will be those who have settled there neither due to hubris nor forgetting, but because dispossessed of homes and livelihoods elsewhere. Some, among them many Bangladeshis and Syrians, will be made climate refugees twice over.      

3. Sinking States

If mass displacement due to rising sea levels is the threat hanging over Asia’s millions, another kind of loss may be in store for their oceanic neighbours. Several Pacific Island states, among them Tuvalu, the Marshall Islands, Kiribati, and the Solomon Islands, face the prospect of a total extinction of their land areas. So do the Maldives and Seychelles in the Indian Ocean. Their low elevations make these states particularly vulnerable; several have already seen a significant percentage of their land disappear under water.

In legal terms, this possibility of total loss of territory raises further questions, beyond the important ones of resettling the populations of these states. These have to do with whether these populations will become stateless peoples. International law indicates certain criteria which much be fulfilled for a state to come into existence; inter alia there must be, to use Judge James Crawford’s phrase, ‘a territorial community under government’. What then to make of islands which will no longer be able to support a territorial community?

Even as they prepare for the practical exigencies of dislocation, these threatened island states are understandably concerned to maintain their independent sovereign status. Some have explored the option of acquiring new land: in 2014, in a desperate measure after a World Bank led adaptation programme was perceived to achieve  only doubtful success , Kiribati paid out  a sum of $8.77 million to the Church of England  to purchase 20 square kilometres of land on a Fijian island. According to former President Anote Tong of Kiribati, who oversaw the transaction, this area may become the new home of his state’s 110,000 people. Yet, while such purchases may confer ownership of property, they cannot confer sovereignty – that must be agreed with the ceding state. Such agreements are difficult to secure. Jane McAdam relates  the previous experience of Nauru , which, having suffered massive environmental damage due to irresponsible phosphate mining under the trusteeship of Australia, New Zealand and the United Kingdom (later the subject of a  proceeding  brought by Nauru before the International Court of Justice) had sought resettlement on a new island. Australia, willing to offer Curtis Island for the purpose, categorically refused to transfer sovereignty over it to Nauru.

International lawyers have responded to this unfair eventuality with the suggestion of  ‘freezing’ the baselines  from which the maritime claims of such states are measured; so that later decreases of land will have no effect on their resource entitlements. Implied here is the adoption of a collective legal fiction, an unconsciousness mental stretching of the area of each sinking state to maintain an agreed upon square mileage. Part of the elegance of this proposal is its reversal of decades of cartographic practice, which has facilitated our common mental diminution of their significance.

law of the sea essay

4. Expanding Shelves

As you walk into the ocean, crossing the low-water baseline, the ground gently declines. If you walk out far enough – of course, by now, well underwater – you will reach a point where it suddenly falls away from your feet. This may be for many reasons: a shift in the sands; or you may be teetering at the edge of a canyon. Or you may have discovered for yourself the edge of the geological formation known as the continental shelf.

The continental shelf is a ubiquitous feature of coasts around the world. It is not, however, a uniform terrain. Some coasts, such as the Atlantic seaboard of the United States, have a broad continental shelf – gradually declining over a long distance – others, like the US’s own Pacific seaboard, have narrow ones. Some shelves are relatively smooth; others are fissured and fractured by ridges and canyons. Continental shelves give on to a steeply falling continental slope, and then a gradually declining continental rise where the sliding sediments gather. Together, the three comprise the continental margin, distinct in composition from the abyssal plain: the floor of the deep ocean.

Until the Second World War, the shelf was largely governed by the principle of the freedom of the sea. But in 1945, following the discovery of petroleum deposits off its eastern coast, the US issued the  Truman Proclamation , asserting jurisdiction over the resources of the continental shelves which were ‘naturally appurtenant’ to its coasts. It thereby set off a long process of ever expanding claims. The initial US claim, limited to the part of the shelf less than 100 fathoms under water, comprehended territory only a few miles out into the ocean (but, given its long coastlines, still a significant claim, obtaining, for  ‘the price of printer’s ink’, effective sovereignty ‘over submerged lands equal in [total] area to the Louisiana Purchase’ ).

However this limit was overcome by two forces. The first was pressure from oil companies, which had developed the capability to extract oil in deeper waters and encouraged states to bring larger stretches of the shelf under national jurisdiction, so that they could offer corporations secure and exclusive tenure over drilling sites.

The second was pressure from states which had narrow continental shelves (such as many Latin American ones), and thus rejected a depth criterion altogether. They argued instead for a distance criterion that would allow all states rights to equal widths of the seabed, regardless of whether the area incorporated included the slope, or rise or even the abyssal plain.

law of the sea essay

5. Coagulating Islands

The dynamic topography of the Earth owes as much to human processes as it does to natural ones. While volcanoes, earthquakes, landslides, or just quotidian processes of wind- and water-driven sedimentation and erosion can make land appear and disappear, surface changes also result from blasting, dredging, reclamation, and the like – as they do from the melting ice and the rising seas.  

The law addresses such changes in various ways. The doctrines of  accretion and avulsion , among others, provide guidance on who has sovereignty over land emerging via natural processes; while the  1982 Convention on the Law of the Sea  sets out states’ rights and obligations with respect to the construction of artificial islands. Of course these are matters that give rise to frequent and complex disputes, but the law provides the framework through which the claims may be articulated and adjudicated.

The same cannot be said for a new species of accumulating mass, the so called trash islands. The ocean is today clotted with areas of concentrated plastic wastes that, released from all over the world, collect at ocean gyres. The Pacific, Atlantic, and Indian oceans all have large swirling garbage patches –  a recent study  suggests that the size of the Pacific patch is about 1.6 million sq. km, close to three times the size of France. The waste is not compacted into a solid body: a part of it is broken down into minute particles, though larger objects also abound; the garbage patches resemble  ‘cloudy soup’  -- of enormous proportion (the study estimates a figure of 79000 tonnes for the Pacific patch).

The  environmental harms that result  from all this plastic are hard to overestimate:  100,000  marine animals are killed or injured by plastics every year; marine animals mistake smaller pieces of plastic for food – harmful to them, and also contaminating to the food chain; larger plastics too disrupt the food chain by blocking sunlight from plankton and other autotrophs. Plastics also leach out toxic substances into the ocean.

Despite a clutch of legal instruments, such as the  London Dumping Convention , the  MARPOL Convention , the regional  OSPAR Convention , and the like, it is difficult to pinpoint responsibility either for creating this mess or for cleaning it up. The plastic comes from everywhere, if more from some places than others, and it collects in areas beyond national jurisdiction. The enormous costs of any clean-up operation deter even states with strong environmental lobbies from taking action in the collective interest. In effect, the garbage patches are a tragedy of the commons.

In September 2017, British media group LADbible and the Plastic Oceans Foundation started an unusual campaign: asking the United Nations to recognise the Pacific garbage patch as an independent country, named the  Trash Isles . They have designed a flag, a passport, currency and stamps, and encourage people to  register  as citizens (nearly 250,000 people have signed up, including David Attenborough and Al Gore). The  campaign website  states that the Trash Isles can fulfil all legal criteria for statehood, including territory, people, government, and capacity to enter into relations with other states; and that legal recognition of its statehood will entitle the new country to demand cooperation for its clean up from other states.

The arguments are satirical of course; a brilliant pin-pointing of the scale (country-sized!) and social embeddedness of the problem (if we don’t act now, sooner or later, we will all become involuntary citizens of trash islands), as well as the difficulties in finding a solution within the framework of a state-centric international legal system.

In the wonderful  Seven-Tenths , James Hamilton Patterson writes of imaginary lands as the product of desire, of the  horror vacui  generated by the open ocean in the minds of both mariners and mapmakers; one such island, Mayda, appeared on maps from 1400 to 1906, changing locations, but indubitably present. LADbible’s  Trash Isles  are also imagined, but in fearful anticipation of the real thing, a desertified ocean.      

law of the sea essay

6. Waterworlds

‘Welcome to seavilization’, says the  website  of the Seasteading Institute (‘SI’). Founded in 2008 by Silicon Valley billionaire Peter Theil and Milton Friedman’s grandson Patri Friedman, the SI is raising investments for the creation of – what they hope will be – mini ocean-floating republics. They describe the  aims of their project  in terms of ‘making land’ to ease the pressure on crowded urban centres; and fostering ‘societal innovation’,  by liberating the residents of these republics  from ‘obsolete’ political systems (read welfare and taxes):

‘Currently, it is very difficult to experiment with alternative social systems on a small scale; countries are so enormous that it is hard for an individual to make much difference. The world needs a place where those who wish to experiment with building new societies can go to test out their ideas. All land on Earth is already claimed, making the oceans humanity’s next frontier.’

SI’s pilot project,  announced in January 2017 , was to be a floating city built in Polynesian waters, off the coast of Tahiti. The city was intended to be composed of several detachable housing units and to accommodate a few hundred people. SI claimed that French Polynesia had agreed to grant autonomy to this city: its residents would choose their legal and political arrangements; Polynesian laws would not apply. This pilot would serve as a  ‘proof-of-concept’  and inspire other experiments, including further offshore. In time, the ocean would be occupied by several such sea-steads, that would be hubs for commerce and  petri dishes for various experiments in social organization ; unhappy residents from one could then move to another, carrying their homes as they might a trailer.

By SI’s own estimation, this is a  visionary project . And indeed, there is a form of inventive genius at work here. But in what does it consist? Not so much SI’s architectural plans, which after all recall older blueprints, such as those by  Buckminster Fuller and Shoji Sadao , or  Kiyonori Kikutake . Not so much also the stupendous feats of engineering entailed, for we have already witnessed the construction of oil platforms, deep sea drilling ships, and artificial islands such as Dubai’s Palm Jumeirah. Jacques Costeau ( Conshelf ) and the US Government ( Sealab  and  Tektite ), even built experimental structures for underwater living. Nor is the SI’s vision of autonomy – a rehearsal of libertarian ideas – a manifestation of inventive genius. Many less literal ‘off-shores’ exist already to protect individuals and businesses from the reach of taxes, labour regulations, and various social and penal laws.

In an  online story , Hettie O’Brien examines what may be the actual intent underlying SI’s grand claims: changing on-shore US tax policy, by drawing attention to the threat of capital flight, as well as alternative imaginations of freedom and government. And here is where we might concede SI’s inventive genius: in the account it constructs of seasteading’s legitimacy. Its narrative transforms a plan for socially-insulated, ultra-exclusive, gated communities to a claim of creating new polities. It describes a luxury construction requiring heavy input of natural resources in terms of adapting to climate change. And it turns the idea of the free sea into a suggestion that on the ocean, unlike on land, anything goes.

But the ‘freedom of the sea’ is a legal institution, and private conduct is subject to national and international laws. These can be subverted, but they do not disappear merely because one moves a few miles off land. Ironically enough, the SI’s initial plans rest on the guarantee of a waiver of territorial jurisdiction by host states, not any anterior liberty-granting property of the ocean. Such a waiver may not be easily forthcoming in any case: a year after it reportedly concluded a deal with SI, French Polynesia announced it would  no longer  proceed.     

law of the sea essay

7. The Out-of-Sight Arteries of Globalization

In The Undersea Network , Nicole Starosielski offers the following corrections  to our intuitive understandings of the global communications network:

‘It is wired rather than wireless; semicentralized rather than distributed; territorially entrenched rather than deterritorialized; precarious rather than resilient; and rural and aquatic rather than urban.’

