Law of Seas

A- Introduction:
The seas have historically performed two important functions:
first, as a medium of communication, and secondly as a vast
reservoir of resources, both living and non-living. Both, of these
functions have stimulated the development of legal rules. The Law
of the Sea is that part of Public International Law that regulates the
rights and duties of States, and possibly other subjects of
International Law, with regards to the use and utilization of the
seas in time of peace. In this sense, the Law of the Sea is
distinguished from the private maritime law, which regulates the
rights and obligations of private persons with regards to maritime
matters, such as the carriage of goods and maritime insurance.

B- Definition:
High seas refer to the open ocean which is not within the territorial waters
or jurisdiction of any particular State. High seas constitute the seas or
oceans apart from the territorial waters of any country. It is therefore
beyond the jurisdiction of any nation. High seas transcend international
boundaries. It simply means all parts of the sea that are not included in the
territorial sea or in the internal waters of a State. It is also known as Open
seas.
i- High seas are that part of the sea not fall under the
sovereignty of any state.
ii- The High Seas Convention of 29th April 1958, defines the
high seas as:
All part of the seas not included in the territorial seas or in
the internal waters of a state.
iii- The high seas are subject to the common use by all states,
whether costal or non-costal/land-locked.
Freedom of High Seas
1- Definition:
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1958 Geneva Conventions on the high seas (Article-1):
‘The term, high seas, means the parts of the sea that are not included in
the territorial sea or in the internal waters of a state.’

Third UN Conference on Law of Sea (Single Negotiating Text):

‘High seas, means all parts of the sea that all parts of the sea that are not
included in the exclusive economic zone, in the territorial sea or in the
internal waters of a state, or in the archipelagic waters of an archipelagic
state.

Article 87 of the 1982 Convention provides:

That the 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. It includes inter alia the freedoms of
navigation, overflight, the laying of submarine cables and pipelines, the
construction of artificial islands and other installations permitted under
international law, fishing, and the conduct of scientific research.

M.Shaw:
The essence of the freedom of the high seas is that no state may acquire
sovereignty over parts of them. This is the general rule, but it is subject
to the operation of the doctrines of recognition, acquiescence and
prescription, where, by long usage accepted by other nations, certain
areas of the high seas bounding on the territorial waters of coastal states
may be rendered subject to that state’s sovereignty. This was
emphasized in the Anglo-Norwegian Fisheries case.

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The Doctrine of the freedom of high seas in points:
i- No state may validly subject any part of the high seas to its
sovereignty
ii- There is absolute freedom of navigation on the high seas for
vessels of all nations whether merchant or warships
iii- In general, no state may exercise jurisdiction over ships within
that sea not bearing its flag
iv- A state may, as a general rule, exercise jurisdiction over a
particular ship only by virtue of the maritime flag under which
that ship sails
v- Every state is entitled to make use of the high sea for laying
sub-marine cables and oil pipelines and for the conduct of
fisheries
vi- Freedom of flight above the open sea for all aircraft.

Why is the third UN convention on the law of sea (UNCLOS-III)

considered a vast diplomatic and legal undertaking and what has
made it different to the earlier efforts on the subject?
During the Nineteenth Century and the period before the Second
World War, several unsuccessful attempts were made to codify the
customary law of the sea. After the Second World War, several
conferences were held for the objective of codifying the various
aspects of the Law of the Sea. The first conference was the First
United Nations Conference on the Law of the Sea (UNCLOS I),
known as the 1958 Geneva Conference on the Law of the Sea, which
led to the conclusion of four conventions:
(1) The Convention on the Territorial Sea and Contiguous Zone;
(2) The Convention on the High Seas;
(3) The Convention on the Continental Shelf
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 (4) The Convention on Fishing and Conservation of the Living
Resources of the High Seas.
An Optional Protocol on the Compulsory Settlement of Dispute was
signed.
The 1958 Geneva Conference on the Law of the Sea constitutes the
first major codification of the Law of the Sea. Most of the provisions
of the first two conventions, and some of the provisions of the
Convention on the Continental Shelf, are a codification of customary
law; while the others are a mixture of codification and progressive
development of International Law as understood by the International
Law Commission. Thus, although the conventions are binding only
on States parties to them, many of their provisions can be used as
evidence of customary law against States not parties to them. All
these four conventions are still in force, but for a limited number of
States; the United States of America is among those States since it has
not yet ratified the 1982 Convention on the Law of the Sea. The 1958
Geneva Conference failed to reach agreement on some questions,
particularly on the width of the territorial sea and rights of coastal
States in the areas of the high sea adjacent to their territorial seas. To
deal with such questions, the Second United Nations Conference on
the Law of the Sea (UNCLOS II), which is known as the 1960
Geneva Convention on the Law of the Sea, was convened; but this
Conference failed to achieve its objectives. This reason, in addition to
the dissatisfaction of some States with various rules laid down in the
1958 Convention and the technological, economic and political
developments since its conclusion, led to the convene of the Third
United Nations Conference on the Law of the Sea, 1973-1982
(UNCLOS III). This Conference led to the conclusion of the United
Nations Convention of the Law of the Sea on December, 1982, which
entered into force on November 16, 1994.

