1. Law of the Sea
The 1958 Conventions on Law of the Sea
The Geneva Conferences on the Law of the Sea 1958 and 1960 resulted in the entry into force and ratification of four
conventions on Territorial Sea and Contiguous Zone, High Seas, Continental Shelf and Fishing and Conservation… The
High Seas convention claims to merely declare established principles of international law. The others both codified and
progressively developed international law. The conventions did much to advance the law of the sea but they fell short in
several ways. They did not, for example, state the width if the territorial sea nor did they define the fishing rights of states
beyond their territorial sea. These and the other problems with the conventions were addressed and corrected by the 1982
The 1982 Convention on the Law of the Sea
This extended and improved the previous four conventions. It included new rules on the exclusive economic zone and the
deep seabed. The main changes included:
- the acceptance of a 12 mile territorial sea,
- provision for transit passage through international straits,
- increased rights for archipelagic and land-locked states,
- stricter control of marine pollution,
- provisions for fisheries conservation,
- acceptance of a 200 mile exclusive economic zone for coastal states,
- provision for the development of deep sea-bed resources
- provision for the settlement of disputes arising under it.
The convention was aimed at contributing to ‘the realization of a just and equitable international economic order which
takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of
developing countries, whether costal or landlocked.’
Although mostly formulated in 1982, because of the dissatisfaction of various developed states with different articles it
did not enter into force until 1994 after an implementing agreement was agreed upon which amended certain articles to
the satisfaction of developed states. Many states still have not become parties to the convention but it seems that many of
its rules have been confirmed or accepted as being binding as custom.
It is noteworthy that the convention made no provision for reservations. The convention implemented a number of
compromises rather than leave it to states to accept the terms they liked and disregard the others. This ensures that the
rights claimed by states are accepted with their accompanying duties. Thus some have taken a package approach to the
convention. Others however have chosen to assess each rule of the convention separately as it arose for consideration in
The Schooner Exchange v McFaddon
M, an American, tried to claim a French naval vessel which docked in Philadelphia on the grounds that it was actually his
ship which had been seized by France on the high seas in accordance with a Napoleonic decree. The AG of the US
suggested that the court should refuse jurisdiction on the grounds of sovereign immunity.
HELD: Only the state can impose a limitation on the absolute and exclusive jurisdiction it enjoys within its own territory.
Since every state is sovereign and each sovereign is equal one sovereign should not be able to exercise jurisdiction over
another. Thus sovereign immunity even if not expressed is implied for a sovereign who venture into the territory of
another. Every sovereign is taken to have waived a part of its jurisdiction. For example a sovereign cannot arrest or detain
the sovereign of another state within its territory. Similarly, the ministers of another state are immune from arrest within a
foreign territory. Ordinary citizens and merchant vessels of a state are amenable to the jurisdiction of another state while
within its territory. However, military vessels, acting under the immediate and direct command of a sovereign, employed
by the sovereign in national objects are exempt from another state’s jurisdiction.
The doctrine of state immunity may be justified on the basis of equality, independence and dignity of states. It is
supported by the maxim:
‘par in parem non habet imperium’
‘an equal has no authority over an equal.’
Although there is a move away from absolute immunity toward restricted immunity, sovereign immunity has not been
According to Lord Denning:
‘it is more in keeping with the dignity of a foreign sovereign to submit himself to the rule of law than to claim to
be above it, and his independence is better ensured by accepting the decisions of courts of acknowledged
impartiality than by arbitrarily rejecting their jurisdiction.’
Lord Denning recognizes a move by some states toward making foreign sovereigns and ministers liable in their own
courts so as not to afford them an immunity not given to local sovereigns and ministers.
R v Anderson
D, an American working aboard a British ship, was convicted of a crime committed in French territory. He appealed on
the ground that the court had no jurisdiction to try him.
2. HELD: Since the crime was committed in France’s territorial waters, D was subject to French jurisdiction. However since
it was committed aboard a British ship and Britain could protect its vessels even in a foreign port, D was also subject to
British jurisdiction. Past experience suggests that France will not enforce its jurisdiction in such a situation unless invoked
to do so by the master of the vessel or the offence leads to a disturbance of the peace. As, the offence was committed a
point which made it the same as if it were committed on the high seas. On this basis D was amenable to British law.
Note: In the above case Byles J compared the ship to a floating island so that a person who commits a crime aboard would
be amenable to the jurisdiction of the ship’s country just as if he had committed the crime in the actual territory. It is
suggested that this view must be discarded as distorting international law as it relates to the law of the sea.
D, a Belgian, was found guilty by an American court of killing another Belgian aboard a Belgian ship docked in an
American port. It was argued in an application for habeas corpus that the US lacked jurisdiction because of an 1880
convention between the US and Belgium.
