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Evolution of the Law of the Sea

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Tendai Masunda

on 25 September 2013

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Transcript of Evolution of the Law of the Sea

Evolution of the Law of the Sea
1958 UN First Conference on the Law of the Sea (UNCLOS I)
Major Sources of LOS
i. Customary international law;
ii. Treaties & conventions;
iii.Judicial decision; and
iv. General principles of v.international law.

Mare Liberum (Freedom of the Sea).
Advocated by Hugo Grotius.
Published in 1609.
“the freedom of the sea”
The seas should not be subjected to any form of claim, control or ownership by any States .
Open and free for all States.
All States to enjoy equally.
freedom to navigate;
freedom to fish.
Supporting VOC.

Mare Clausum (Dominion of The Sea)
John Selden.
Mare Clausum (closed sea).
Published 1635
Coastal States entitled to assert a claim/ control over adjacent seas.

Scope of 1982 LOSC
Due to the slow decision-making process.
Decisions by consensus were adopted as opposed to decision by majority vote as being practiced by earlier UNCLOS I.
Different conflicting interests required considerable time to reconcile.
“Package deal principle”
States’ reluctance to support certain proposal/ legal provisions unless other States adopt the other proposal/ legal provisions.

1982 LOSC
Most comprehensive multilateral treaty on LOS.
“Constitution of the Ocean” (Prof. Tommy Koh)
Contain 320 Articles, in 17 Parts, & 9 Annexes.
Final text adopted on 30 April (130 votes to 4)
Signed on 10 Dec. 1982, Montego Bay, Jamaica
1982 LOSC entered into force 12 months after 60th States deposited instrument of ratification or accession. (Art 308 (1)).
Came into force on 16 Nov. 1994.
As of 20 Sept. 2011, 162 States have ratified or acceded.

Reflected Selden’s country’s interests
Great Britain was till not a powerful maritime State yet
Unlike during the reign of Queen Elizabeth I (1533-1603) & Queen Victoria (1837-1876)
Supported King James I policy
e.g. King’s Chamber 1604
Closing the England adjacent coastal areas from foreign intrusion.
King James I wanted to curb the benefits to be derived by the Dutch through their powerful merchant and fishing fleets

UN Third Conference on Law of the Sea (UNCLOS III)
Aim of producing a comprehensive codified law of the sea.
Held from in various places/countries.
e.g. Caracas, New York, Montego Bay.
11 years of protracted conferences before adoption.
UNCLOS III began in 1973 with initial 144 States + 8 specialized agencies participating in the discussion.

Oldest source of law.

Significantly influenced LOS development before 1900s.
State practice:

“Amalan” atau “adat tradisi” sesebuah negara yg lama bertapak, diamalkan & diiktiraf sbg peraturan & undang-undang antarabangsa.”

Consistency in practice;
Opinio juris.
conviction by legal publicists that the practice has become int. obligation not just merely State practice.
e.g. 1969 North Sea Continental Shelf ICJ Case
1985 Libya/Malta Continental Shelf ICJ Case

iii. Judicial Decision
Int. court decisions.
ICJ and ITLOS decisions.
e.g. 1951 Anglo-Norwegian Fisheries
1969 North Sea Continental Shelf

Main sources of modern/current law of the sea.
Mostly coming from UN & IMO Conventions.
Multilateral diplomatic efforts.
Codification of law in post-World War II.
Examples: UN Law of the Sea (LOSC), MARPOL, UN Fish Stocks Agreement, SOLAS.

First UN Conference on the LOS held in Geneva.
24 February to 27 April 1958.
1st successful universal attempt to codify customary LOS.
4 Geneva Conventions drawn up from UNCLOS I:
Territorial Sea and Contiguous Zone (1964)
Convention on the High Seas (1962)
Fishing and Conservation of Living Resources (1966)
Convention on the Continental Shelf (1964)

1960 UN Second Conference on the Law of the Sea (UNCLOS II)
Held in Geneva (16 March to 26 April 1960).
Unresolved issues of UNCLOS I.
Several countries not satisfied with some provisions of 1958 Geneva Conventions.
Technological advances made it necessary for the 1958 Conventions to be reviewed.
Failed to arrive to any conclusion on the exact breath of territorial sea.

Codification efforts of LOS after World War I.
Many LOS had yet to be codified into treaty text.
1930 League of Nations Conference for the Codification of International Law was held at the Hague.
1930 Hague Codification Conference.
earliest effort to codified customary LOS in post-WW1.
Discussed standard breath of territorial sea
Failed due to no consensus.
Continue to follow customary practice.

Navigational rights
transit passage in int. straits.
innocent passage in TS.
archipelagic sea-lane passage in archipelagic waters.
Exploitation & conservation of fisheries resources.
Exploitation on non-living resources in the seabed & subsoil of CS.
Deep seabed mining under International Seabed Authority (ISA).
Regime for environmental protection.
Suggestion for dispute resolution mechanisms.

iv. General principles of international law
Is not of great significance (Churchill & Lowe, 1998).
Universally acceptable legal regimes or rules.
e.g. - Freedom of the high seas.
- Exclusiveness of flag State jurisdiction.
- Suppression of piracy and slavery ?

Development of LOS Before 1900
More than 500-years of undertaking.
Reflected the interest of powerful States.
European colonial powers’ competition.
e.g. Portugal, Spain, Holland, France & England.
Papal Bull of Demarcation 1493.
Treaty of Tordesillas 1494.
partitioning ocean bet. Portuguese & Spanish.
Determined sphere of political influence.
Treaty of Saragossa 1529.

Treaty of Tordesillas
Demarcation Line 1494
Division of Sphere of Influence
Mare Liberum vs. Mare Clausum
Development of LOS after 1900
Reason the final text of LOSC was slow to be adopted during UNCLOS III ?
Covers areas/matters not included in 1958 Geneva Conventions
Est. spatially-defined maritime jurisdictional zones
e.g. territorial sea (TS), Exclusive Economic Zone (EEZ),
archipelagic water, continental shelf (CS), high sea.
Accorded rights and jurisdictions of States in each zone.
Determine max. length of 12-nm territorial sea (TS)

int. law of the sea vs. private maritime law
Int. law of the sea: Rules & principles binding States or int. organization in their relationship on maritime matters.
Private maritime law: Rules & regulation governing conduct of private individuals in shipping & other transactions involving seaborne trade.

Evolution of the Law of the Sea
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