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 The 1982 Convention on the Law of the Sea constitutes a
comprehensive codification and development of contemporary
international law governing the Sea in time of peace. Some of the
provisions of the 1982 Convention codify the existing customary
international law of the sea; this is particularly true of those
provisions which repeat those of the four 1958 Conventions which
codified customary law. Almost all the provisions of the four 1958
Conventions are repeated, modified or replaced by the 1982
Convention. But many of the provisions of the 1982 Convention
depart from the existing customary law; and those provisions do not
represent existing law on the Sea for States not parties to the 1982
Convention; they, however, indicate the directions in which the law
may develop in the future. All States are prima facie bound by the
customary rules, while only the parties to a particular convention will
be bound by the new rules contained therein.

The 1982 Convention prevails over the four 1958 Conventions as

among the States parties to it. It deals with most of the issues related
to the Sea. Among these issues are:
(1)Territorial Sea and Contiguous Zone;
(2)Straits Used for International Navigation;
(3)Archipelagic States;
(4)Exclusive Economic Zone;
(5)Continental Shelf;
(6)High Seas;
(7)Regime of Islands;
(8)Enclosed or Semi-Enclosed Seas;
(9)Rights of Access of Land-Locked States to and from the Sea and Freedom of
Transit;
(10)The Area;
(11)Protection and Preservation of the Marine Environment;
(12)Marine Scientific Research;

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 (13)Development and Transfer of Marine Technology; and
(14)Settlement of Disputes.

The Territorial Sea:

a- Internal Waters:
Internal waters are deemed to be such parts of the seas as are not either the
high seas or relevant zones or the territorial sea, and are accordingly classed
as appertaining to the land territory of the coastal state. Internal waters,
whether harbors, lakes or rivers, are such waters as are to be found on
the landward side of the baselines from which the width of the territorial
and other zones is measured,13 and are assimilated with the territory of the
state.
Difference from the territorial sea:
1- They differ from the territorial sea primarily in that there does
not exist any right of innocent passage from which the shipping of other
states may benefit. There is an exception to this rule where the straight
baselines enclose as internal waters what had been territorial waters.
2- A merchant ship in a foreign port or in foreign internal waters is
automatically subject to the local jurisdiction (unless there is an express
agreement to the contrary), although where purely disciplinarian issues
related to the ship’s crew are involved, which do not concern the
maintenance of peace within the territory of the coastal state, then such
matters would by courtesy be left to the authorities of the flag state to
regulate.

b- Baselines
The width of the territorial sea is defined from the low-water mark around the coasts of
the state. This is the traditional principle under customary international law and was
reiterated in article 3 of the Geneva Convention on the Territorial Sea and the
Contiguous Zone in 1958 and article 5 of the 1982 Convention, and the low-water line
along the coast is defined ‘as marked on large-scale charts officially recognized by the
coastal state’. In the majority of cases, it will not be very difficult to locate the low-water
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 line which is to act as the baseline for measuring the width of the territorial sea. By
virtue of the 1958 Convention on the Territorial Sea and the 1982 Law of the Sea
Convention, the low-water line of a low-tide elevation24 may now be used as a baseline
for measuring the breadth of the territorial sea if it is situated wholly or partly within
the territorial sea measured from the mainland or an island. However, a low-tide
elevation wholly situated beyond the territorial sea will generate no territorial sea
of its own. When a low-tide elevation is situated in the overlapping area of the territorial
sea of two states, both are in principle entitled to use this as part of the relevant low-
water line in measuring their respective territorial sea. However, the International
Court has taken the view that low-tide elevations may not be regarded as part of the
territory of the state concerned and thus cannot be fully assimilated with islands. A low-
tide elevation with a lighthouse or similar installation built upon it may be used for the
purpose of drawing a straight baseline.

International straits
Article 16(4) of the 1958 Convention on the Territorial Sea declares that:

there shall be no suspension of the innocent passage of foreign ships through

straits which are used for international navigation between one part of the
high seas and another part of the high seas or the territorial sea of a foreign
state.
This provision should be read in conjunction with the decision in
the Corfu Channel case. In this case, British warships passing through
the straits were fired upon by Albanian guns. Several months later, an
augmented force of cruisers and destroyers sailed through the North Corfu
Channel and two of them were badly damaged after striking mines. This
impelled the British authorities to sweep the Channel three weeks later, and to clear it of
some twenty mines of German manufacture. The Court,
in a much-quoted passage, emphasised 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 authorisation of a coastal state, provided that the passage is
innocent.102
It was also noted that the minesweeping operation was in no way ‘innocent’ and was indeed
a violation of Albania’s sovereignty, although the
earlier passages by British naval vessels were legal.

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