HELD: In the absence of a treaty provision to the contrary, a merchant vessel in a foreign port is amenable to the
jurisdiction of that state because the owner of the vessel seeks the protection of the sovereign and therefore owes him
some allegiance in return. It is only as a matter of comity that states choose to leave it to the authority of the nation to
which the ship to deal with disciplinary matters affecting the ship only and only exercise their jurisdiction over those acts
which disturb the peace and tranquility of their country. States have therefore entered treaties and conventions in order to
prevent the inconvenience that might arise from attempts to exercise conflicting jurisdictions. The US and Belgium were
parties to one such treaty. By their agreement, Belgium had exclusive jurisdiction over the offence unless it disturbs the
public peace or repose of the US. An offence disturbs the public peace if it is ‘of a character to affect those on shore or in
the port when it becomes known.’ It is irrelevant whether anyone other than those on board the ship witnessed its
commission. It is offences which by their very nature affect the community at large and whose gravity are such that
civilized nations feel bound to punish them severely which meet fit this description. It will at times be necessary to
consider the circumstances of the case to determine whether an offence disturbs only the peace of the ship or the peace of
the country as well. However, a felonious homicide (the crime in the instant case) is conceded to be a subject of local
authority. The habeas corpus will therefore be granted.
The state adopted the common law view refusing to view the practice in question as a limitation on international law
rather than as an act of comity.
[Re: 1982 UNCLOS Art. 2 – 15]
R v Keyn (1876)
A German ship collided with a British ship in the English Channel 3 miles off the English coast with the result that a
passenger aboard the British ship died. D, the German captain was prosecuted and convicted in British courts for
manslaughter. The second court to hear the case decided that the British courts had no jurisdiction to try the case.
Cockburn CJ reasoned that on aboard a foreign ship on the high seas, the foreigner is liable to the law of the foreign ship
only. However the ship becomes subject to local laws as soon as it comes into waters of another state. This was a rule of
international law long adopted into British municipal law. Thus, Keyn could only be tried in British courts if the offence
was committed in British territory. The important question then was whether the English Channel was part of English
territory. The extent of a state’s territorial sea could only be determined by parliament through legislation. Neither custom
nor treaties between other states could determine it since these were only evidence of assent by nations and would call
into question the strength of that assent. (At most, custom and treaties between other territories could only influence
parliament to enact such legislation.)
Cockburn CJ then considered whether that a foreigner could become subject to the laws of the state if the state gains
control of a part of that which was once the high seas through the acquiescence of other states to its outward manifestation
of national will through open practice or municipal legislation amounting to constructive occupation. He acknowledged
that such actions by a state would give its parliament the right to legislate for the area but pointed out that until such
legislation had been passed the courts could not apply the laws of the state to a foreigner in ways and situations in which it
had never applied before.
On the point of where the offence was committed, Cockburn CJ ruled that although the offence had effect on the British
ship it had not been committed there so the British had no jurisdiction over it.
Note: The decision in R v Keyn was reversed by the Territorial Waters Jurisdiction Act 1878 which gives Britain
jurisdiction over the open seas adjacent to her coasts and ‘all other parts of Her Majesty’s dominions to such a distance as
is necessary for the defense and security of such dominions...’
Anglo-Norwegian Fisheries Case (UK v Norway)
By a 1935 treaty the UK agreed for various reasons that Norway’s Fishery Zone was to be 4 miles instead of the usual 3.
Norway measured the zone from straight baselines linking the outermost points of land (some of which were over 30
miles long) instead of from the low-water mark line as was the norm. By using the baseline method of delimitation,
Norway enclosed in its territorial seas, waters which would otherwise have been high seas open to foreign fishing.
Norwegian enforcement of its system gave rise to disputes involving British fishing vessels. The UK challenged the
legality of Norway’s straight baseline system and the choice of certain baselines used in applying it.
HELD: It is customary to use the lower-water mark line and both states agree on its use but they disagree on its
application. The court had to decide which of the lower-water marks in question was to be used, that of the Norwegian
mainland or that of the rocks and islands.
3. The court considered three possible solutions:
1. the use of the ‘trace parallele’. This method followed the coast strictly. It was ideal for unbroken coastlines and
those coastlines which were free of deep indentations and archipelagos. For this reason the court found it
irrelevant to the present case.
2. the use of the baseline method. This method also follows the coast but ‘within reasonable limits, may depart from
the physical line of the coast’.
