• There are two competing notions in relation to the law of the sea:
o freedom of the seas
In international law, this notion is associated with Huig de Groot (1583-1645)
Grotius was a Dutch lawyer, author of Mare Liberum (1609)
Freedom of the seas was already an identifiable concept in international law, but Grotius developed it to its greatest depth.
The basic principle of Grotius’ thesis was: “Every nation is free to travel to every other nation, and to trade with it”.
This natural and universal law was not affected by custom.
Customary use of an area of the sea could not override natural law. Therefore, since neither laws of possession or conquest, nor custom prevailed over the natural freedom of the seas, the seas were free to all.
o dominion over the seas
Grotius’ theory of freedom of the seas was particularly badly received in England
William Wellwood, a Scottish lawyer, published “An Abridgement of All Sea-Lawes” in 1613. He argued for a 100-mile territorial sea, fisheries protection, and for freedom on the high seas only.
James 1 was very displeased with Grotius’ work, and requested a book in reply. Selden, who was facing prison for a previous book, was delighted to comply, but when the book came to James 1 for approval, he decided it was too controversial in the light of his necessary alliances with the other Protestant powers in Europe, notably Holland.
As for legal principle, Selden formulated a theory of customary law as the basis for the appropriation of certain parts of the sea:
“...that the sea by the law of nature and nations is not common to mankind but is capable of private dominion or property equally with the land ....by the customs of almost all and the more Noble nations that are known to us, such a dominion of the sea is everywhere admitted.”
What emerged by default as much as by reasoned argument, was a ‘ middle’ position in which nations maintained a territorial sea of varying width, and treated the ‘high seas’ outside their respective territorial seas as free.
This has remained the position until the present, and has now been codified in the United Nations Conference on the Law of the Sea treaty (UNCLOS), which provides for a territorial sea of 12 nautical miles (nm) and Exclusive Economic Zones of 200 nm. This means that very large parts of the world’s seas are now appropriated, or capable of appropriation, by individual nations.
• Customary Law of the Sea
o The content of the customary law of the sea is somewhat nebulous - perhaps including:
to have a territorial sea- also ways a big issue for states- how much do they own?
to determine its breadth- now days 12 nautical miles
to protect national fisheries-protection of their food and trade
to have freedom on the high seas- the high seas are getting smaller and smaller today, because of the other areas, EEZ etc o Some states say that all water should be territorialised
o Whatever the actual content, it is generally agreed that this customary law was codified in the conventions which emerged from the 1958 and 1960 Law of the Sea (UNCLOS I and II) meetings.
o AND that UNCLOS III represents the customary law today
• UNCLOS I AND II 1958/60
o Convention on the Territorial Sea and the Contiguous Zone (came into force 10-9-64)
o Convention on the High Seas ( 30-9-62)
o Convention on the Continental Shelf ( 10-6-64)
o Convention on Fishing and Conservation of the Living Resources of the High Seas ( 20-3-66)
o However, few ratifications (average 40) mean the 1958 Conventions have doubtful international validity
o they did not fix a maximum limit to which a country’s territorial sea could be extended
o they did not describe a definite boundary for the continental shelf
• UNCLOS III began because of concern over the possible exploitation of the resources of the sea-bed and the ocean floor on a competitive basis
• It was believed by some that this would lead to neo-colonialism, diplomatic conflict and war
• The resources of the sea-bed and the ocean floor were described by the UN as “the legacy of all human beings”
• Moratorium on exploitation of resources of the sea-bed and the ocean floor (UN Resolution 2574D (XXIV)). The smaller states could not have the
advantage of the common sea bed, the big states could mine and reap the benefits of the sea bed and this wasn’t just.
• This hasn’t become a large issue because there has not been enough advancement of technology yet, however at the time it was considered important
• Declaration of Principles governing sea-bed and ocean floor (UN Resolution 2749(XXV)): this made the deep sea bed “the common heritage of
humankind” the resources of these areas will be shared by all (this is a very 60’s and 70’s approach)
• Inaugurated in December 1973, following UN Resolution 3067 (XXVIII) with the first session being held in Caracas, Venezuela, from June 20, 1974.
• Purpose: to establish an equitable international regime covering a wide range of LOS issues including: territorial sea, contiguous zone, continental shelf, exclusive economic zone, high seas, fisheries, conservation of
resources, etc.
• Covers almost everything dealing with the law of the sea in one convention, it is useful on that basis. Whether it is equitable is open for interpretation
• Opened for signature on 10 December 1982 at Montego Bay, Jamaica
• 119 countries signed immediately (a record). Now, 157 countries have signed.
• Ratifications required for entry into force: 60 60th ratification: Guyana, on 16-11-93.
• Therefore, entered into force on 16-11-94.
• Currently, 149 ratifications
• Problems with the new UNCLOS
o The USA voted against UNCLOS at the final session of negotiations o Regan was a Republican and he wanted no part of part Xi of UNCLOS o The US was unhappy with Part XI, on the deep-sea mining question
(States can go and exploit the sea-bed but all profits must be shared) o US said that we were the ones with the technology and we are the
ones who will go out and reap the benefits, they will not share the profits
o BIGGER PROBLEM: the US passed its own legislation (Deep Sea Bed Hard Mineral Resources Act 1980(USA)
o Other countries (UK, former USSR) followed suit at the time the UK and USSR were the super powers and they were not keen to share with the other countries and if America could, so could they (very childish) o Art 309 – forbids reservations or exceptions, so states like the US don’t
sign the whole lot because of an issue with one part
o Art 312 – no amendments for 10 years after UNCLOS enters into force (which would be 2004 but then there was the amendment to Part XI in breach of this rule)
o Art 155 – review of Part XI not to take place until 15 years after first commercial production from sea bed <> not even close to this, but Part XI has already been amended
o Australia’s position on UNCLOS
Australia signed on 10-12-82
Australia ratified on 5 October 1994
Australia signed the Part XI agreement on 28 July 1994
Australia ratified the Part XI Agreement on 5 October 1994