99 percent of it relies on a technology that remains out of sight, the undersea cable. A  very few links  – forty-five from the continental United States, less than five from many other countries – extending outwards (and downwards) from each state support the bulk of world’s phone-calls, emails, videos and other digital exchanges. Connected in a hub-and-spoke fashion, with many newer fibre-optic systems mapping onto older telegraph and telephone routes, the submarine cable network has joined lands across the ocean for over a century.

The first transoceanic cable was laid in the mid-19th century, joining North America to Europe via Valentia Island in western Ireland, and Heart’s Content in eastern Newfoundland, Canada. It was laid by the newly formed Atlantic Telegraph Company, promoted by Cyrus West Field; commenced operations on 16 August 1858 with an exchange of greetings between Queen Victoria and US President James Buchanan; and broke down three weeks later. Following the American Civil War, the company – now reconstituted as the Anglo-American Telegraph Company, following several mergers – tried again, and in 1866 succeeded in establishing a more durable connection. Since then, more than 550000 miles of submarine cables have come to connect all the regions of the world.

Yet their ubiquity passes unrecognized, hidden as much by seawater as by ‘a historiographic practice  that tends to narrate  a transcendence of geographic specificity, a movement from fixity to fluidity, and ultimately a transition from wires to wireless structures’. Apart from distorting our understanding of the mechanisms that underpin global economic exchange, such a historiography occludes the social and environmental toll of submarine cables, as also the regulatory gaps that leave them vulnerable to damage.

In South East Asia, the impact of cables had preceded their presence; their distant use locally producing ‘ a Victorian ecological disaster ’. In the 19th and early 20th centuries, cable wires used to be wrapped in a naturally occurring latex called  gutta percha  to insulate them from seawater. This grew in the rainforests of (what were then) British Malaya and Sarawak, the Dutch East Indies, and French Indochina. By John Tully’s calculations, around 800,000 trees were felled to supply insulation for 1858 transatlantic cable. By the early 20th century, submarine cables had accounted for the destruction of 88 million trees.

Present-day cables rely on another Asian resource: rare earth minerals. China provides 95 percent of the world’s supply of these minerals, which are also used in the manufacture of smartphones, computers and aircraft. In 2015,  a BBC story  describing the environmental effects in Baotou, Inner Mongolia, said it felt ‘like hell on Earth’.

If distant environmental effects are part of the political ecology of submarine cables, so too are the – intensifying – uses of the oceans that pose direct threats to them. Cables are at risk of accidental damage from shipping, fishing, oil and gas extraction, and deep sea mining; as well as, crucially, damage that may be intentionally caused as an act of terror or war. They are at risk, furthermore, from the effects of climate change, such as alterations in temperature and currents, and extreme weather events. They may be put to covert uses such as espionage, or be tapped or hacked themselves. International law offers  insufficient protections  against all these threats. Cables lie at the fuzzy legal intersection of private (usually shared) ownership and (global) public interest, and the law – emphasizing the freedom to lay them – offers limited guidance on the rights and responsibilities that follow.

A current venture spearheaded by three international organizations might provide the catalyst for more comprehensive legal regulation. The International Telecommunications Union, UNESCO’s Intergovernmental Oceanographic Commission, and the World Meteorological Organization are  exploring the possibility  of using the vast cable network for ocean climate monitoring and disaster warning. Scientists already use cables in marine research, but the telecommunications cable network could produce data at a much greater scale; thereby perhaps also compensating for their ecological costs. The venture has proceeded slowly since first mooted, as many legal and practical hurdles arise. But this is itself a benefit, for we begin to confront issues long kept out of sight.   

law of the sea essay

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Reflections on the Waters: Law of the Sea Scholarship and Practice

This article introduces a new initiative to the Journal by launching a rolling series of essays that explore and reflect upon law of the sea scholarship and its relationship with practice. At a time of significant peril to our ocean, it is important to reflect upon the role of scholarship, and its capacity to make a difference, not just to the practice of law, but to the wider intellectual development of the law of the sea, its teaching and its engagement with other disciplines.

  • Introduction

The International Journal of Marine and Coastal Law has been at the forefront of law of the sea scholarship for almost four decades. During this time, it has charted many significant developments in both scholarship and practice. Whilst many articles have traced trends in scholarship and advanced ideas and theories about the law of the sea, the Journal has not yet seized the opportunity to reflect directly on the role of scholarship in the law of the sea, and to explore the relationship between scholarship and the practice of the law of the sea. At least until now. I am delighted to introduce a new initiative to the Journal with the launch of a rolling series of articles that explore and reflect upon law of the sea scholarship and its relationship with practice. Over the coming issues, we will publish a series of thematically linked essays on the relationship between scholarship and practice in the law of the sea. We would also like to invite both commentary on these essays and further essays. The law of the sea is a dynamic discipline. So too its scholarship. In both cases discourse, argument and engagement are critical to the development of law and understandings of the law.

The title of this introduction to the series draws upon Vaughan Lowe’s introduction to the very first edition of this journal, known then as the International Journal of Estuarine and Coastal Law . 1 In ‘Reflections on the Waters: Changing Conceptions of Property Rights in the Law of the Sea’, Lowe reflected upon the changing framework of the law of the sea and observed that recent developments, namely, the conclusion of the 1982 United Nations Convention on the Law of the Sea, represent the ‘culmination of a major, almost revolutionary, change in some of the fundamental legal conceptions which are the components of which the Law of the Sea is made’. 2 Following a relatively uncommon discussion of property concepts, combined with more practical insights into the text of the 1982 Convention, Lowe concluded that we are seeing a move towards more custodial- or stewardship-based approaches in the law of the sea. 3 It has taken almost 40 years for the concept of stewardship to secure traction in the text of a law of the sea agreement with its inclusion in the draft text of an agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. 4 If nothing else this highlights the need for scholars to take a long-term view of the evolution of international law, given the often glacial pace of legal developments. More seriously, the article was intended to spark reflections on how the law develops and advances (or not) the just and rationale use of ocean spaces and resources – a topic at the heart of much law of the sea scholarship.

The more recent origins of this series of reflective articles are in an agora hosted by the Interest Group on the Law of the Sea of the European Society of International Law at their annual conference in Stockholm in 2020. The agora was titled ‘law of the sea scholarship and its nature, past, present and future in connection with international law-making’. Taking as a starting point the changed role of the State in international law-making, the Interest Group wished to explore how law-making in the law of the sea has developed in recent times. Treaties remain of paramount importance. Also, the decisions of international courts and tribunals with jurisdiction in the field of the law of the sea, together with the activity of the International Law Commission, remain highly relevant in terms of law-making on law of the sea issues. However, scholarship has also contributed considerably to the crystallisation and development of the law of the sea, but its precise lineaments as an influence remains underexplored. Looking at law-making through the lens of Article 38(1)(d) of the International Court of Justice Statute as a (subsidiary) source of international law, the agora sparked discussions on the contributions of other actors on the law-making process, how law-making was changing, and how this was changing the way we perceive and understand the law of the sea. This is important because if there is a shift away from the State in international law-making, then arguably the values and interests that are infused in the law may change.

The essays in this rolling series are the result of this agora and engagement with other scholars interested in the relationship between scholarship and practice. Before introducing the first essay, some before reflections are provided on how ideas inform the law of the sea more generally.

  • A Sea of Ideas

Our approach to understanding the law of the sea is shaped by the wider intellectual, social and political conditions that surround us and within which the law of the sea operates. If we look back at the history of the law of the sea, we can see how law of the sea scholarship was grounded in the wider epistemological movements of the time. Grotius worked within a natural law paradigm. 5 Later, Vattel advanced positivist versions of the same discipline. 6 And later still other variants of legal theory have left their mark on law of the sea scholarship: realism, 7 critical scholarship, 8 social idealism 9 and so on. Yet it is not just schools of thought but wider social movements and technological change that shape how and why we research. International law is formed at the margins between States, and around the transactions between States, so it is unsurprising that law of the sea, as a major space between States, has been a significant site for the creation of international law. In its early days, the law of the sea was vague, incomplete, a space waiting to be filled with ideas and jurisprudence. It was a site of contestation. Here the writings of publicists were at the forefront of framing legal claims over the seas. Law of the sea remains contested, but with so much of the law ‘settled’, scholars often seem to be expending more effort on the detail than the grand ideas.

It is important to reflect upon our scholarship, but, surprisingly, there is remarkably little written explicitly about law of the sea scholarship. There are some essays on the scholarship of international law that we can draw upon, 10 but little that is concerned primarily with the law of the sea and even this is more concerned with the law than how we approach our scholarship. 11 Similarly, there is a dearth of scholarship that methodically appraises theories or theoretical accounts of the law of the sea. There are many articles that draw upon theory to advance our understanding of the law of the sea, but there is, as yet no systematic treatment of this. There are articles that reflect upon how different theories or approaches to law of the sea have been used, 12 but, again, no systematic treatment of this. Again, existing literature is part of wider international legal scholarship or rooted in other traditions, such as history, 13 economics, 14 international relations 15 or political geography. 16 Occasionally, there is some weaving together of different disciplinary approaches, but this typically displays a rather pragmatic approach to theoretical synthesis, as for example in Johnston’s work on boundaries, 17 unless one thinks of pragmatism as a theoretical approach. This might suggest there is nothing theoretically or conceptually discreet about law of the sea scholarship. Indeed, if we look at a leading textbook on law of the sea, Churchill and Lowe, the authors observe the influence of wider theoretical developments on the classical literature on law of the sea, but suggest these are more rhetorical tools employed by jurists than efforts to work within defined intellectual structures. 18 Notably there is little subsequent concern for theory in the rest of the textbook. This echoes very much Allott’s earlier observations on international law method. 19 Perhaps there is more to pragmatism than meets the eye. 20 And by pragmatism, I mean an approach which favours argumentative position rather than methodological purity or coherence, or even a slavish respect for the nuances of historical context. 21 This much is evident in how the concept of piracy was developed. 22

This begs many questions: Is the law of the sea merely a branch of international law and so shaped only by its larger progenitor? Can and should law of the sea evolve in a different way? And if scholarship is to evolve, then how and under what influences? Speaking as a scholar, it would seem that a fundamental challenge is to understand and respond to the reality of our situation. If we work with mundane constraints on our time and resources, surrounded by powerful sets of ideas, then how do we frame our thinking and renew our scholarship, and make a difference? Do we simply regurgitate old ideas in new clothes? Can we truly resist and challenge old ideas? Can we make our scholarship matter?

It is a sign of maturity in a discipline that scholars engage in these questions and think deliberately about how and why they do it. 23 Occasionally there are inspired bouts of self-reflection by international legal scholars as, for example, provoked by Cassese’s Realizing Utopia: The Future of International Law . However, these are infrequent reflexive exercises and often concerned with the capacity of scholarship to leverage change in the law or to make a difference to the world. As Francioni, a contributor to Cassese’s collection, observes:

Legal scholarship in the field has not been of much help either in overcoming these normative limits of international environmental law. Study and research in environmental law and policy have proliferated, giving rise to countless specialized journals, books, and even specialized law faculties. But this has produced an increasingly fragmented scholarship, overspecialized in distinct areas of the law, self-concluded and self-referential, with a strong ‘militant’ attitude and yet unable to bring the environmental value to the top of the globalization agenda, where economic growth and development still dominate. 24

One might not agree with Francioni’s harsh critique, not least given the significant contributions made to thinking about the precautionary approach or the development of ecological and ecosystem-based approaches that are making meaningful difference to marine environmental governance. 25 However, the main point is that we should be robust and confident enough in the maturity of our scholarship to respond to such critiques. It should be a spur to action.

