Earlier the powerful States laid extensive claims of sovereignty over specific portions of the open sea. Grotius championed the doctrine of the ‘freedom of seas’ because it is impossible for any nation to effectively possess them. The law developed out of well-settled usages culminating into customary law. The hallmark of this law, which was followed up to the half of the twentieth century, was essentially that of non-regulation and laissez faire and except that of territorial waters, the law essentially endorsed the doctrine of ‘open sea’. But the United States declared proclamation jurisdiction over the continental shelf gave a new direction to the law of sea. Many nations made sweaping claims to protect their economic and military interests. These developments stressed the urgency for codification of law in order to strive uniformity and resolve maritime conflicts among nations. The matter was put on the agenda of the International Law Commission in 1949.
On the basis of the drafts prepared by the ILC, in 1958, the First United Nations Conference on the Law of the Sea took place at Geneva, which adopted four conventions, viz., the Geneva Convention on the Territorial Sea and the contiguous Zone, on the High Sea, on the ;Continental Shelf, and the Fishing and Conservation of the Living Resources of the High Seas. But the important issues related to the breadth of the territorial sea and the fishing rights of the coastal States beyond their territorial sea were left undecided. A Second Conference on the Law of Sea was held in 1960, at Geneva, but again no agreement could be found these issues.
Together, both these conference on the Law of the Sea left many matters unsettled. Further, the interests of the landlocked States were also not adequately protected, except the High Seas Convention, which in Art. 3 explicitly and specially dealt with their problem of access to the sea. It was soon being realized that these conventions were inadequate to meet the new challenges put up by science and technology, which made it possible for States with sufficient resources and know-how to explore and exploit the underwater mineral resources at greater depth of the sea, and the consequential need to prevent the increasing pollution, and the conservation of the fishing resources of the seas.
This made it imperative to reformulate the law of the sea in composite form to make it conducive to the new interests and demands of all concerned and paved the way to hold the Third Law of the Sea Conference.
The initiative to hold a new conference came from Malta’s representative to the United Nations at whose behest the General Assembly considered the item concerning the exploitation and uses of the seabed and ocean floor beyond the limits of the present national jurisdiction. He also pressed for the United Nations endorsement that deep seabed resources are the ‘common heritage of mankind’ and the same should be developed in the interests of all nations, with special regard to the needs of developing countries. The move was to secure the mineral wealth of the oceans as well as to avoid the militarization of the deep seabed. This led to the formation of a 42 member Ad hoc Seabed Committee in 190, the General Assembly adopted a declaration of Principles Governing the Seabed and Oceans floor, and the Sub-soil thereof, beyond the limits of National Jurisdiction, which proclaimed that the exploitation of these areas should be carried out for the benefit of the mankind as a whole.
At the end of nine years in 12 sessions, the Conference adopted the Law of the Sea Convention in 1982. Though it was agreed in its second session that all the provisions as well as the complete text of the Convention would be accepted by consensus with a view to increase their acceptability and ‘there shall be no voting until all efforts at consensus have been exhausted’, the draft Convention was adopted through voting in the eleventh session of the Conference.
The Convention consists of 320 Articles spread over 17 parts and nine annexes. Apart from these, there are four resolutions. The Convention comprises the ground covered by the four Geneva Convention of 1958, and creates some new regimes. In fact, many of the provisions repeat verbatim or in essence the provisions of the Geneva Conventions, or give more detailed rules on matters covered by them. It contains provisions on those matters on the new legal regimes of Exclusive Economic Zone and the deep seabed. It has laid down a 12 nautical miles limit for the territorial sea. The Convention contains detailed machinery for the settlement of disputes, including an International Tribunal for the Law of the Sea. It also provides for the compulsory judicial settlement of most of the disputes that may arise under the Convention, at the request of one of the parties to the dispute.
In the case Concerning the Continental Shelf between Libya and Malta, the Court observed that ‘the 1982 Convention is of major importance, having been adopted by an overwhelming majority of States; hence it is clearly the duty of the court to consider in what degree any of its relevant provisions are binding upon the parties as a rule of customary international law’, and noted that the provisions on the continental shelf reflect the customary law of the continental shelf.
Thus, the Convention is a major achievement and its ambit is very wide.
Maritime Belt or Territorial Sea: Maritime belt or territorial sea is that part of the sea which is adjacent to the coastal State and which is bounded by the high seas on its outer edge. The coastal State exercises its sovereignty over this area as it exercises over its internal waters. The sovereignty extends to the airspace over the territorial sea as well as its bed and sub-soil. This sovereignty accrues to a State under customary international law which no State can refuse.
However, the sovereignty over this area has to be exercised subject to the provisions of the conventions and ‘to other rules of international law’, which provides certain rights to other States, particularly right of ‘innocent passage’ in the territorial waters of the State.
