TOPICS
below "A.
Events
affecting the
LAW OF SEA from 1945
- 1973"
1.
The
Reasons for
International
Maritime Conflicts
2.
The
Truman Proclamations of
1945
3.
Developments in the late 1940's and 1950's
4.
The United Nations Conferences on the Law of the Sea I and
II
Geneva 1958
and 1960
5.
Developments in the 1960's
6.
The
Sea-Bed -
"Common Heritage of Mankind"
7.
The
Sea-Bed Committee
1967-1973 and the Preparations for a
Third Conference on the Law of
the Sea
Introduction to the Evolution of
a New Convention on the Law
of the Sea
A.
Events
affecting the
LAW OF SEA from 1945
- 1973
1.
The Reasons for International Maritime
Conflicts
The
most frequent and serious conflicts within the scope of the
law of the sea used to arise from the clash of two opposing
fundamental principles, territorial sovereignty and freedom of
the seas, or, to put it more concisely, the interests of the
states protecting their merchant, fishing, and naval fleets.
On the one hand, coastal states had territorial sovereignty in
their territorial seas, but the extent of this sovereignty and
the enforcement of law over vessels using the territorial sea
was often disputed. On the other hand, the principles of
freedom of navigation and fishing were important for states
under whose flags vessels sailed. Until the middle of this
century, fishing and navigation were the only important
economic uses of the sea, and conflicts were on the whole
limited to questions in these matters; they were therefore
more a legal matter involving particular incidents than one of
wide-spread concern. International shipping was essential for
coastal states as well as flag states, and countries were
frequently active in both roles. This is surely one reason
that the law of the sea, relying on three hundred year old
principles, was in 1945 still an "unwritten" law and
had not yet been codified; it applied as customary
international law. Such law can be described as international
custom, as evidence of a general and consistent practice by
states which is generally accepted (whether duties or rights)
as law. Codification attempts for the freedom of navigation,
fisheries, submarine cables and pipelines, and airspace over
the high seas in the period following the First World War did
not succeed. At that time, an occupation of the sea-bed was
considered beyond the capabilities of any state. General
opinion tended towards the view that the legal status of the
sea-bed should be governed by the same principles as the
waters above it. But such a regulation was never codified and,
with the exception of the laying of cables and pipelines, the
sea-bed remained out of reach for any use.
As
advances in technology increased the range for long-distance
fishing vessels, fishing just outside the territorial waters
of other states, but still within a few miles of the coast,
began to increase, at first a cause of concern to coastal
states. Beginning in 1945, some states began implementing
measures to protect the living resources of the sea for their
nationals beyond the limits of the territorial sea, then
generally accepted as being three nautical miles in breadth.
The principle of unlimited freedom of navigation was seriously
called into question during the 1960s, when disastrous tanker
accidents dramatically showed the effects of pollution on the
marine environment, and coastal states began to demand more
rights to protect their coasts and coastal waters.
The
narrowness of the law of the sea was also painfully
illuminated by the growing use of the sea-bed. Shortly before
World War II, when no one even knew of resources in the deep
sea-bed, much less had the means or technology to explore or
exploit them, off-shore drilling for oil and gas in waters
near the coast and in shallow water had begun. With the
immense growth in technology which accompanied the rapid
expansion of these activities, exploration became possible in
ever deeper waters. The question
as to whether exploitation of resources from the seas beyond
national jurisdiction should be subject to the principle of
freedom of the high seas had forced its way into immediate
relevance, and a generally accepted answer was needed.
Finally,
the conflict between these opposing rights and interests was
complicated by increasing awareness of questions of equality
and equal use of, access to, and participation in the riches
of the sea, as many countries did not have the means, know-how,
or trained manpower which would enable them to compete on
equal footing with the traditional industrialized states,
whether in navigation, fishing, or mining. If these nations
were to enjoy the right to participate in the resources of the
sea and shoulder the responsibility of dealing with problems
such as pollution, they had to be protected from the crush of
overwhelming competition by being granted sole rights over
resources and being given the opportunity to act together with
the more advanced countries.