It is not a sign of weakness for scholars to reflect critically upon their role qua scholars. We question what we do not just because we are concerned about our capacity to influence, but because we may be concerned not to be become complicit in the injustices with which international law is implicated. By engaging and working with the law, one risks legitimising the subject matter. On a similar note, Feichtner asks: ‘How can I as an international lawyer, conscious that international law is deeply implicated in today’s global injustices and that the course of history will not be changed by any grand legal design, practice law responsibly’. 26 This brings into sharp relief some of tensions inherent in and between the practice and scholarship of the law.

It would be hard to counter the idea that the law of the sea is a mature discipline. And so the time is ripe, if not overdue, for some critical reflection on the state and future of law of the sea scholarship. And how it engages with practice. At the agora, we asked a series of questions: What are the main characteristics of law of the sea scholarship? Do these characteristics differ from other areas of international law? Are scholars more often connected to practice and practitioners themselves? Has law of the sea legal scholarship mainly been focussed on doctrinal legal research? And if so, why? And should this continue? When it comes to interdisciplinary research, what are the main characteristics of this in law of the sea scholarship? How does legal research engage with and make use of methods and approaches drawn from the wider social sciences? What can the social sciences do and mean for future law of the sea related research? Has the nature of law of the sea scholarship changed, from past, to present? And will scholarship likely evolve in the future? If so, how might law of the sea scholarship evolve?

Some of these questions were addressed during the agora discussions, but not all of them. And, as is the nature of scholarship, many of the answers were left open. The aim of this series of thematic essays is to keep these questions alive and stimulate continued interest in and awareness of the state of our discipline. An invitation is extended to scholars and practitioners in and beyond the law of the sea to reflect on these issues, and to contribute to debates about what we do and how. This can be done directly through discrete essays, but also through engagement with the ideas in essays that might be focused on specific issues or challenge in the law of the sea. 27

  • Penelope J Ridings: The Influence of Scholarship on the Shaping and Making of the Law of the Sea

The first essay in the series is written by Dr Penelope J Ridings. Dr Ridings is a practising barrister and legal adviser to the Western and Central Pacific Fisheries Commission. She is Honorary Professor of Law at the University of Auckland and is a Member-Elect of the International Law Commission. As a former legal advisor in the government of New Zealand and a diplomat, she has a wealth of experience on international law in action. Having published several articles on the law of the sea, 28 she is uniquely placed to offer insights into the relationship between scholarship and practice in the law of the sea.

Dr Ridings explores the capacity of law of the sea scholarship to generate changes in the law. In doing she seeks to challenge or at least nuance the orthodoxy that international law of the sea is State made. She situates scholarship within Article 38(1)(d) of the Statute of the International Court of Justice, but introduces into this context the idea of law of the sea scholarship as a community of practice. Drawing upon the work of Etienna Wenger, she presents this community as a self-identifying ‘epistemic community which engages in discussions, shares information and builds relationships to learn from each other, and they engage either directly or indirectly in the practice of law of the sea’. 29 By engaging in the practice of law this community is able to help produce and maintain legal understandings. 30 This enables us to discern a more nuanced relationship between scholarship and the ‘formal’ sources of international law. She continues to examine the influence of scholarship on the law of the sea by showing the direct and indirect entry points of law of the sea scholarship into the law of the sea. These include the opportunities for academic writing to feature in litigation, and, to a limited extent, international jurisprudence. Scholarship may also influence treaty negotiations, and the development of soft-law instruments. Whilst the full extent of the influence of such contributions is hard to measure, it is important to acknowledge that the formal sources thesis of Article 38 does not fully account for such contributions. She then goes on to consider the ‘push-pull forces’ between scholarship and practice. Sometimes scholarship is ahead of the curve and pushing for change that is required to respond to gaps or deficiencies in the law. The work of the ILA Committee on International Law and Sea Level Rise, 31 and latterly the ILC Study Group on Sea-level Rise, 32 is an excellent example of this. Whilst Ridings is sensitive to the different roles of scholars and formal law makers, and the calls for ‘reflexive’ distance between scholarship and practice’, she takes the view that constructive engagement between the communities is vital to the development of international law:

A community of practice of law of the sea where there is a convergence and cross-fertilisation of thought and where scholars recognise the reality of the inter-relationships between scholars and practitioners may provide a vehicle for more promising interaction and influence of scholarship on the law of the sea. 33

At a time off unprecedented challenges to the marine and global environment one might question the value of introspection about our scholarship. But this would be to ignore not only the need for innovative thinking about how best to address challenges, but the importance of having other voices feed into the law creation process, even if indirectly. It should also stimulate thinking about the virtue of scholarship for its own sake and the role this plays beyond practice. Dr Ridings’ thoughtful essay launches what we hope will be an unusual but important opportunity for scholars and practitioners to reflect on the motives for their work, their methods and methodology, and to engage constructively in the discussions about the future of the law of the sea. By turning our critical gaze on our own work we might challenge our preconceptions about what we do, how we do it and why. Indeed, we should actively embrace the opportunity to challenge what we do because simply doing the same, and the same again, is not good enough. We need to evolve our scholarship in response to wider changes in the material and social conditions that shape our ocean. We look forward to the ideas and debates we hope this sparks.

AV Lowe, ‘Reflections on the waters: Changing conceptions of property rights in the law of the sea’ (1986) 1 International Journal of Estuarine and Coastal Law 1–14.

D Freestone and KK Morrison, ‘The signing of the Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea: A new paradigm for high seas conservation?’ (2014) 29 International Journal of Marine and Coastal Law ( IJMCL ) 345–362.

See the preamble and Article 5(k) of the Further revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A / CONF .232/2022/5, 1 June 2022. The term ‘stewardship’ was innovated in the text of the Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea, a non-binding political commitment. See Freestone and Morrison (n 3).

H Grotius, Mare Liberum 1608 , trans RVD Magoffin (Oxford University Press, Oxford, 1916); similarly, S Puffendorf, De jure naturae et gentium libri Octo (1688), trans Oldfather (Clarendon Press, Oxford, 1934) 561–562.

E de Vattel, Le Droit des Gens (1758) , trans Fenwick, The Classics of International Law (Carnegie Institution, Washington, DC, 1916) 106–107.

MS McDougal and WT Burke, The Public Order of the Oceans (Yale University Press, New Haven, 1962).

C Mieville, Between Equal Rights. A Marxist Theory of International Law (Brill, Leiden, 2004); E Jouannet, The Liberal-Welfarist Law of Nations: A History of International Law (Cambridge University Press, Cambridge, 2012); S Pahuja, Decolonizing International Law: Development, Economic Growth and the Politics of Universality (Cambridge University Press, Cambridge, 2011); N Tzouvala, Capitalism as Civilisation: A History of International Law (Cambridge University Press, Cambridge, 2020).

P Allott, ‘ Mare Nostrum : A new international law of the sea’ (1992) 86(4) American Journal of International Law 764–787; P Allott, ‘Power sharing and the law of the sea’ (1983) 77(1) American Journal of International Law 1–30.

I Feichtner, ‘Realizing utopia through the practice of international law’ (2012) 23 European Journal of International Law 1143–1157; A Peters, ‘Realizing utopia as a scholarly endeavour’ (2013) 24 European Journal of International Law 533–555.

JK Gamble Jr, ‘Where trends the law of the sea?’ (1981) 10 Ocean Development & International Law 61–91.

V De Lucia, ‘Ocean commons, law of the sea and rights for the sea’ (2019) 32 Canadian Journal of Law & Jurisprudence 45–57.

TW Fulton, Sovereignty of the Sea (William Blackwood and Sons, Edinburgh, 1911).

P Hallwood, Economics of the Oceans: Rights, Rents and Resources (Routledge, London, 2014).

JCF Wang, Handbook on Ocean Politics & Law (Greenwood, 1992).

MI Glassner, Neptune’s Domain: A Political Geography of the Sea (Unwin Hyman, London, 1990); PE Steinberg, The Social Construction of the Ocean (Cambridge University Press, Cambridge, 2001).

DM Johnston, The Theory and History of Ocean Boundary-Making (McGill-Queen’s University Press, Montreal, 1988).

RR Churchill, AV Lowe and A Sander, The Law of the Sea (4th ed., Manchester University Press, Manchester, 2022) 10.

P Allott, ‘Language, method and the nature of international law’ (1971) 45 British Yearbook of International Law 79.

R Higgins, ‘Final Remarks’ (2005) 16 European Journal of International Law 347.

See for example, DJ Bederman, ‘Foreign Office international legal history’ in M Craven, M Fitzmaurice and M Vogiatizi (eds), Time History and International Law (Brill, Leiden, 2007) 43–63.

G Simpson, ‘Piracy and the origins of enmity’ in Craven et al. , ibid. , 219–230.

E Fisher, B Lange, E Scotford and C Carlarne, ‘Maturity and methodology: Starting a debate about environmental law scholarship’ (2009) 21 Journal of Environmental Law 213.

F Francioni, ‘Realism, utopia, and the future of international environmental law’ in A Cassese (ed), Realizing Utopia: The Future of International Law (Oxford University Press, Oxford, 2012) 442–460, 456.

See, for example, the important work of the Intergovernmental Panel on Climate Change ( IPCC ): IPCC , Special Report on the Ocean and Cryosphere in a Changing Climate [H-O Pörtner et al . (eds)] (Cambridge University Press, Cambridge, 2019).

I Feichtner, ‘Critical scholarship and responsible practice of international law: How can the two be reconciled?’ (2016) 29 Leiden Journal of International Law 979–1000.

See, for example, D Vidas and D Freestone, ‘Legal certainty and stability in the face of sea level rise: Trends in the development of State practice and international law scholarship on maritime limits and boundaries’ (2022) 37 IJMCL 673–725.

See, for example, P Ridings, ‘Labour standards on fishing vessels: A problem in search of a home?’ (2021) 22(2) Melbourne Journal of International Law 308; P Ridings, ‘Redefining environmental stewardship to deliver governance frameworks for marine biodiversity beyond national jurisdiction’ (2018) 75 ICES Journal of Marine Science 435–444; P Ridings, ‘The intervention procedure in Whaling in the Antarctic : A threat to bilateralism?’ (2014) 32 Australian Yearbook of International Law 97–112.

PJ Ridings, ‘The influence of scholarship on the shaping and making of the law of the sea’, IJMCL , this issue, p. 19. See also E Wenger, ‘Communities of practice a brief introduction’ available at https://wenger-trayner.com/introduction-to-communities-of-practice ; accessed 9 July 2022.

See also J Brunnée and SJ Toope, ‘Interactional international law: An introduction’ (2011) 3(2) International Theory 307–318.

D Vidas, D Freestone and J McAdam, International Law and Sea Level Rise (The 2018 Report of the ILA Committee on International Law and Sea Level Rise) (Brill Nijhoff, Leiden, 2019).

International Law Commission, First issues paper by B Aurescu and N Oral, 72nd Session of the ILC (2021).

Ridings (n 29), p. 36.

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law of the sea essay

  • International Law

Law of the Sea: An Inclusion of Treaties & Customary Laws

sea

Tanya Agarwal , 3rd Year B.A. LLB (Hons), Amity Law School, Delhi (GGSIPU). The following article explores the relationship of states with respect to the oceans and sea under Public International Law.

Table of Contents

Introduction

Law of the sea is also known as Maritime law which is that branch of public International Law which regulates the rights and duties concerning the regulation of states with respect to the sea. It governs the legal rules regarding ships and shipping. It is one of the principal subjects of international law and is a mixture of the treaty and established or emerging customary law.