3. the use of the ‘courbe tangente’ or arcs of circles method. This method applies the principle that the belt of
territorial waters must follow the line of the coast. It consists of drawing straight lines between appropriate points
selected on the lower-water mark. This method is more suitable for irregular coastlines. It has the advantage of
making it possible to fix criteria for its delimitation. Although several states have adopted this method using
straight baselines without any objection, its use was still not obligatory by law.
The UK while recognizing Norway’s claim to historic titles, favoured a partial application of the third method, that
Norway could draw straight lines but only across bays. The UK also contended that it should be regarded as a rule of
international law that the length of straight lines should not exceed 10 miles.
The Court rejected this contention holding instead that the 10-mile rule had been adopted by some states but it was not a
general rule of international law. At most the practice of the state made the 10-mile rule a proposal not a general rule of
international law. In any case it could not have been applied to Norway since Norway had always protested its use.
The court stated that it was the coastal state that was in the best position to appraise the local conditions dictating the
choice of method.
Norway had undertaken a method of delimitation in a 1935 decree which it claimed represented a traditional system of
delimitation and was in complete conformity with international law. Norway argued that the 1935 decree was a necessary
adaptation of international law which took into account the diversity of facts so that the drawing of straight baseline could
be adopted to the special conditions of each region.
The court acknowledged that delimitation was also an international issue and therefore even this decree was subject to
certain principles and not merely dependent on the will of the coastal state as expressed in its laws. The court identified
three considerations to be taken into account when judging the validity of delimitations:
1. the close dependence of the territorial sea upon the land domain
2. the relatively close relationship existing between certain sea areas and the land formations which divide and
3. certain economic interests peculiar to the region, the reality and importance of which are evidenced by long usage.
The court found that despite a few apparent uncertainties and contradictions, Norway had applied its system of
delimitation consistently over a long period and that its application had never been subject to the protests of foreign states.
The court refused to accept the UK’s argument that it had not known of the system. The court therefore found that
Norway had been justified in enforcing the system against the UK.
The only question then left for the court to decide was whether Norway had conformed to the 1935 Decree. Norway
admitted that baselines were to be drawn in a reasonable manner in the general direction of the coast. The UK criticized
the delimitation of a particular section of the coast as not meeting this requirement. The court rejected this criticism on the
basis that the general direction of the coast could not be accessed with any mathematical precision and Norway had rights
based on historic title founded on the needs of the people and attested by long peaceful usage.
HELD: the 1935 decree was not contrary to international law and neither were the baselines established by it
1. The judgment in this case has been accepted by states and almost certainly reflects customary international law.
2. The trace parrallele method is difficult to apply and therefore apparently not practiced. The arc of circles method
is easier to apply but leads to awkward results on exceptionally irregular coastlines.
3. It is questionable whether the court ruled for Norway because its system was permitted by custom or because it
established historic title. The decision also leaves many questions unanswered.
The 1982 Convention follows the approach of the ICJ in the Anglo-Norwegian Fisheries Case with the only difference
being that it requires that the low-tide elevations be permanently above sea level to be used as the beginnings of a straight
baseline with the effect that the limits of the territorial sea and other areas of maritime jurisdiction of states have been
extended outwards. [Re Art. 7(6) and Art. 8(2)] However, like the rules relating to baselines in the 1958 Convention,
those in the 1982 Convention are also ambiguous and, without any international authority to supervise them, states have
been able to abuse the system by drawing straight lines even where it was not necessary. One zone in particular was
established without use of the low-water line or the straight baseline method. The 1986 Falkland Islands Interim Fishing
Zone was delimited by drawing a line 150miles in circumference from a point in the islands.
Mortensen v Peters
A Scottish act and byelaw made it an offence punishable by crime or imprisonment to fish by trawling in the Moray Firth.
The Act covered an area located 3 miles off the coast of Scotland. D, a Dane on board a Norwegian ship was convicted in
Scottish courts for fishing in an area covered by the byelaw but beyond 3mile limit. D appealed. He argued that a statute
creating an offence was to be presumed to apply only to British nationals and foreigners in British territory unless its
application was expressly extended. On this basis he argued that he ought not to have been convicted since he was not a
British citizen and since he was fishing outside the 3mile limit, he had not been caught within British territory. He also
argued that international law did not allow territorial sovereignty to be exercised over a foreigner in such a place.
4. HELD: (DUNEDIN LJ) The appeal was dismissed. It was said that it was not for the court to decide whether a local law
was ultra vires international law. The role of the court is to give effect to whatever law is passed so long as it is passed
following the correct procedure. The act doesn’t prohibit all fishing; it prohibits fishing in a certain place. The legislature
in passing the act was assuming the right to legislate against all the people in the territory covered by it. It would not make
sense in this case to legislate against some persons but not all. The court recognized that international law had been
recognized and made part of Scottish law but his Lordship argued that the fact that international law said that a state could
legislate for an area of 3mles did not mean that the state could not legislate beyond that. In this case the locus although
beyond the 3-mile limit was within the Moray Firth and past cases admit to the right of a state to legislate for landlocked
or land embraced waters beyond the 3-mile limit. All factors considered, the court could not say that the Moray Firth was
for all purposes within British territorial sovereignty but neither could it say that Britain could never legislate for it. In this
case, Britain seems to have done so.