It is generally held view that at the turn of the century, there existed a three-mile limit as a rule of general application. The three-mile rule, popularly known as ‘cannon-shot’ rule, had a rationale that a State’s sovereignty extended to the sea as far as a canon could reach or fire. Before the 1982 Sea Convention was concluded, States proclaimed varying breadth of the territorial sea, generally ranging from 3 to 12 miles, though in certain cases they had proclaimed wider areas than that, in few cases upto 200 nautical miles. But at the UNCLOS-III, claims wider than 12 miles did not find favour and the 12 miles rule was accepted by the Conference, which may be considered the present customary international law position.
Article 3 of the 1982 Sea Convention limits the breadth of the territorial sea to 12 nautical miles ‘measured from baselines determined in accordance with the Convention’. Two methods have been laid down for measuring the breadth of the territorial sea: the low-water line and the straight baseline. The normal method used is the low-water line as marked on large scale charts officially recognized by coastal State. Where the coastline is deeply intended and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the straight baseline method joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.
The method of straight baseline was enunciated by the Anglo Norwegian Fisheries case, which had a decisive effect on the baseline issue. In this case, Norway which has a fringe coastline, by its 1935 Decree proclaimed exclusive fishery zone (meant territorial sea) along almost 1000 miles of its coastline. The zone which was four miles wide, measured not from the low-water mark but from straight baselines linking some 48 outer most points of island and lands, at a considerable distance from the coast By using the straight baselines, some of which were 30 miles long and the longest was 44 miles, Norway could enclose waters within its territorial sea that would have been the high seas, and hence open to foreign fishing. The UK, whose fishing interests were affected by this Decree, challenged the legality of the straight baseline system adopted by Norway and the choice of certain baselines used in applying it. The Court upheld the method applied by Norway in drawing the baselines and it also did not reject the criterion of low water mark. But the manner of application of straight baselines is ‘dictated by geographical realities’.
It was propounded by the judgment that where a State has a rugged coastline, deeply indented, or if there is a fringe of islands in the immediate vicinity, the straight baseline, joining the low water at appropriate points, is admissible, provided:
- the drawing of baseline must not depart to any appreciate extent from the ‘general direction’ of the coast;
- the areas lying within the baselines are sufficiently closely linked to the adjacent land domain; and
- the economic interests as evidenced by long established usage, peculiar to a particular region concerned, must be taken into account, before the straight baseline method is allowed to be followed by coastal State.
The principles laid down in the Fisheries case relating to straight baselines are to be followed in drawing baselines except those of low-tide elevations, unless the lines drawn in such circumstances have received ‘general international recognition’. The system of straight baselines is not to be applied in a manner as to cut off the territorial sea or an EEZ of another State from the high seas.
The delimitation of the territorial sea between two States opposite or adjacent to each other can take place in accordance with an agreement between them, failing which the median line, every point of which is equidistant from the nearest points on the baselines from which the breath of the territorial seas of each of the two States, is measured. This rule is not applicable in the cases of ‘historic title’ or other special circumstance.
In the territorial sea, the coastal State enjoys all the right and duties inherent in sovereignty, and the right to regulate this regime. Other States also enjoy certain privileges associated with the right of innocent passage.
The customary international law recognizes the right of innocent passage for ships of all States through the territorial waters of a State but no such right exists for aircrafts in the airspace over the territorial waters. ‘Ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.’ No right of innocent passage exists through internal waters. The passage to be considered innocent, of foreign fishing vessels, their conduct should be according to the laws and regulations made by the coastal State for fishing purposes in territorial sea.
Under the Convention vessels entitled to innocent passage are ‘ships of all states’ without making a distinction between merchant, public or warships. The submarines, however, are required to navigate on the surface. Warships have the right of passage through international straits, as decided in the Corfu Channel case.
The coastal States has the right to make laws to regulate the territorial waters. It can adopt laws and regulations governing innocent passage, and to prevent passage which is not innocent. Foreign ships in innocent passage are required to comply with all such laws and regulations, framed by the coastal State, and other common international regulations for the prevention of collisions at sea.
The costal State is required not to hamper or impair innocent passage or to apply rules and regulations in this regard in a discriminatory manner. Nevertheless, the coastal State is empowered to ‘take the necessary steps’ to prevent non-innocent passage.
India’s position in relation to the law of the sea is generally governed by Article 297 of the Constitution of India, and the Territorial Water, Continental Shelf, EEZ and other Maritime Zones Acts. The Maritime Zones Act proclaims the sovereignty of India over the territorial waters of India and the seabed and sub-soil underlying and the airspace over such water. The limit of the territorial is the line every point of which is at a distance of 12 nautical miles from the nearest pint of the appropriate baseline. All foreign ships are given the right of innocent passage through the territorial waters. Passage is innocent so long as it is not prejudicial to the peace, good order or security of India.
However, foreign warships, including submarines and other underwater vehicles, may enter or pass through the territorial water by giving prior notification to the Central Government. Submarines and other underwater vehicles are to navigate on the surface and show their flags when passing through such waters. The Central Government, if satisfied that it is necessary in the interest of peace, good order or security of India or any part thereof, may suspend the innocent passage, absolutely or subject to certain exceptions or modifications, by notification made in the official gazette. Thus, the position of India in this regard is in accordance with the 1982 Convention.