The law of the sea forms the basis of conducting maritime economic activities, the codification of navigation rules and to protect oceans from abuse of power. It covers rights, freedoms and obligations in areas such as territorial seas and waters and the high seas, fishing, wrecks and cultural heritage, protection of the marine environment and dispute settlement.

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The genesis of Law of Sea

Grotius also known as the father of modern International law, led to the formulation of maritime law which is one of the recently developed branches of International Law. During the 17 th century, the doctrine of “freedom-of-the-seas” emerged wherein it was considered that the seas were free to all nations but belonged to none of them. The Law of the sea has always been in a state of flux, changing and creating a new regime as per the state’s own will.

There existed certain tension between “the free sea” and “the closed sea” which waned for centuries, generally with the powerful states arguing that the sea was free to all, and the smaller States arguing for transnational limitations on what maritime powers could do to navigate the oceans and exploit their resources.

It was during the 20 th century due to vast development in the technology and the commerce department, many nations began to make jurisdictional claims so that they could protect their interest and the gradual enlargement of territorial sea initiated the need for the codification of the law to create uniformity.

Over a series of discussions and conferences, four conventions on the law of seas evolved in 1958, namely called Geneva convention on the law of sea developed but the conventions failed to address several issues like the urgent need to regulate the usage of minerals of the deep sea beds and high sea.

In 1982, the third UN conference adopted the Convention on the Law of the Sea (UNCLOS) consisting of 320 articles and 9 Annexes, along with 4 resolution. A significant portion of the convention was a replica of the old Geneva convention however several new factors were also dictated which are as follows:

  • It expanded the scope regarding the matters of the new legal regime of the deep sea bed and economic zones.
  • The territorial sea now extended up to 12 nautical miles limit.
  • In cases of dispute, the convention provides compulsory judicial settlement at the request of one of the parties.
  • The convention also describes the formation of an international tribunal of the law of the sea for helping in settlements of disputes.
  • The convention also deals with the regime of archipelagic states, the waters between the islands are declared archipelagic waters, where ships of all States enjoy the right of innocent passage.

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Major Maritime zones along with the rights and duties provided under the specific zones

Territorial seas.

It is that part of the sea which is directly next to the coastline and bounded by the high seas. Article 2 of the Geneva Convention on the Territorial Sea and UNCLOS Article 3 both express that states exercise sovereignty over this zone subject to the provisions of the respective conventions and other rules of international law. This was intended to highlight that the limitations upon sovereignty in this area set out in the Convention are non-exhaustive. The territorial sea forms an undeniable part of the land territory to which it is bound so that a cession of land will automatically include any band of territorial waters.

According to UNCLOS, it is believed that every coastal state has Territorial sea. The sovereignty of the coastal state extends to the seabed and subsoil of the territorial sea and the airspace above it. The coastal States exercise a wide variety of exclusive power over the territorial sea which depends largely on the municipal law rather the international system. Coastal states can control the entry of foreign vessels from trading or fishing activities to preserve it for their own citizens.

a.  Width of the Territorial sea

Width of the territorial sea up to which the states can exercise sovereignty has been subjected to a long line of historical development. Initially, it started with the “cannon-shot” rule wherein it stated that width requirement in terms of the range of shore-based artillery, however during the 19 th century it changed to 3-mile rule by the Scandinavians claimed 4 miles.

The limit to exercise jurisdiction over the territorial sea became clear only after the first world war, Article 3 of the 1982 Convention, however, notes that all states have the right to establish the breadth of the territorial sea up to a limit not exceeding 12 nautical miles from the baselines. This is clearly in line with state practice. For determining the measurement of this range two methods have been laid down which are as follows:

Low water line

It was the Anglo Norwegian Fisheries case which propounded the principle regarding the determination of the baseline w.r.t geographical realities. In this case, the method applied by the Norwegians affected the fishing interest of UK because the straight baseline method applied then created a chance to cover those parts of the sea which belonged to High sea zone.

The court upheld the straight baseline method applied by Norway due to the peculiar nature of its coastline. The method that determines the rule regarding the 12 Nautical miles limit depends mainly on the nature of the state’s geographic position, normally Low water line is preferred however in cases of countries like Norway straight baseline method can be applied.

b. The Right of Innocent Passage

The right of foreign merchant ships (as distinct from warships) to pass unhindered through the territorial sea of coast has long been an accepted principle in customary international law, the sovereignty of the coast state notwithstanding.

UNCLOS  in its Article 19 provides for an exhaustive list of activities for which the passage is considered as innocent, the main factor to keep in mind is peace, good order, or security of the coastal State. Article 24 prohibits coastal States from hampering the innocent passage of foreign ships through the territorial sea unless specifically authorized by other Articles of the LOSC.

Discrimination among other states or cargoes is prohibited for the Coastal States, however, when it is found to be that any foreign Ship has committed any violation of the aforesaid rule of the convention, the coastal states have the power to forbid entry of such ship or take any measures as they deem necessary for their security.

Other aspects of the territorial sea are:

  • Internal water

As per Article 8 of UNCLOS , internal waters include that part of the sea which does not belong to either the high seas or the territorial rather covers all the waterways on the landward side of the baseline. One of the major differences between the Territorial sea and the internal water is that there exists no right of innocent passage in case of the former.

Bays are one of the major complex issues under maritime laws, it may enclose a line which leaves internal waters on its landward side and provides a baseline for delimiting the territorial sea.

The 1958 convention defines Islands consist of a naturally formed area of land, surrounded by water, which is above water at high tide. These islands are capable of forming continental shelf zone, Exclusive Economic zone, Contiguous zone, territorial sea zone however if there is no habitat capable of surviving on an island it may not form EEZ. Where there exists a chain of islands which are less than 24 miles apart, a continuous band of the territorial sea may be generated.

  • Archipelagic states: Group of Islands

The states having above such characteristics has sovereignty over the waters enclosed by the baselines subject to limitations created by the provisions of this Part of the convention. These limitations consist of the right of innocent passage for ships of all states, and, unless the archipelagic state designates sea lanes and air routes, the right of archipelagic sea lanes passage through the routes normally used for international navigation.

Contiguous zone

It is that part of the sea which is located beyond and adjacent to the territorial waters of the coastal states. The development of this zone arose due to the need of the state to strengthen its regulation over the territorial sea.

It extends up to 12 nautical miles from the territorial sea, the object of this zone is only for certain purposes as provided in the article 24 of the convention like to prevent infringement of customs, immigration or sanitary laws of the coastal state, or to conserve fishing stocks in a particular area, or to enable the coastal state to have exclusive or principal rights to the resources of the proclaimed zone. The formation of this zone is only for special purposes as prescribed in the convention, it does not provide any air and space rights to the states.

Exclusive Economic Zone (EEZ)

The object for this zone arose due to controversy regarding fishing zones. Due to a lack of regulation of limit regarding fishing zone, states began to claim the wide depth of region under this zone. In the case of Tunisia vs Libya , the court regarded that the concept of Exclusive Economic Zone can be associated as a part of Customary International Law. Article 55 of the UNCLOS describes the extension of this region from the baseline is up to 200 nautical miles from the breadth of the territorial sea.

In the case of Coastal states as per article 56 of the convention, these states have sovereign rights over the Exclusive Economic Zone for the purpose like:

  • Exploiting and exploring, conserving and managing natural resources
  • For the establishment of an artificial island, Marine Scientific research

iii. Other rights as specified in part IV of the convention.

In case of other states, it provides rights and duties of that which can be compared to the high seas such as freedom of navigation, laying of pipelines and submarine cables, they have to keep in mind the rights and duties of Coastal states during the exercise of their own power.

Continental Shelf

This zone arose due to the concept of Geography wherein as per 1982 convention, it includes a natural seaward extension of a land boundary. This seaward extension is geologically formed as the seabed slopes away from the coast, typically consisting of a gradual slope (the continental shelf proper), followed by a steep slope (the continental slope), and then a more gradual slope leading to the deep seabed floor. The limit up to which its length extends up to 200 nautical miles.

These three areas, collectively known as the continental margin, are rich in natural resources, including oil, natural gas and certain minerals.

The coastal states exercise an extensive sovereign-rights over this zone for the purpose of exploiting its resources. The coastal state may, under article 80 of the 1982 Convention, construct and maintain installations and other devices necessary for exploration on the continental shelf and is entitled to establish safety zones around such installations to a limit of 500 metres, which must be respected by ships of all nationalities.

EEZ and Continental shelf is almost similar in nature however the major point of difference between the two is that under the 1982 convention a continental shelf can exist without an EEZ but there cannot be an EEZ without the demarcation of the Continental shelf.

a. Delimitation of the continental shelf

The measurement of the range of this zone has led to several controversies and a long line of legal custom that has led to the need for the evolution of this concept. In the case of Nicaragua vs Honduras, the international court has dictated on the importance of the establishment of a maritime boundary.

The concept of the median line has been used to determine the delimitation of the territorial sea within the opposite and the adjacent coast. Initially, the issue was taken up in the North Sea Continental Shelf cases, wherein the Court took the view that delimitation was based upon consideration and weighing of relevant factors in order to produce an equitable result.

Later, in the case of Libya Vs Malta , the Court emphasised the close relationship between continental shelf and economic zone delimitations and held that the appropriate methodology was first to provisionally draw an equidistant line and then to consider whether circumstances existed which must lead to an adjustment of that line.

High Seas and Deep Ocean Floor

This includes that region of the sea which exists beyond the EEZ and does not form part of the territorial sea. The essence of this region is that no state acquires any sovereign right over this zone. As per the Article 87 of the 1982 Convention, high seas are open to all states and that the freedom of the high seas is exercised under the conditions laid down in the Convention and by other rules of international law. The jurisdictional right in case of high seas depends upon the nationality of the ship, and the consequent jurisdiction of the flag state over the ship.

It is for the flag state to determine rules and regulations therefore a ship without a flag will be excluded from the privilege under this zone. This was also highlighted by the Permanent Court of International Justice in the Lotus case , where it was held that ‘vessels on the high seas are subject to no authority except that of the state whose flag they fly.’

Law of the sea is concerned with public order at sea which has been codified in the form of United Nations Convention on the Law of the Sea and signed on December 10, 1982. It provides rules and regulations that helps to maintain peace and security over the usage of the sea.

The code provides a set of comprehensive rules which divides the oceanic region into 5 maritime zones and it has set the limit to 12 nautical miles for the coastal states to exercise their sovereignty without any conflict. It aims to resolve the dispute amicably with the help of international tribunal for the law of the sea.

  • The fletcher School, Law of Sea: Policy Primer, Available at https://sites.tufts.edu/lawofthesea/chapter-one/
  • available at: https://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm#Key%20provisions
  • he fletcher School, Law of Sea: Policy Primer, Available at https://sites.tufts.edu/lawofthesea/chapter-three/
  • PCIJ, Series A, No. 10, 1927, p. 25; 4 AD, p. 153.
  • http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm
  • https://www.icj-cij.org/en/case/68
  • Applying mutatis mutandis Article 60, which deals with the construction of artificial islands, installations and structures in the exclusive economic zone.
  • ICJ Reports, 1982, Pg. 18.
  • https://www.icj-cij.org/en/case/120
  • http://www.worldcourts.com/icj/eng/decisions/1982.02.24_continental_shelf.htm
  • James Crawford, Brownlie Principles of Public International Law (8th Edition)
  • Grisbadarna case, 11 RIAA, p. 147 (1909) and the Beagle Channel case, HMSO, 1977; 52 ILR, p. 93.
  • Available at: https://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm#Key%20provisions
  • https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

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Law of the Sea: An Overview

Profile image of Mashfiq Tamim

Conventions on the Law of the sea were a much needed issue. With the development of the sciences and technologies the states were becoming able to explore and navigate the sea. Again there were states which unilaterally were declaring to take control of different seas and oceans. It became a demand of the time to have internationally accepted laws regarding the law of the sea.