(LORD KYLLACHY) The court could only question the construction of the act not the Legislature’s power to enact it.
There is always a presumption against Legislatures asserting jurisdiction over an area beyond the limits set by
international law. Like other presumptions this one can be rebutted by express words, implication or a counter-
The case concerned custom and statute. A statute may incorporate a rule of international law by reference e.g. to another
law or treaty.
(The trawler was British but given a Danish master to circumvent fishing regulations.)
According to Art. 10 of the 1982 Convention, any area of water which fits the convention’s definition of a bay is internal
water through which innocent passage is not allowed as of right. At first a closing line of 10 miles was once proposed for
bays. Then in 1956, the International law Commission proposed a closing line of 25 miles. This was later reduced to 15
miles because of lack of support. A number of governments believed an extension to 25 miles would have been excessive.
The 1958 Convention and Art. 10 of the 1982 Convention set the closing line at 24 miles rejecting the previous proposals.
In view of the fact that it has been adopted by most of the states of the world, the Geneva Convention may be viewed as
the best evidence of international law on the subject. The International Court of Justice in the Anglo-Norwegian Fisheries
case rejected the so-called 10-mile rule previously considered by some countries.
Neither the 1958 nor the 1982 Conventions govern bays bordered by more than one states or historic bays which can exist
at customary international law. However, Colombos states that, in the case of bays bordered by one states, ‘the territorial
waters should follow the sinousities of the coast…subject to any special agreement.’
There is international case law which suggests that:
1. in cases of historical bays surrounded by more than one states, those states must sovereignty over that waters
landward of the closing line.
2. by international standard, waters had to be subject to ‘past open, notorious and effective exercise of authority, and
acquiescence of foreign nations’ to be regarded as historically internal or territorial waters.
For example, the Court in the Continental Shelf Case where Tunisia claimed historically rights to territory noted that
historical titles including those to historic bays ‘must enjoy respect and be preserved as they always have been by long
usage’. This indicates a distinction between bays conforming to Art.10 of the 1982 Convention which are valid
irrespective of the response of other states, and historic bays which depend upon their consent. The Court also stated that
then matter continues to be governed by general customary international law which provides a distinct legal regime for
each concrete recognized case of historical waters. One regime is based on acquisition and occupation while the other is
based on the existence of rights ‘ipso facto and ab initio’ and states are free to rely on one or both.
The apparent lack of a maximum length for a closing line for historical bays suggests that states are free to accept lines of
In 1963, volcanic activity resulted in the creation of the island of Surtsey in Iceland’s territorial waters. According to Art.
60(8) of the 1982 Convention, artificial islands, installations and structures are not islands. Because of the possibility of
exploiting natural resources in the seabed surrounding them, small islands have become more and more important. Article
121 of the 1982 Convention which is said to reflect the present status of international law, merely repeats the definition of
islands and the rules related to them in Art. 10 of the 1958 Convention. However, the 1982 Convention goes further by
restricting the circumstances in which it may have territorial sea. Two main factors seem to indicate that the closing line is
accepted as 24 miles: the adoption of the convention by a large number of states and the ICJ’s rejection of the 10mile rule
in the Anglo-Norwegian Fisheries Case.
A state cannot therefore lay claim to a bay extending over 24miles unless it is an ‘historic bay’.
The Corfu Channel Case
The court was asked to rule on two incidents.
The October incident:
In October 1946, two British cruisers and two destroyers were sent through the Corfu Channel without having received
previous authorization from the Albanian government. While passing through the Channel the two cruisers were fired at
by an Albanian vessel. The UK government immediately protested that innocent passage through straits was a right
recognized by international law. The Albania government argued that
1. foreign warships and merchant vessels had no right to pass through the state’s territorial waters without prior
notification to, and the permission of the state.
2. the nature of the Corfu Channel as only a secondary and unnecessary route and its use almost exclusively for local
traffic took it out of the category of straits through which innocent passage was allowed.
3. even if there was a right of innocent passage (through the Channel), the passage of the British cruisers had not
5. The court was asked to decide whether, under international law, the acts of the UK Royal Navy in Albania were a
violation of Albanian sovereignty and whether there was a duty to give satisfaction.