Sources
of conflict on the seas, formerly restricted mainly to fishing
and navigation on territorial seas, have thus increased in
number and scope since the end of World War II.
2.
The
Truman Proclamations of 1945
By
the mid-1940s, technological achievements in the United States
had reached a level where prospects for exploration and
exploitation of off-shore oil fields were beginning to
generate wide-spread interest. At the same time, the country
was embroiled in a controversy over fishery rights. The
Roosevelt
government therefore began (and continued throughout the war)
preparing measures to be taken with regard to fishing and the
continental shelf; the deliberations were concluded just
before President Roosevelt died in April 1945. Implementing
the proposed measures as finalized,
Roosevelt
's successor as president, Harry S. Truman, issued in
September 1945 the proclamation on "Coastal Fisheries in
Certain Areas of the High Seas", which referred to the
urgent need to protect coastal fishing resources from
destructive exploitation and declared the need to establish a
conservation zone and, on the same day, a proclamation
concerning the "Natural Resources of the Subsoil and
Sea-bed of the Continental Shelf", in which was stated:
The
government regards the natural resources of the subsoil and
sea-bed of the continental shelf beneath the high seas but
contiguous to the coast... (to be) subject to its jurisdiction
and control.
These
proclamations had far-reaching effects on fishing and
exploration of the sea-bed. At the time, the continental shelf
claim was not very controversial; the proclamation on the
conservation of fisheries, by contrast, was. Other states such
as Great Britain
opposed any challenge to the traditional principles of the law
of the sea, in particular the freedom of fishing and freedom
of navigation. Time would show that this was precisely the
significance the Truman Proclamations would have for the law
of the sea; certain recent developments in this regime can be
traced back to President Truman's actions.
3.
Developments
in the late 1940's and 1950's
In
the wake of the Truman Proclamations of 1945, a number of
states took measures for the protection of offshore resources.
Mexico
followed the Truman lead by issuing similar proclamations, and
Argentina
in 1946 and
Chile
in 1947 extended their sovereignty considerably beyond the
territorial sea.
Chile
acted in particular to protect its whaling industry from the competition of foreign fleets. Within a few
years, several South American states had claimed extensive
rights, some demanding full sovereignty over coastal water
zones extending up to two hundred nautical miles. These claims
were generally rejected. The South American states were
followed in moderate measure by some of the states bordering
the Arabian Gulf, who declared the sea-bed adjacent to their
territorial sea to be subject to their jurisdiction and
control, a step necessary at that time to clarify the status
of and control over drilling platforms in the
Arabian Gulf
. This trend was to continue. By 1958, about twenty states had
made similar sea-bed claims. At that time, the right of the
coastal states to make such claims on the continental shelf
was not in question; instead, the disputes revolved around the
definition of continental shelf and the resulting delimitation
of the zone. These disputes must be regarded against the
background of the legal point that possession or occupation is
to some extent related to the ability to control or use the
area, and technology had not yet advanced far enough to allow
work in deeper waters. The basic "right" of a
coastal state to the (exploitable) resources of the sea-bed
off its coast was regarded as "natural." Freedom of
fishing was not seriously threatened, although there were
certainly local conflicts resulting from states' desires to
protect the short-distance fishing industries of their
nationals. A certain regulatory effect resulted from the
establishment of international regional fishery commissions
empowered to take necessary measures for conservation.
However, the wide-spread belief that the living resources of
the ocean were inexhaustible had not been proven false.
The
work of the United Nations Organization, founded in 1945, was
to have a different effect on relations involving the sea. A
maritime body, the International Maritime Consultive
Organisation (now the International Maritime Organisation,
IMO), was established. The purpose of the organisation was to
provide machinery for governmental regulations and practice
concerning maritime safety regulations and efficiency of
navigation.