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law of the sea essay

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Regional strategies to maritime security: A comparative perspective

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Danial A Kaysi

This paper will discuss the political and legal aspects of the maritime disputes in the Eastern Mediterranean and the factors relevant to their conciliation. The first part of the paper introduces the Mediterranean Sea and the relevance of the Exclusive Economic Zone (EEZ) regime in its basins. Subsequently, the author summarizes relevant historical cleavages in the Levant Basin, with a focus on relevant modern Lebanese-Israeli, Lebanese-Syrian and inter-Cypriot events. Part III will discuss the increasing interest in EEZ delimitation over the past decade due to hydrocarbon prospects in the Eastern Mediterranean and the geopolitical and maritime challenges that have since taken shape. Finally, based on the Law of the Sea and previous examples from around the world, the author discusses relevant legal avenues for achieving balanced solutions to maritime tensions in the region and presents the most relevant criteria in delimiting maritime boundaries.

Faruk Ahmmed

For centuries, the law of sea was based on the concept of freedom of the seas, with nations' control of the oceans limited to narrow bands adjacent to their coasts. It was primarily based on customary law; international agreements were likely to involve a small number of states or cover a particular region. By the middle of the twentieth century, as the nations increased their capability to engage in long range fishing and commercial extraction, concerns arose about pollution and the exhaustibility of ocean resources. In addition, the concept of freedom of the seas was eroding, as many nations had asserted sovereignty over wider areas, claiming rights to the resources of the continental shelf and the water above. It became necessary to develop a treaty-based regime for ocean governance. A series of United Nations conferences on the law of the sea, convened in 1958, 1960 and 1973-1982, produced a number of treaty agreements and the Third Conference culminated in the adoption in 1982 of a comprehensive treaty instrument, the United Nations Convention on the Law of Sea.

Pavel Gudev

The US has traditionally played a key role in the protection of rules of international law, including the use and exploitation of oceans space and resources. The US struggle with other states excessive maritime claims is carried out in the framework of the Freedom of Navigation Program (FON). Its implementation is crucial not only for ensuring the US commercial and economic interests, but strategic and war ones also. First, it guarantees the opportunity for American armed forces' rapid transfer by sea. However, in their fight against such kinds of threats like nuclear proliferation, piracy, maritime terrorism, which are a challenge to all countries of the world community, the United States directly violates the rules and provisions of the 1982 UN Convention on the Law of the Sea (UNCLOS). Moreover, the US's desire to ensure for itself a priority level of naval and intelligence activities leads Washington to a broad interpretation of conventional rules. As a result, the US non-participation in the 1982 UNCLOS combined with continuous enforcing of other states Convention rules defines the US ocean policy as globally contradictory and inconsistent. Presently, additional economical and political incentives have appeared, motivating Washington to revise its policy with respect to the fundamental international sea-law document. At the same time, the prospects of its accession to the 1982 UNCLOS, and in a broader sense, adjustment of approaches to the issues of the ocean's space control will depend on the balance of internal powers advocating different options of global strategy.

Olú Abíkóyè

The Law of the Sea reflects the competing interests of Nations over the resources of the oceans since humanity first set forth upon the seas. The sovereign control over the oceans has been an ongoing concern prior to the 20th century under the concept of Mare Liberium and Mare Clausum. This principles developed and limited national rights and jurisdiction over a narrow band of water along a nations’ coast, with the rest of the sea free to all and belonging to none. With the technological developments of the 21st century which allows the exploitation of ocean resources that had never before been envisioned and accessible, there was a need to preserve the High Seas with its unimaginable rich resources as the common Heritage of Mankind. Nations began to negotiate their interests in the oceans and a universal regime known as UNCLOS III was agreed upon. These events display the fine blend of applied international law, politics and selfish economic interests as related in notable decisions of the ICJ. Today, there are new issues to be dealt with starting with pollution, the inevitable and intensive exploitation of high seas in the face of the 1994 Implementation Agreement, increasing jurisdictional claims amongst others. This research work analyses the making of UNCLOS III, dispute settlement mechanism, sustainable use of the oceans and the Nigerian Maritime Sector. This research work concludes with the arguments whether or not UNCLOS III has come to stay as the world legal order on the sea and proffer recommendations.

Zenonas Tziarras

Since the U.S. is still the world’s sole superpower, its participation in international conventions is very important for both itself and the better function and implementation of the various International Legal Frameworks. As such, a possible future ratification of the [Law of the Sea] Convention by the U.S. would have broad politico-legal implications for other states and areas in the world, where the Treaty has not been signed or ratified and maritime disputes are in place. One such region is the Eastern Mediterranean. This paper firstly looks at the development of the Law of the Sea, the contested provisions of UNCLOS III in the Eastern Mediterranean disputes, and then focuses specifically on Greece, Turkey, Cyprus, and Israel, with regard not only to traditional maritime territorial disputes but also recent developments in the bilateral relations of these countries and in the region, more generally. The analysis concludes with the obstacles that the American politics pose to the ratification of UNICLOS III by the US.

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Freedom of the Seas: Bibliography

Freedom of the Seas, 1609: Grotius and the Emergence of International Law An exhibit marking the 400th anniversary of Hugo Grotius's Mare Liberum

The Development of the Law of the Sea in the 17th Century: A Bibliography of Modern Scholarship Compiled by Edward Gordon

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Alexandrowicz, C.H. "Freitas versus Grotius," 35 British Yearbook of International Law 162 (1959).

Allen, E.W. "Freedom of the Seas," 60 American Journal of International Law 814 (1966).

Alsop, J.D. "William Welwood, Anne of Denmark and the Sovereignty of the Sea," 49 Scottish Historical Review 171 (1980).

Amaral, Sylvino Gurgel do. "Le ‘Mare Liberum' et ses adversaries", in Hugo Grotius: Essays on His Life and Works Selected for the Occasion of the Tercentenary of His ‘De Jure Belli ac Pacis' 1625-1925 (A. Lysen ed.; Leyden: A.W. Sythoff, 1925). [Translated from the Portuguese, where it appeared in the author's Ensaio subre a vide e obras de Hugo de Groot (Grotius) (Rio de Janeiro-Paris, 1903).]

Anand, R.P. Origins and Development of the Law of the Sea: History of International Law Revisited . The Hague: Nijhoff, 1983.

Andrews, Kenneth R. Ships, Money and Politics: Seafaring and Naval Enterprise in the Reign of Charles I . Cambridge: Cambridge University Press, 1991.

Armitage, David. The Ideological Origins of the British Empire . Cambridge: Cambridge University Press, 2000.

Armitage, David, ed. The Free Sea: Hugo Grotius, Translated by Richard Hakluyt; with William Welwood's Critique and Grotius's Reply . Indianapolis: Liberty Fund, 2004.

Blom, Hans W., ed. Property, Piracy and Punishment: Hugo Grotius on War and Booty in De Jure Praedae – Concepts and Contexts . Leiden: Brill, 2009.

Borschberg, Peter. "Grotius, Intra-Asian Trade and the Portuguese Estado da India Problems," in Property, Piracy and Punishment: Hugo Grotius on War and Booty in De Jure Praedae – Concepts and Contexts ( Hans W. Blom, ed.; Leiden: Brill, 2009).

Borschberg, Peter. "The Seizure of the Sta. Catarina Revisited: The Portuguese Empire in Asia, VOC Politics and the Origins of the Dutch-Johor Alliance (1602-ca. 1616)," 33 Journal of Southeast Asian Studies 31 (2002).

Braudel, Fernand. The Mediterranean and the Mediterranean World in the Age of Philip II . New York: Harper & Row, 1972.

Brett, Annabel. Liberty, Right and Nature: Individual Rights in Latin Scholastic Thought . Cambridge: University Press, 1997. [See pp. 165-204, on Vásquez.]

Brito Vieira, Monica. " Mare liberum vs. Mare clausum : Grotius, Freitas, and Selden's Debate on Dominion over the Seas," 64 Journal of the History of Ideas 361 (2003).

Butler, Geoffrey; & Simon Maccoby. The Development of International Law . London: Longmans, Green 1928. [See esp. pp. 40-60, "The World by Sea".]

Butler, W.E. "Grotius and the Law of the Sea," in Hugo Grotius and International Relations (H. Bull, A. Roberts & B. Kingsbury, eds.; Oxford: Oxford University Press, 1990).

Chatterjee, Hiralal. International Law and Inter-State Relations in Ancient India . Calcutta: Mukhopadhyay, 1958.

Christianson, Paul. Discourse on History, Law, and Governance in the Public Career of John Selden, 1610-1635 . Toronto: Toronto University Press, 1996.

Clark, G. N. "Grotius's East India Mission to England," 20 Transactions of the Grotius Society 45 (1935).

Clark, G. N., & van Eysinga, W. J. M. "The Colonial Conferences between England and the Netherlands in 1613 and 1615," 15 Bibliotheca Visseriana 15 (1940).

De Pauw, F. E. R., ed. Grotius and the Law of the Sea (P.J. Arthern, transl.). Brussels: Institut de Sociologie, 1965.

Diesselhorst, Malte. "Hugo Grotius and the Freedom of the Seas," 3 Grotiana (N.S.) 11 (1982).

Dumbauld, E. "Grotius on the Law of Prize," 14 Journal of Public Law 370 (1965).

Edmundson, George. Anglo-Dutch Rivalry during the First Half of the Seventeenth Century . Oxford: Clarendon Press, 1911.

Eysinga, William J. M. van. "Quelques Observations au Sujet du Mare Liberum et du De Jure Praedae de Grotius," 9 Grotiana 60 (1942).

Eysinga, William .M. van. "Le 350ieme anniversaire du ‘De jure Praedae commentarius' de Grotius" [French translation of address of the Royal Dutch Academy of Sciences and Letters, March 24, 1956], in Sparso Collect (Leyden 1958), pp. 358-374.

Fenn, Percy Thomas, Jr. The Origin of the Right of Fishery in Territorial Waters. Cambridge, MA: Harvard University Press, 1926. [See esp. ch. VIII, " Mare liberum versus Mare clausum ."]

Fenn, Percy Thomas, Jr. "Origins of the Theory of Territorial Waters," 20 American Journal of International Law 465 (1926).

Fenn, Percy Thomas, Jr. "Justinian and the Freedom of the Seas," 19 American Journal of International Law 465 (1925).

Fruin, Robert. "An Unpublished Work of Hugo Grotius," 5 Bibliotheca Visseriana 3 (1925). [English translation of a work first published, in Dutch, in 1868.]

Fulton, Thomas Wemyss. The Sovereignty of the Seas: An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters: With Special Reference to the Rights of Fishing and the Naval Salute . Edinburgh: William Blackwood, 1911.

Gepken-Jager, Ella; Gerard van Solinge, & Levinus Timmerman. VOC 1602-2002: 400 Years of Company Law . Deventer: Kluwer, 2005

Goldwin, R.A. "Locke and the Law of the Sea," 71 Commentary 46 (June 1981).

[Grotius, Hugo]. De jure praedae commentaries . I. Commentary on the Law of Prize and Booty. Gwladys L. Williams and Walter H. Zeydel, transl.. II. The Collotype Reproduction of the Original Manuscript on 1604 in the Handwriting of Grotius. 2 vols. Oxford: Clarendon, 1950.