The Court said that it was a generally recognized custom that states in a 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 authorization of
the coastal state providing passage was innocent. Coastal states had no right to prohibit innocent passage during times of
The court also ruled that the important criteria was whether the strait connected two parts of the high seas and was used
for international navigation, not the amount of traffic through it, its necessity as a route, or its importance for such
In light of the danger anticipated from Greece who had made territorial claims with regard to Albanian territory bordering
the Corfu Channel, Albania would have been justified in regulating but not prohibiting the passage of warships through
the strait. The regulation did not include the requirement of authorization. As such, Albanian claim that the passage of
British warships without authorization violated its sovereignty was not accepted.
The reasoned that the fact that Albania denied British right to innocent passage did not bind the UK to abstain to abstain
from exercising it and contrary to Albanian contention the passage of the vessels was innocent (i.e. there were no soldiers
aboard and the guns were not loaded) and not a violation of Albanian sovereignty.
The November incident:
In the following month, ‘Operation Retail’ the British entered Albanian waters against the express wish of the Albanian
government and without the consent of the relevant international organizations to carry out minesweeping. The UK
acknowledged that this was against international law which does not allow a state to assemble a large number of warships
in the territorial waters of another state and to carry out minesweeping. The UK justified its actions in two ways, first as
intervention to secure evidence and secondly as self-protection or self-help. Albania criticized the method by which the
operation was carried out on the grounds that the force was both unnecessary and disproportionate. The court held that
Albania’s criticism was not justified because the force was not used as an exercise of political pressure. It was a
precaution taken by the UK in response to previous acts by Albania. The court did not accept British arguments of
intervention however. It found instead that the UK acts constituted a manifestation of a policy of force which had no
place in international law. The court therefore declared that the action of the UK constituted a violation of Albanian
Thus, the court ruled for the UK in respect of the passage in October, but ruled in favour of Albania with respect
to the minesweeping operation in November.
[Re: 1982 UNCLOS Arts. 17 – 32]
Notes: Vessels entitled to innocent passage
International law relating to the innocent passage of vessels through the territorial waters of others has always been
uncertain. There appears to be four positions:
1. Some states have acknowledged a general right of passage for all vessels.
2. Some states (e.g. Britain - 1896) acknowledge a right of passage for some vessels (e.g. merchant ships) but not
others (e.g. warships).
3. Some states acknowledge a right of passage through international straits in the territorial sea. [Re Corfu Channel
4. Other states consider that the passage, of warships should be ‘subject to previous authorization and notification’.
[Re: 1956 International Law Commission Draft Article later rejected at Geneva]
The 1982 Convention has no provision relating to a right of passage of vessels through territorial waters. It merely
requires that submarines navigate on the surface.
Notes: The meaning of passage
Art.18 of the 1982 Convention defines passage. The ICJ in the Nicaragua Case stated that foreign vessels had a customary
right of innocent passage through territorial waters in order to enter and leave internal waters and access ports.
Notes: Innocence of passage
Art.19 of the 1982 Convention defines ‘innocent’ and identifies activities which would prejudice the innocence of a ship’s
passage. Art.20 requires submarines to navigate on the surface with their flag displayed but does not say whether failure to
comply would make their passage non-innocent. According to Art.23 the passage of nuclear powered ships and ships
carrying nuclear substances is not in itself non-innocent. Fishing activities are non-innocent but failure to comply with
fishing regulations is not. It has been suggested that the 1980 Draft Convention which links innocence with things within
the coastal state’s competence could have the effect of putting the burden on the state to prove non-innocence.
Notes: Laws governing passage
The laws and regulations which a coastal state may make governing passage are provided for in Arts.21-24 of the 1982
Convention. Art.21 seems to favor the civil law view that in light of the fact that ships are the territory of their flag state
and therefore coastal states have only such prescriptive jurisdiction as is generally agreed. This is as opposed to the
common law view that a state’s territorial sea is its sovereign territory and as such the state has unlimited power to
legislate on civil and criminal matters for all ships within it.
Notes: Enforcement powers in respect of non-innocent passage
Art.25 of the 1982 Convention authorizes coastal states to ‘take the necessary steps’ to prevent non-innocent passage.
These steps include reasonable force as a last resort. Art.27 gives coastal states the power to arrest merchant or
government ships in their waters if their non-innocent passage constitutes a criminal offence under the laws of the state.
Notes: Civil & Criminal jurisdiction over foreign merchant ships in territorial seas
6. Arts.27 and 28 of the 1982 Convention have been interpreted by some states as rules of comity and by others as binding
rules of law. This is partly because these provisions employ the word ‘should’ instead of ‘may’. The US suggested the use
of ‘should’ in acknowledgement of the coastal state’s unlimited jurisdiction within its territorial seas. State practice as to
whether a state can stop a vessel in order to exercise civil jurisdiction against a person on board is ambiguous.