Even
more directly related to the codification of the law of the
sea was the work of the International Law Commission of the
United Nations. In 1949, the Commission decided to give its
work on the law of the high seas top priority. The Commission
was advised by the UN General Assembly on December 6, 1949, to
include the regime of the territorial sea in its work. The
Commission's report resulted in the convening of a conference
in 1958. On February 21, 1957, the UN General Assembly
resolved that not only the legal but also the technical,
biological, economic, and political aspects of the problems
should be the subject of the conference's deliberations.
4.
The
United Nations Conferences on the Law of the Sea I and
II Geneva 1958
and 1960
At
the 1958 conference, the eighty-six states in attendance
adopted four conventions: the
"Territorial
Sea
and the Contiguous Zone," the "High Seas," the
"Continental Shelf", and "Fishing and
Conservation of the Living Resources of the High Seas."
These four conventions entered into force between 1962 and
1966. Progress had been made by codifying to a large extent
customary-law, but agreement on substantive questions had not
been reached. The second conference in 1960, convened to
consider particular questions regarding territorial sea and
fishing matters which had not been resolved in 1958, failed to
adopt a convention. Developing countries wanted, mainly for
surveillance and security reasons, a considerable extension of
the territorial sea, then still generally recognized as being
three nautical miles. The large shipping nations and naval
powers, on the other hand, were deeply concerned about the
effects any changes might have on the principle of freedom of
navigation. It was requested that the
limits of the territorial sea be set at twelve nautical miles.
As far as the continental shelf was concerned, the regulations
of the convention were not acceptable to the many states which
had only a narrow continental shelf, as the convention defined
the continental shelf as the sea-bed from the outer limits of
the territorial sea to the 200-meter isobath and beyond this
limit where the depth admitted exploration of natural
resources. In addition, the problem of fishing rights beyond
the territorial sea had not been solved for many coastal
states. The negotiations of the 1960 Conference ended
inconclusively.
Three
of the 1958 conventions were ratified by about fifty states,
thus gaming a certain measure of acceptance. The Convention on
Fishing and Conservation of Living Resources of the High Seas,
however, was ratified by only thirty-five states. This was due
to the fact that conservation principles provided by the
convention were already being practiced by fishing commissions
which had been established in various regions, and the
convention did not deal with the short-distance fishing
interests of the coastal states.
5.
Developments
in the 1960's
As
the United Nations Conferences I and II on the Law of the Sea
in 1958 and 1960 failed to adopt substantive proposals on the
breadth of the territorial sea and coastal state fishing
rights in coastal waters not covered by the continental shelf
regime of 1958, the widely diverging territorial sea claims
of various states seriously challenged the unity of the law of
the sea. Claims of territorial seas with a breadth of twelve
nautical miles or more tripled from about twenty to sixty
during the decade following the conferences.
Although
every extension of a state's territorial sea necessarily means
the extension of its exclusive fishing rights, even this
quadruple expansion was seemingly insufficient. Many coastal
states proclaimed a so-called exclusive fishing zone of
varying breadth, although in most cases it did not exceed
twelve nautical miles. More than thirty such claims had been
made by the end of the 1960s. It was at this time, moreover,
that the exhaustibility of the living resources of the sea
became obvious. From 1955 to 1965, the world fish catch almost
doubled and reached levels of overexploitation which seriously
endangered the survival of the resources. Conservation
measures, management, scientific research, and catch quotas
on a large scale became essential. A further matter of growing
concern was that the major fishing nations (about twenty
states) harvested four times as much as the rest of the world
together.
Extensive
fishing to the point of overexploitation was undoubtedly a
factor leading to an increase in the number of local
controversies over fishing rights, such as the escalation of
the "cod war" between
Iceland
and European countries to a high level of tension.
Nevertheless, or perhaps because of such conflicts, many
regional fisheries agreements were negotiated and concluded.