Grotius, Hugo. "Defense of Chapter V of the Mare Liberum ," in 7 Bibliotheca Visseriana 154 (1928). [Originally written between 1613 and 1617.]

Haggenmacher, Peter. "Grotius and Gentili: A Reassessment of Thomas E. Holland's Inaugural Lecture," in Hugo Grotius and International Relations (H. Bull, A. Roberts & B. Kingsbury, eds.; Oxford: Oxford University Press, 1990).

Hakluyt, Richard. The Original Writings and Correspondence of the Two Richard Hakluyts . 2 vols. E.G.R.Taylor, ed. London: Hakluyt Society, 1935.

Holk, L.E. van, & C.G. Roeflofsen, eds. Grotius Reader: A Reader for Students of International Law and Legal History . The Hague: T.M.C. Asser Instituut, 1983.

Ito, F. "The Thoughts of Hugo Grotius in the Mare Liberum ," 18 Japanese Annual of International Law 1 (1974).

Ittersum, Martine van. Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies (1595-1615) . Boston: Brill, 2006.

Ittersum, Martine van, ed. Commentary on the Law of Prize and Booty: Hugo Grotius . Indianapolis: Liberty Fund, 2006.

Ittersum, Martine van. "Dating the Manuscript of De Jure Praedae (1604-1608): What Watermarks, Foliation and Quire Divisions Can Tell Us About Hugo Grotius' Development as a Natural Rights and Natural Law Theorist," 35 History of European Ideas 125 (2009).

Ittersum, Martine van. " Mare Liberum in the West Indies? Hugo Grotius and the Case of the Swimming Lion, a Dutch Pirate in the Caribbean at the Turn of the Seventeenth Century," 31:3 Itinerario 59 (2007).

Ittersum, Martine van. " Mare Liberum versus the Propriety of the Seas? The Debate between Hugo Grotius and William Welwood and the Impact on Anglo-Scottish-Dutch Fishing Disputes in the Second Decade of the Seventeenth Century," 10 Edinburgh Law Review 239 (2006).

Kenworthy, J.M., & George Yound. Freedom of the Seas . London: n.d.

Knight, William S.M. "Seraphin de Freitas: Critic of Mare liberum ," 11 Transactions of the Grotius Society 1 (1926).

Kwiatkowska, B. "Hugo Grotius and the Freedom of the Seas," in Hugo Grotius: 1583-1983: Maastricht Hugo Grotius Colloquium March 31, 1983 (J.L.M. Elders et al., eds.; Van Gorcum: Assen, 1984).

Landwehr, John. VOC: A Bibliography of Publications Relating to the Dutch East India Company 1602-1800 . Utrecht: HGS Publishers, 1991.

Lauterpacht, Hersch. "The Grotian Tradition in International Law," 23 British Yearbook of International Law 1 (1946).

Macrae, L.M. "Customary International Law and the United Nations' Law of the Sea Treaty," 13 California Western International Law Journal 181 (1983).

Meurer, Christian. The Program of the Freedom of the Seas: A Political Study in International Law . Leo J. Frechtenberg, transl. Washington: GPO, 1919.

Molen, G.H.J. van der. Alberico Gentili and the Development of International Law: His Work and Times . Amsterdam: H.J. Paris, 1937. [Later printing: Leyden 1968. See esp. ch. VI, "Questions of International Law."]

O'Connell, D.P. The International Law of the Sea . London: OxfordUniversity Press, 1983.

Oudendijk, J.K. Status and Extent of Adjacent Waters: A Historical Orientation . Leyden: Sijthoff, 1970.

Pagden, Anthony. Lords of All the World: Ideologues of Empire in Spain, Britain and France c.1500-1800 . New Haven: Yale University Press, 1995. [See esp. pp. 56-61 on Vasquez.]

Parks, George Bruner. Richard Hakluyt and the English Voyages . New York: American Geographical Society, 1928.

Piggott, Frances. The Freedom of the Seas Historically Treated . Oxford: printed for the Historical Section of the Foreign Office, 1919.

Porras, Ileana M. "Constructing International Law in the East Indian Seas: Property, Sovereignty, Commerce and War in Hugo Grotius' de Iure Praedae - The Law of Prize and Booty, or on How to Distinguish Merchants from Pirates," 31 Brooklyn Journal of International Law 741 (2005-2006).

Potter, Pitman B. The Freedom of the Seas in History, Law, and Politics . New York: Longmans, Green, 1924. [Reprint 2002. See esp. ch. IV, "The Grotius-Selden Controversy."]

Quinn, D.B. "A Hakluyt Chronology," in The Hakluyt Handbook (D.B. Quinn, ed.; 2 vols.; London: Hakluyt Society, 1974).

Rawlinson, H.G. Intercourse between India and the Western World: From the Earliest Times to the Fall of Rome . Cambridge: University Press, 1926.

Roelofsen, C.G. "The Sources of Mare Liberum ; the Contested Origins of the Doctrine of the Freedom of the Seas," in International Law and its Sources: Liber Amicorum Maarten Bos (W.P. Heere, ed.; Boston: Kluwer, 1988). [Reprinted in C.G. Roelofsen, Studies in the History of International Law: Practice and Doctrine in Particular with Regard to the Law of Naval Warfare in the Low Countries from circa 1450 Until the Early 17th Century (Utrecht: Rijksuniversiteit te Utrecht, 1991).]

Roelofsen, C.G. "Grotius and the International Politics of the Seventeenth Century," in Hugo Grotius and International Relations (H. Bull, A. Roberts & B. Kingsbury, eds.; Oxford: Oxford University Press, 1990). [Reprinted in C.G. Roelofsen, Studies in the History of International Law: Practice and Doctrine in Particular with Regard to the Law of Naval Warfare in the Low Countries from circa 1450 Until the Early 17th Century (Utrecht: Rijksuniversiteit te Utrecht, 1991).]

Roelofsen, C.G. "Grotius and State Practice of His Day," 10 Grotiana 3-46 (1989). [Reprinted in C.G. Roelofsen, Studies in the History of International Law: Practice and Doctrine in Particular with Regard to the Law of Naval Warfare in the Low Countries from circa 1450 Until the Early 17th Century (Utrecht: Rijksuniversiteit te Utrecht, 1991).]

Roelofsen, C.G. Review of Anand, Origins and Development of the Law of the Sea , 31 Netherlands International Law Review 117 (1984).

Rogers, F.M. "Hakluyt as Translator," in The Hakluyt Handbook (D.B. Quinn, ed.; 2 vols.; London: Hakluyt Society, 1974).

Steinburg, Philip G. The Social Construction of the Oceans . Cambridge: University Press, 2001. [See esp. pp. 92 et seq.]

Toomer, G. J. John Selden: A Life in Scholarship . 2 vols. Oxford: Oxford University Press, 2009. [See vol. 1, ch. 12, "Mare Clausum."]

Trevor-Roper, H. From Counter-Reformation to Glorious Revolution . Chicago: University of Chicago Press, 1982.

Vollenhoven, C. The Three Stages in the Evolution of the Law of Nations . The Hague: Nijhoff, 1919.

Vreeland, Hamilton. Hugo Grotius: The Father of the Modern Science of International Law . New York: Oxford University Press, 1917. [See esp. pp. 39-67.]

Wade, Thomas C. "Introductory Essay: The Freedom of the Sea," in Sir John Boroughs, The Sovereignty of the British Seas (Edinburgh: W. Green & Sons, 1920).

Wilkinson, John. "The First Declaration of the Freedom of the Seas: The Rhodian Sea Laws," appendix to Ch. XIX of the same author's paper, "A Tentative Program for Simulation of Historical ‘Ecology' of the Mediterranean," in The Mediterranean Marine Environment and Development of Region (Malta: Royal University of Malta Press, 1974).

Wilson, Eric. Savage Republic: De Indis of Hugo Grotius, Republicanism and Dutch Hegemony with the Early Modern World Systems (c.1600-1619) . Leiden: Martinus Nijhoff, 2008.

Winstedt, Richard; & P.F. De Josselin De Jong, "Maritime Law of Malacca," 29 (Pt. 3) Journal of the Royal Asiatic Society (Aug. 1956).

Wright, Herbert F. "Some Lesser Known Works of Hugo Grotius," 7 Bibliotheca Visseriana 132 (1928). [Four works are reproduced, of which two are translations: one of Grotius's works on fisheries in his controversy with William Welwood, another a translation of extracts from Grotius's letters concerning international and natural law and fisheries. See esp. "Defense of Chapter V of the Mare Liberum."]

Zemanek, Karl. "Was Hugo Grotius Really in Favour of the Freedom of the Seas?", 1 Journal of the History of International Law 48 (1999).

Ziskind, Jonathan. "International Law and Ancient Sources: Grotius and Selden," 35 Review of Politics 537 (No. 4, 1973).

"Freedom of the Seas, 1609: Grotius and the Emergence of International Law," curated by Edward Gordon and Michael Widener, is on display October 2009 through January 2010 in the Rare Book Exhibition Gallery, Level L2, Lillian Goldman Law Library, Yale Law School.

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United Nations Convention on the Law of the Sea

law of the sea essay

The Law of Nature at Sea

The "law of the sea," mostly remembered as a peripheral concern, was once a centerpiece of foreign policy.

When serving as President Jefferson’s Secretary of State, James Madison published a book on the law of the sea. Examination of the British Doctrine argues that the Royal Navy’s interference with American shipping on the high seas was in violation of the law of nations. It starts with the doctrines of the 17th-century Dutch jurist Hugo Grotius. It then proceeds to canvas the views of the Swiss diplomat Emer de Vattel, the German jurist Samuel Pufendorf, and other eminent authorities, before reviewing the decisions of British prize courts. The book is longer than all of Madison’s contributions to the Federalist Papers combined. It was less persuasive than that earlier work, however, at least with its most relevant audience. As a congressional critic said at the time, it was “a shilling pamphlet against 800 British ships of war.”

David Bosco’s Poseidon Project also starts with Grotius and the ongoing American interest in “freedom of the seas.” It is hardly a criticism to say Bosco, professor of international studies at Indiana University, does not seem as learned or acute as James Madison. His book is disappointing in other ways, however, that were not as unavoidable. The book does have the merit of taking the story up to the 21st century. Bosco shows how issues that Madison confronted were addressed by later generations. And he shows how central these issues have been both to American geo-strategy and the outlook of many nations on international law. The Poseidon Project covers a lot of ground in a brisk, engaging narrative, making it much more appealing than most academic offerings.

Before getting to the disappointments, it’s worth illustrating the charms of this account. By focusing on the law of the sea, Bosco makes particular issues, often now remembered as peripheral concerns, regain the importance—or at least the rhetorical urgency—they had in earlier times. We recall, for example, Woodrow Wilson’s claim to be fighting in Europe to “make the world safe for democracy.” But as Bosco notes, when President Wilson asked Congress to declare war on Germany in April of 1917, what he emphasized was the ”sacred” claim to travel the high seas without threat, as recognized by international law. He then proceeded to depict the U.S. resort to war as a defense of international law:

International law had its origin in the attempt to set up some law which would be respected upon the seas, where no nation had right of domination and where lay the free highways of the world.

Germany’s U-boat attacks on neutral shipping were therefore, Wilson proclaimed, “warfare against mankind.”

Wilson found it easy to make anything he favored into a “sacred” principle. But as Bosco reminds us, President Franklin Roosevelt adopted similar rhetoric in the spring of 1941, explaining why the U.S. Navy was being deployed to protect merchant ships bound for Britain.