The articles give coastal states enforcement jurisdiction over commercial vessels only. Warships and other non-
commercial vessels are not subject to such jurisdiction, however, Art.30 allows the coastal state to take measures to
remove warships and Art.31 makes a flag state responsible for damage resulting from breach of a local law by warships
and non-commercial government vessels.
In Pianka v The Queen, US citizens cleared to travel in their boat from a Jamaican Port to the US were discovered to be in
possession of ganja. They appealed against prosecution in a Jamaican court on the basis that it was against Art.19 of the
1958 Convention to which Jamaica was a party. Their appeal was rejected on the grounds that they had made the passage
non-innocent by contravening the criminal laws of Jamaica in a manner ‘prejudicial to the good order’ of Jamaica’s
territorial sea and therefore fell within the exceptions to Art.19. The PC upholding the judgment said that the provisions of
Art.19 were to be given a liberal construction.
In The David, Panama claimed that US’s arrest of a Panamanian merchant ship in a part of the Canal Zone subject to US
jurisdiction was contrary to international law. The arrest was in connection with civil proceedings related to a collision in
which the ship had been involved two years earlier. The tribunal rejected Panama’s claim on the grounds that there was no
authority to the effect that foreign merchant ships passing through a state’s territorial waters were exempt from civil
arrest. The dissenting view of the Panamanian Commissioner was that a state could only assert such authority with respect
to crimes committed within its jurisdiction which affect its territorial sovereign interests.
The consequences of the crime are presumed to extend to the coastal state in such crimes as smuggling, illegal
immigration, pollution and violations of security laws but it is not certain whether it would do so solely because the
perpetrator or victim of the crime aboard a foreign ship was a national of the coastal state.
Look back at the Corfu Channel Case
[Re: 1982 UNCLOS Arts. 25, 34-45]
Notes: Passage through international straits
The ICJ in the Corfu Channel case recognized that as a rule of customary international law, a coastal state use the need for
security as justification for suspending the right of a foreign vessel to innocent passage through a part of its territorial sea
which is an international strait used for navigation from one part of the high seas to another. Art.16(4) of the 1958
Convention which extends this rule to straits leading for the high seas into a state’s territorial sea was repeated in Art. 45
of the 1982 Convention. In 1967 the UN Security Council, in response to the Arab-Israeli conflict over the Strait of Tiran
passed a resolution in which it refers to the need to guarantee ‘freedom of navigation through international waterways’.
Various degrees of passage through other states have been guaranteed by treaties.
Notes: The right of transit passage
The widening by states of their territorial seas in recent times has been viewed as an encroachment upon the freedom of
the high seas. In response to this, the 1982 Convention provides a right of transit passage through international straits
within the territorial sea of coastal states. It does not however apply to
1.) a strait through which there exists ‘a route through the high seas r through an exclusive economic zone…’;
2.) certain island situations; and
3.) straits between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign state.
The ordinary right of innocent passage through the territorial sea still applies to (1) and (3) with the exception that this
right is limited in the case of international straits.
The right to transit passage through international straits is more generous than the right to innocent passage through other
parts of the territorial sea in that
a. it expressly allows passage by state aircraft, including military aircrafts;
b. it probably allows passage by warships; and
c. it may even extend to include underwater passage by submarines. It is also less restrictive of conduct during
passage and gives the coastal state less power to regulate passage.
The provisions of the 1982 Convention are viewed by some as stating what was already customary international law.
[Re: 1982 UNCLOS, Art. 33]
The Pueblo Incident (1968)
In January 1968, The Pueblo, a US spy ship was ordered to heave to by North Korean patrol ships off the coast of North
Korea. The ship was captured by the Koreans 15 miles from the nearest land. An American injured in the struggle during
the ship’s capture later succumbed to his injury. In February, the US sent a telegram to all its diplomatic posts stating that
the US did not know how much territorial sea was claimed by North Korea and had reasonably assumed it to be 12 miles.
The telegram also stated that the ship was a US navy vessel and therefore subject to immunity in accordance with both the
1958 Convention and traditional international law. From the US perspective the ship had been captured on the high seas
and not in North Korean waters. The US argued that even if the ship had been seized in North Korean waters the seizure
would have been improper since in the absence of threat of armed attack (which was lacking in the case) the strongest
action that could be legitimately taken by a coastal state was to escort a foreign naval vessel out of its territorial waters.
This restriction on a coastal state’s use of force is articulated in Art.23 of the 1958 Convention.
The ship’s crew was detained without trial until December when they were returned to the US after US admission that the
ship had been spying in Korean territorial sea.