A
combination of forces led to the call for a third conference
on the law of the sea, in the hope that satisfactory solutions
to the growing problems and legal uncertainties in maritime
law could be found.
6.
The Sea-Bed -
"Common Heritage of Mankind"
Although
in the 1960s deep sea exploitation was still a technology of
the future, it was becoming evident that it would one day be
possible, and scientists had discovered that there were
enormous mineral resources in and on the sea-bed, particularly
polymetallic nodules. Naturally,
the question arose as to who would have the right to explore
and exploit these resources. The awareness of the problem can
be illustrated by the words of Lyndon Johnson, President of
the United States, who stated in 1966:
Under
no circumstances, we believe, must we ever allow the prospects
of rich harvest and mineral wealth to create a new form of
colonial competition among the maritime nations. We must be
careful to avoid a race to grab and to hold the lands under
the high seas. We must ensure that the deep sea and the ocean
bottoms are, and remain, the legacy of all human beings.
The
UN General Assembly began to act only on the initiative of the
Ambassador of Malta to the United Nations, Arvid Pardo, who in
1967 recommended to the United Nations that the resources,
other than fisheries, of the high seas beyond the territorial
sea and the sea-bed beyond the continental shelf be proclaimed
as belonging to the United Nations Organisation and as being
subject to its jurisdiction and control, as otherwise
militarization of the sea-bed and exploitation of its
resources by highly developed countries to their national
advantage and to the disadvantage of poor countries was
probable. In addition to the important content of his
suggestion, Pardo's efforts were of significance because they
stirred the UN General Assembly to action. Within only a few
weeks, the Assembly had established a Sea-Bed Committee to
study this problem.
On
December 17, 1970, the Assembly declared the sea-bed and ocean
floor and the subsoil thereof, beyond the limits of national
jurisdiction, as well as the resources to be the common
heritage of mankind. A new concept had been established. As
for the origin of the term itself,
US
President Truman is said to have presented a plan at the
Potsdam Conference in 1945 according to which all large rivers
would be governed by a regime of common heritage. The term
"common heritage of mankind" is of immense political
value, but at the same time it can hardly be called a legal
term at present and, if used might well cause confusion rather
than clarify a situation. Nonetheless, the expression could
prove to have a major impact for the law of the sea and beyond
in the future, and it will in any case be of value as a
guideline for interpretation of the deep-sea mining provisions.
7.
The Sea-Bed Committee 1967-1973
and the Preparations for a
Third Conference on the Law of the Sea
In
December 1967, the General Assembly of the United Nations
established the Committee to Study the Peaceful Uses of the
Sea-Bed and the Ocean Floor Beyond the Limits of National
Jurisdiction; at the time it was established, the Committee
consisted of thirty-five members, but was later enlarged to
more than ninety. The Committee was instructed to study all
aspects of international law concerning the deep sea,
including provision of machinery for the exploitation of the
resources in the interests of mankind, and other UN
institutions were charged to support the Committee in its work
by providing information on studies for the prevention of
marine pollution, exploitation of resources, the needs of
developing and land-locked countries, and long-term scientific
considerations, including exchange of data and research
capabilities.
On
the basis of the Committee's proposals, the General Assembly
in 1970 solemnly declared as the first of the principles
governing the sea-bed area the concept of the "common
heritage of mankind." The Assembly further decided that
this and other principles included in the declaration should
be embodied in an international treaty of
universal character and that such a treaty should be drafted
by a Third United Nations Conference on the Law of the Sea to
be convened in 1973.
The
Sea-Bed Committee was instructed to make preparations for the
Conference and draft treaty articles embodying the
international regime of the deep sea area. The Committee
prepared a list of subjects and issues to be dealt with by the
Conference, but failed to produce the text of a single
preparatory document for the Conference. Although several
members or groups of members had submitted various proposals
to the Committee, a concensus could not be reached on basic
texts.