All freedom—meaning freedom to live, and not freedom to conquer and subjugate other peoples—depends on freedom of the seas. All of American history—North, Central, and South American history—has been inevitably tied up with those words, “freedom of the seas.”

One complication for American statesmen was that the rules regarding lawful conduct on the high seas were not set out in any overarching treaty. As late as the mid-20th century, most of the “law of the sea” was customary practice, documented, clarified (and sometimes enhanced) by decisions of national prize courts, purporting to determine the legality of seizures on the seas in wartime. Well into the 19th century, international law, here as elsewhere, was still seen (as James Kent’s Commentaries put it) as “deriving much of its force and dignity from the . . . law of nature.”

By the late 19th century, however, international lawyers had become doubtful of appeals to natural law, even as a supplement or orienting guide to the law: only a positivist reading of precedents and formal agreements seemed “scientific” and “modern.” Bosco illustrates the new attitude in a reported exchange in the proceedings of an arbitration panel in 1893. American lawyers urged the right of the United States to restrict brutal bludgeoning of seals off the coast of Alaska (but beyond U.S. territorial waters) as sanctioned by “the Great Book of Nature.” One of the arbitrators immediately objected: “What are your authorities? My Lord, The Book of Nature—what page and what edition?”

But the world wars saw the U.S. Navy engage in practices that were not just straining traditional views about the law of the sea at the margins. Already in the First World War, Britain and France had extended their blockade of German ports to cover nearby neutral ports, lest goods be carried from there into Germany by land. By the time the U.S. Navy joined their efforts, the Allies had claimed the right to search all neutral ships on the high seas to ensure they were not carrying forbidden cargo to forbidden destinations—prompting remaining neutral states to submit to inspection and certification by Allied officials of merchant cargoes leaving their own (neutral) ports. In effect, access to the Atlantic was licensed by the Allied powers. In the Second World War, the U.S. Navy essentially adopted German U-boat tactics in the Pacific, attacking any merchant vessel with Japanese markings or heading to Japanese ports.

The Poseidon Project lets readers glimpse why the arguments of Grotius were important to the American Founders and to generations of American statesmen thereafter.

Bosco’s account brushes lightly over the extent to which this departed from prior understandings. He certainly recognizes that the world wars proved a strain on older practices. But he is keen to keep his account moving forward to notice later challenges, which then come to appear in Bosco’s account as almost analogous. After recounting a series of earlier disputes about transit rights and fishing rights (notably the “Cod War” between Britain and Iceland in the 1970s), he focuses on the negotiation of the 1982 UN Convention on the Law of the Sea (UNCLOS).

The grand bargain of UNCLOS allowed states to claim as much as 12 miles from their coasts as “territorial sea” in which they could impose their own regulatory controls in return for committing to allow “innocent passage” of ships from anywhere, so long as they did not directly threaten the coastal state. States could also claim an “exclusive economic zone” as far as 200 miles from the coast, in which they could regulate fishing, mining, and polluting practices. Bosco presents this outcome as a major setback for the Grotian vision of freedom of the seas. He notes that unilateral national claims have exceeded controls authorized by UNCLOS and international conservation treaties have tried to add more restrictions on deep-sea fishing. The trend seems to be toward more and more control. Hence Bosco’s final word: “the future ocean will feature less traditional freedom than ever before. Grotius may have prevailed in the ‘battle of the books’ [between champions and opponents of maritime freedom] that played out in the 17th century—but he is on course to lose the war.”

This is certainly plausible. It may be correct. But Bosco’s long string of anecdotes, however suggestive and intriguing, does not establish this conclusion. The problem with the Poseidon Project is that it doesn’t offer much argument about the forces behind the trends, which could help clarify the trajectory of events and distinguish confirming (or contradicting) trends from random variation. It might be that we owe maritime freedom to the predominance of great trading states (the Netherlands, then Britain, later the United States) which happened to have the most powerful navies, as Bosco suggests. Or it might well be (as Captain Mahan argued) that a great trading nation is bound to build up naval strength to protect its trade.

The Poseidon Project doesn’t even offer much analysis about what Grotius meant or what we should still understand as “freedom of the seas.” So it’s hard to see the baseline against which to measure the trends. Thus, while the Allied navies exerted far-reaching control over world commerce during the world wars, the control was withdrawn when the wars ended. At the time, these measures were depicted as exceptional and temporary. Many decades later, they still look that way. Today, we can impose economic sanctions by denying access to banking networks, without needing to stop ships on the high seas. Or is it too optimistic to think this leaves no motive to interfere with ships on the high seas? European states have recently seized yachts of Putin-friendly oligarchs (or anyway, very wealthy Russians) on the high seas—because they could.

Whether war is an exception or the set of practices that reveal the deepest logic of statecraft is, of course, a question that goes beyond the law of the sea. So too with a related meta-question, regarding restrictions on freedom for the sake of freedom, as restrictions on disruptive protests are often defended as a necessary safeguard of controversial speech. To think about when restrictions on specific maritime practice may serve the larger end, we have to be more clear about the relevant ends. Bosco characteristically mentions the setting of Grotius’ great work on freedom of the seas, Mare Liberum (“Freedom of the Seas”). But he then rushes through the Grotian arguments in half a page, without much effort to analyze them.

Grotius gave two practical reasons why the seas should be open to all, both of which, in fact, have been rendered less compelling by modern technology. Grotius argued that seas could not be closed off by walls or fences, in the same way as land—an argument that seems far less compelling in the age of sea mines, submarine fleets, and air patrols. He also argued that the use of the sea by one nation left no one else worse off—an argument that is far less compelling when some fish species have been overfished to near extinction and oil spills and other pollutants threaten all manner of marine wildlife.

But Grotius also offered a moral argument, which might be called a theological argument. Grotius, himself, deployed the terminology of natural law: he spoke of a “self-evident” truth, proclaimed by “God Himself . . . speaking through the voice of Nature . . . ” God has scattered different natural resources in different places so that no people can be fully or comfortably self-sufficient: Our Creator seems to have arranged the world in this way, because He “wished human friendships to be engendered by mutual needs . . . ”

The echoes here—or rather, the anticipations—of formulas in the Declaration of Independence are not sheer coincidence. The argument about the seas is the logical complement to the Declaration’s claim for the “separate and equal station” of sovereign states: what does not belong to any one state should be open to all, since no one state (or limited coalition of states) can rightly claim to be master of the seas. Whether you find that claim compelling turns, perhaps, on whether you give any credit to any version of natural law reasoning.

Plainly the American Founders did. They cared about the law of the sea because colonial America depended on sea-borne trade (hence the protest in the Declaration against the British king “for cutting off our trade with all parts of the world”). But they also sensed the moral, perhaps even metaphysical stakes—hence Madison’s investment in classic treatises on natural law and the law of nations.

Elements of International Law , the first full-length treatise on “international law” in English (which helped popularize that new term, displacing “law of nations”) was written by Henry Wheaton, who had been court reporter for Chief Justice John Marshall. In a letter later published in Wheaton’s treatise, Marshall thanked him for having raised “Old Hugo Grotius . . . to the rank he deserves.”

The Poseidon Project lets readers glimpse why the arguments of Grotius were important to the American Founders and to generations of American statesmen thereafter. Though a lively survey in other respects, the book doesn’t get readers much past the threshold of understanding of why these older arguments have retained so much resonance for so long.

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The Law of the Sea Convention

Updated 18 October 2023

Downloads 57

Category Law

Topic International Law

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

The United Nations Convention on the Law of the Sea (UNCLOS) was signed in 1982 and came into force in 1994. It was ratified by a total of 168 parties among them is the European Union (United Nations, 1982).

Maritime Sector and Social, Economic, and Political Development

In modern countries, the maritime sector plays a major role in the social, economic, and political development. In the past, the fishing and shipping industry experienced a rise in capacity of the number of fleets, trade volume, and fishing activities. Based on the sovereignty of the party countries, the law lays down the rights, responsibilities, and limitations of countries in context to the use of the world's oceans and seas. This includes the guidelines for conducting business, environmental conservation, and the management or utilization of the marine natural resources (Proelss & Maggio, 2017). It replaced the earlier "Freedom of the Seas concept".

Legal Framework and Ocean Space Regulations

Upon the adoption, the convention had nine resolutions and a statement of understanding. It put in place a comprehensive legal framework that would henceforth dictate the use of resources and regulations of all ocean space (Rothwell & Stephens, 2016). The convention recognized the sovereignty of any coastal country to extend beyond its land to the internal waters known as the territorial sea, the air space, bed and subsoil above and below the territorial sea.

Geographical Zones and Governance

Geographically, the UNCLOS splits marine areas into five areas with four of them having a greater focus. They are; the Territorial sea, internal waters, Contiguous Zone, the Exclusive Economic Zone and the High Seas. The zones are pillars of governance to coastal states and navigation through the sea. The Internal waters include areas such as rivers, inlets, ports, and any other landward spaces. The zone is subject to the enforcement of domestic regulations under the jurisdiction of the port state. This is with the exception of foreign vessels as long their activities do not affect the local peace and security (Nordquist, Moore, & Long, 2017). A has the power to prohibit the entry of any privately contracted armed security personnel to its internal waters in regards to the country's legislation. Foreign vessels are also prohibited from passage through the internal waters (Yturriaga & Sánchez, 2017).

Territorial Sea and Baseline Limit

Any state can set up the breadth of its territorial sea to a maximum distance of 12 nautical miles from each point of the baselines. In the case of Islands and reefs, the territorial sea is the seaward low-water baseline of the reef or island (Proelss & Maggio, 2017). Indented baselines or in instances of the presence of Natural barriers, they can be straightened by joining the appropriate points and drawing a straight baseline from which the territorial sea breath will be measured from (United Nations, 1982). The appropriate points should be closely linked to the land domain and drawn towards the low-tide elevations. In the case of bays, the convention considers any area not exceeding 24 nautical miles between the entrance points of the bay and the land is considered as internal waters. If the distance exceeds 24 nautical miles then lines from the baseline shall be drawn to enclose the areas within 24 nautical miles (United Nations, 1982).

Territorial Waters and Sovereignty

The Territorial waters are a sovereign space of the country. The country has the power to set laws and regulations concerning the use of the resources found within this area. However, innocent passage is granted to foreign vessels through the waters. This also includes allowing transit passage and military crafts (Bigagli, 2016). The vessels granted innocent passage are required as per the UNCLOS to pass in a continuous manner that does not affect the peace and security of the country. Some of the restrictions placed on the territorial waters of any coastal country include; fishing, maritime security operations including carriage use of weapons, pollution, and spying. Underwater vessels such as submarines seeking passage through the territorial waters should pass on the surface with their flag shown and visible. For the sake of security and peace, countries are at liberty to temporarily suspend innocent passage or even national passage in specific marine areas (United Nations, 1982).

Contiguous Zone and National Jurisdiction

The next zone is the Contiguous Zone. This is located 12 nautical miles beyond the territorial waters baseline limit. The UNCLOS grants coastal countries the mandate to continue exerting its jurisdiction over its customs and laws within this area. A country has the authority to restrict, prevent or punish any infringement of its national laws, customs laws, fiscal laws, immigration laws and national legislation. The state is responsible for the monitoring and bringing to an end any activity with the possibility of leading to armed violence, importation of weapons or any other activity that is a threat to the state's security (Proelss & Maggio, 2017).