7. Archipelagic Waters
In 1957 Indonesia announced that it would measure its territorial sea over which it would exercise absolute sovereignty
from straight baselines connecting the state’s outermost points but that it would allow the innocent passage of foreign
vessels through these waters as long as it was not contrary to the state’s security. The UK protested. The International
Law Commission failed to formulate a rule on archipelagos and the 1958 Convention made no provision for the matter.
Art.47 of the 1982 Convention provided that straight baselines could be used by mid-ocean archipelagic states but not by
continental states with off-lying archipelagos. Art.49 places the waters thus enclosed within the sovereignty of the
archipelagic state but made them subject to the right of innocent passage provided for in Art.52 and the right of
archipelagic sea-lanes passage provided for in Art.53 which is similar to the right of transit passage through international
straits and includes overflight by aircraft. The right of archipelagic sea-lanes passage, unlike the right to innocent passage
is not suspendable. Art.51 imposes limitations on the archipelagic state. It must recognize and respect the legitimate
activities of neighbouring states.
[Re: 1982 UNCLOS Arts. 46 –54]
Exclusive Economic Zone
[Re: 1982 UNCLOS, Arts. 55-62, 68, 73-4]
The exclusive economic zone combines and develops the concept of the exclusive fishing zone (a zone of the sea adjacent
to a coastal state’s territorial sea within which it has exclusive jurisdiction over fishing) and the doctrine of the continental
shelf. In the 1940s certain Latin American states claimed up to 200 miles of exclusive fishing zone. This was protested by
many other states. In 1958, it was agreed by the majority of states that in the absence of contrary agreement fishing
beyond territorial sea was open to all states. A 12-mile exclusive fishing zone has since been generally accepted. However
many states still claimed 200 miles of exclusive economic zone and this has now become a common practice of states to
the extent that there is now little protest against it.
The Continental Shelf
The Truman Proclamation on the Continental Shelf
The US recognized the need to encourage the discovery and provision of resources and the need for jurisdiction to govern
the use and conservation of these resources. The US saw it as reasonable and just for this jurisdiction to be exercised by
the contiguous state since the continental shelf usually forms a seaward extension of deposits within the territory and can
therefore be considered an extension of the landmass appurtenant to the coastal state. In light of this the US declared its
policy to treat the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous
to the coasts of the US as appertaining to the US and subject to its jurisdiction and control. Where the continental shelf
extended to another state’s territory, the US and that state would determine the boundary in accordance with equitable
1. The Truman Proclamations represents the first of many such declarations. It was aimed at filing a gap in
2. The continental shelf generally extends to a depth of about 200 metres but goes beyond this in some places. It
varies in width.
3. In 1951, in the Abu Dhabi Arbitration, Lord Asquith in considering the status of the continental shelf doctrine in
customary international law said that it was too tentative, explorative and incomplete to be an established rule of
Notes: No territorial sovereignty
The Truman Proclamation and other similar declarations make no claim to sovereignty and Art.77 of the 1982 Convention
awards none. Art.77 gives coastal states only limited rights over continental shelves. Those states which have claimed
national sovereignty have met with protest.
Notes: Living resources
Customary international law prior to the Conventions probably resolved disputes over living organisms based on
occupation. More likely as progressive development than codification, the 1958 and 1982 Conventions provided for both
living and mineral resources although the Truman Proclamation was only concerned with mineral resources.
Art.77(4) of the 1982 Convention refers to ‘living organisms belonging to the sedentary species’. This group appears to
include creatures which crawl on the sea floor but exclude creatures which swim. In 1963, a conflict occurred between
France and Brazil over the fishing of crawfish in the Brazilian continental shelf. Crawfish generally clamber about but
will swim if pursued. Both states disputed whether crawfish were included in the provision. Although neither state was a
party to the 1958 Convention both relied on it to support their claims.
Notes: Maritime boundaries
There have disputes concerning the boundaries between continental shelves and exclusive fishery zones. These have at
times been treated as a single boundary and at other times as separate boundaries. While a few disputes have been decided
on the basis of the 1958 convention, the majority has been decided on the basis of customary international law. The ICJ
8. and Arbitral tribunals have tried to apply the same general approach in customary and treaty law to cases while in each
case considering those factors emphasized by the particular facts.
Art.83 of the 1982 Convention requires that states disputing continental shelves reach an equitable agreement on the basis
of international law and where this is not achieved to resolve the dispute in accordance with the Convention.
Art.6(2) of the 1958 Convention gives states the right to make agreements and demands the application of an equidistance
rule in the absence of such agreement.