Exclusive Economic Zone and Coastal Sovereignty

The Exclusive Economic Zone comes next. It is located between the territorial sea and the high seas. It extends to a maximum of 200 nautical miles from the shore. In this zone, the foreign vessels can enjoy the high sea navigation freedom. However, the coastal state still retains its sovereignty which is, in this case, limited to exploring, mining, conservation of natural resources and their exploitation (Bigagli, 2016). Therefore, the border agencies of the particular country are at liberty to take action in order to prevent third parties from infringing on the economic assets found in this area, for instance, wind-farming, or fishing activities. Border agencies have the jurisdiction to inspect, board, arrest and start judicial proceedings against foreign parties found violating or not complying with the UNCLO laws and regulations (Nordquist, Nandan, Kraska, & Nijhoff, 2013). However, a state cannot restrict the transit or loitering of foreign vessels either above or under the surface of the exclusive economic zone.

High Seas and Equal Rights

The last zone as stipulated by the UNCLOS is the High Seas. This is the area lying further than 200 nautical miles from the coastal shore of a country. It is an open area that is equally available to everyone. It is controlled by the principle of equal rights which is acknowledged by the UNCLOS for progress, justice and peaceful coexistence of all nations of the world. No state is justified to cause any interference against another country. The UNCLOS grants freedom in several spheres such as vessel navigation including their protection against third-party interference, laying of cables, construction of artificial islands, scientific research, mining and fishing (Yanai, 2014). With this freedom, challenges such as threats of piracy in the high seas. As a requirement to the right of passage for all ships, they should fly their flags as they navigate through the high seas. The ships should have a registration and a flag entitled to it by its nationality and can never change the flag during voyage unless its registration or ownership is changed (Yanai, 2014). Warships are also immune from any state's jurisdiction apart from the flag state.

The division of marine zones by the UNCLOS makes it clear for state's border management agencies about their specific geographical jurisdiction and the laws and regulations that can be enforced within distinct spaces. This, hence, has enhanced peace and security for the coastal countries while still promoting healthy fishing activities. The economic assets and the environment of a country are also protected against exploitation by foreign countries and vessels. The UNCLOS ensures that the sovereignty of a country is maintained by giving powers to state border agency to arrest, prevent, and start judicial proceedings against any parties violating the country's customs laws and the UNCLOS laws pertaining to the conduct required in each of the zones. The maritime enforcement requires adherence to both international and local legal requirements in the fulfillment of a state's civil and military aspects.

United Nations. (1982). United Nations convention on the law of the sea : Third United Nations Conference on the law of the sea. New York: International government publication.

Bigagli, E. (2016). The international legal framework for the management of the global oceans social-ecological system. Marine Policy, 155-164.

Nordquist, M. H., Moore, J. N., " Long, R. J. (2017). Legal order in the world's oceans : UN Convention on the Law of the Sea. Leiden: Brill.

Nordquist, M. H., Nandan, S. N., Kraska, J., " Nijhoff, M. (2013). UNCLOS 1982 commentary : supplementary documents. Leiden: Brill.

Proelss, A., " Maggio, A. R. (2017). United Nations convention on the law of the sea (UNCLOS) : a commentary. Munchen: Beck Verlag.

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Senior Hamas leader killed in Beirut blast, group says; Maersk pauses Red Sea shipping

This live coverage has ended. For the latest updates, please go here .

An explosion in a Beirut suburb Tuesday killed senior Hamas official Saleh Arouri, along with two leaders of Hamas’s elite Izzedine al-Qassam Brigades, the group said. A U.S. defense official, speaking on the condition of anonymity to discuss sensitive operations, said Israel was responsible for a strike targeting Arouri and that an assessment is underway to ascertain whether he was killed. Ismail Haniyeh, Hamas’s political leader, said the “cowardly” attack also killed Samir Fandi and Azzam al-Aqra’, two leaders in the military wing of Hamas, as well as four other members of the group. The Israel Defense Forces declined to comment on the blast, and Israel has not claimed responsibility for the attack.

  • U.S. says Israeli ministers’ calls to relocate Gazans are ‘inflammatory’
  • Beirut blast could raise specter of wider war
  • Rift over judicial overhaul law probably influenced Hamas’s attack, IDF says

Here's what to know:

Here's what to know, live coverage contributors 11.

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  • Israel-Gaza war live updates: Hezbollah chief vows ‘response and punishment’ after killing of senior Hamas leader in Lebanon January 3, 2024 Israel-Gaza war live updates: Hezbollah chief vows ‘response and punishment’ after killing of senior Hamas leader in Lebanon January 3, 2024
  • IDF killing of 3 hostages ‘could have been prevented,’ investigation finds December 29, 2023 IDF killing of 3 hostages ‘could have been prevented,’ investigation finds December 29, 2023
  • More than 20,000 dead in Gaza, as U.N. calls for fighting pause and aid December 22, 2023 More than 20,000 dead in Gaza, as U.N. calls for fighting pause and aid December 22, 2023

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Israel-Gaza war

An estimated 100,000 Palestinians have fled to the crowded southern Gaza city of Rafah in recent days, the U.N. humanitarian agency said. The Israel Defense Forces on Friday announced an expansion of its operations in Khan Younis.

More than 20,000 people have been killed in the Gaza Strip during the war between Israel and Hamas, according to the Gaza Health Ministry.

Hostages: More than 100 held in the Gaza Strip have been released. Here’s what we know about those freed by Hamas so far .

Oct. 7 attack: Hamas spent more than a year planning its assault on Israel. A Washington Post video analysis shows how Hamas exploited vulnerabilities created by Israel’s reliance on technology at the “Iron Wall,” the security barrier around the Gaza Strip, to carry out the deadliest attack in Israel’s history. Stock traders earned millions of dollars anticipating the Oct. 7 Hamas attack, a study found.

Israeli-Palestinian conflict: The Hamas-controlled Gaza Strip has a complicated history. Understand what’s behind the Israel-Gaza war and read about the history of the Israeli-Palestinian conflict .

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Guest Essay

How the Federal Government Can Rein In A.I. in Law Enforcement

A purple, blue and red illustration of a radar screen that also looks like a large eye, with several small eyes floating inside it.

By Joy Buolamwini and Barry Friedman

Dr. Buolamwini is founder of the Algorithmic Justice League, which seeks to raise awareness about the potential harms of artificial intelligence, and the author of “Unmasking AI: My Mission to Protect What Is Human in a World of Machines.” Mr. Friedman is a professor at New York University’s School of Law, where he is the faculty director of its Policing Project. He is the author of “Unwarranted: Policing Without Permission.”

One of the most hopeful proposals involving police surveillance emerged recently from a surprising quarter — the federal Office of Management and Budget. The office, which oversees the execution of the president’s policies, has recommended sorely needed constraints on the use of artificial intelligence by federal agencies, including law enforcement.

The office’s work is commendable, but shortcomings in its proposed guidance to agencies could still leave people vulnerable to harm. Foremost among them is a provision that would allow senior officials to seek waivers by arguing that the constraints would hinder law enforcement. Those law enforcement agencies should instead be required to provide verifiable evidence that A.I. tools they or their vendors use will not cause harm, worsen discrimination or violate people’s rights.

As scholars of algorithmic tools, policing and constitutional law, we have witnessed the predictable and preventable harms from law enforcement’s use of emerging technologies. These include false arrests and police seizures, including a family held at gunpoint , after people were wrongly accused of crimes because of the irresponsible use of A.I.-driven technologies including facial recognition and automated license plate readers.

Consider the cases of Porcha Woodruff, Michael Oliver and Robert Julian-Borchak Williams. All were arrested between 2019 and 2023 after they were misidentified by facial recognition technology. These arrests had indelible ­­­consequences: Ms. Woodruff was eight months pregnant when she was falsely accused of carjacking and robbery; Mr. Williams was arrested in front of his wife and two young daughters as he pulled into his driveway from work. Mr. Oliver lost his job as a result.

All are Black. This should not be a surprise. A 2018 study co-written by one of us (Dr. Buolamwini) found that three commercial facial-analysis programs from major technology companies showed both skin-type and gender biases. The darker the skin, the more often the errors arose. Questions of fairness and bias persist about the use of these sorts of technologies.

Errors happen because law enforcement deploys emerging technologies without transparency or community agreement that they should be used at all, with little or no consideration of the consequences, insufficient training and inadequate guardrails. Often the data sets that drive the technologies are infected with errors and racial bias. Typically, the officers or agencies face no consequences for false arrests, increasing the likelihood they will continue.

The Office of Management and Budget guidance, which is now being finalized after a period of public comment, would apply to law enforcement technologies such as facial recognition, license-plate readers, predictive policing tools, gunshot detection, social media monitoring and more . It sets out criteria for A.I. technologies that, without safeguards, could put people’s safety or well-being at risk or violate their rights. If these proposed “minimum practices” are not met, technologies that fall short would be prohibited after next Aug. 1.

Here are highlights of the proposal: Agencies must be transparent and provide a public inventory of cases in which A.I. was used. The cost and benefit of these technologies must be assessed, a consideration that has been altogether absent. Even if the technology provides real benefits, the risks to individuals — especially in marginalized communities — must be identified and reduced. If the risks are too high, the technology may not be used. The impact of A.I.-driven technologies must be tested in the real world, and be continually monitored. Agencies would have to solicit public comment before using the technologies, including from the affected communities.

The proposed requirements are serious ones. They should have been in place before law enforcement began using these emerging technologies. Given the rapid adoption of these tools, without evidence of equity or efficacy and with insufficient attention to preventing mistakes, we fully anticipate some A.I. technologies will not meet the proposed standards and their use will be banned for noncompliance.

The overall thrust of the federal A.I. initiative is to push for rapid use of untested technologies by law enforcement, an approach that too often fails and causes harm. For that reason, the Office of Management and Budget must play a serious oversight role.

Far and away, the most worrisome elements in the proposal are provisions that create the opportunity for loopholes. For example, the chief A.I. officer of each federal agency could waive proposed protections with nothing more than a justification sent to the Office of Management and Budget. Worse yet, the justification need only claim “an unacceptable impediment to critical agency operations” — the sort of claim law enforcement regularly makes to avoid regulation.

This waiver provision has the potential to wipe away all that the proposal promises. No waiver should be permitted without clear proof that it is essential — proof that in our experience law enforcement typically cannot muster. No one person should have the power to issue such a waiver. There must be careful review to ensure that waivers are legitimate. Unless the recommendations are enforced strictly, we will see more surveillance, more people forced into unjustified encounters with law enforcement, and more harm to communities of color. Technologies that are clearly shown to be discriminatory should not be used.

There is also a vague exception for “national security,” a phrase frequently used to excuse policing from legal protections for civil rights and against discrimination. “National security” requires a sharper definition to prevent the exemption from being invoked without valid cause or oversight.

Finally, nothing in this proposal applies beyond federal government agencies. The F.B.I., the Transportation Security Administration and other federal agencies are aggressively embracing facial recognition and other biometric technologies that can recognize individuals by their unique physical characteristics. But so are state and local agencies, which do not fall under these guidelines. The federal government regularly offers federal funding as a carrot to win compliance from state and local agencies with federal rules. It should do the same here.

We hope the Office of Management and Budget will set a higher standard at the federal level for law enforcement’s use of emerging technologies, a standard that state and local governments should also follow. It would be a shame to make the progress envisioned in this proposal and have it undermined by backdoor exceptions.

Joy Buolamwini is the founder of the Algorithmic Justice League, which seeks to raises awareness about the potential harms of artificial intelligence, and the author of “Unmasking AI: My Mission to Protect What Is Human in a World of Machines.” Barry Friedman is a professor at New York University’s School of Law and the faculty director of its Policing Project. He is the author of “Unwarranted: Policing Without Permission.”

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

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