The court was called upon in the North Sea Continental Shelf Cases and others to decide on continental shelf
delimitations. The ICJ in the North Sea Continental Shelf Case involving Tunisia, after ruling that the provision in the
Convention was not applicable to the case, achieved an equitable result by applying customary international law. The
court stressed that each case needed to be judged on its own merits and having regard to its particular circumstances.
Following this approach, the court decided not to apply the equidistance rule in that case. Then, in the North Sea
Continental Shelf Case involving Malta, it stressed reliance on the equidistance rule in the case of opposite states. It would
appear from both North Sea Continental Shelf Cases that the factors peculiar to each case were important considerations
but nevertheless had to be servient to the need to satisfy equitable principles.
It is only in the Gulf of Maine Case that the ICJ was called upon to determine the ‘single maritime boundary’ between
continental shelves and exclusive fishing zones. There too the court recognized the need to achieve an equitable result and
therefore saw it necessary to rule out the application of any particular criteria which might prejudice the continental shelf
or the water area above it. Although both states were parties to the 1958 Convention the court held that Art.6(2)of the
Continental Shelf Convention did not apply since the issue here was the delimitation of a single maritime boundary.
In the Anglo-French Continental Shelf Case the court was asked to delimit the continental shelves of the UK and France.
In this case, the court of arbitration in contrast to the ICJ decided the case on the basis of Art.6(2) to which both states
were parties. The court observed that the effect of Art.6 was to combine the equidistance principle and the special
circumstances rule into one rule so that in each case both had to be considered.
Thus both the 1958 Convention and customary international law, and now Art.83(1) of the 1982 Convention require
equitable solutions. However states differ as to what they consider equitable.
[Re: 1982 UNCLOS Art.77 – 85]
North Sea Continental Shelf Cases.
Attempts were made to delimit by bilateral agreement the continental shelves shared by Germany and Denmark and
Germany and The Netherlands. The parties could not agree on the delimitation of more than a small area. The parties
submitted the question to the ICJ. The court had to decide the rules and principles of international law which needed to be
applied in the process of delimitating these continental shelves. Denmark and The Netherlands argued for the use of the
‘equidistance-special circumstances principle’ in Art.6(2) of the 1958 Convention which they claimed declared customary
international law. Alternatively, they argued that even if the rule did not exist prior to the Convention, subsequent state
practice had made it a rule binding on all states and therefore applicable to the delimitation in question. Germany argued
for ‘the doctrine of the just and equitable share’. Germany opposed principle suggested by the other two states because, in
the case of a concave coastline, it had the effect of giving the middle state (here, Germany) a smaller share of the
continental shelf than would otherwise be had.
The court rejected Germany’s proposal and the proposal and the claim of Denmark and The Netherlands that Art. 6(2)
represented customary international law at the time of adoption.
HELD: The court stated that opinio juris and extensive and virtually uniform participation of states in the practice (even if
over a relatively short period) could make a Convention binding even on states which are not parties to it so long as it
evidences a recognition of legal obligation. The provision would have to be of such a norm-creating character as could be
regarded as forming the basis of a general rule.
In this case the court found that the provision (Art.6) was neither sufficiently definite nor obligatory to meet this
requirement and it was not worded in such a way as to have a norm-creating character. It also found no evidence that the
states involved felt any legal obligation to use apply the equidistance principle.
The court therefore held that the parties were not obligated to use the equidistance principle or any other method of
delimitation for that matter. The court identified the principles and rules of international law to be applied as follows:
1. delimitation was to be by agreement in accordance with equitable principles with all relevant circumstances taken
2. any overlapping areas left by the above application should be divided either equally of in agreed proportions
unless a regime of shared jurisdiction can be agreed upon.
The court also held that the following factors were to be taken into account:
1. the general configuration of the coasts
2. the ascertainable physical and geographical structure and the natural resources of the area
3. the element of a reasonable degree of proportionality which should result from equitable delimitation.
DISSENTING OPINION: the practice of states adopting or following the rules and principles of the Convention or
acquiescing to their application is sufficient to satisfy the criteria for a general rule of international law. A rule need not be
universally accepted to be binding. It is enough if the majority of the interested states adopt it in their practice. Opinio
juris is a difficult doctrine to apply because it will hardly be possible for a state to prove the motives of another state. This
considered, the Convention should be regarded as having attained the status of generally accepted rules of international
law. Had Germany persistently objected to the Convention, it would not now be applicable to her but Germany had signed
the Convention and relied on it in the past.
See Worksheet for notes and extracts.
Look at The M/V ‘Saiga’ Case in Supplemental handout.
9. [Re: 1982 UNCLOS Art. 90- 92, 94 - 110]
The Deep Seabed
1970 UNGA RESOLUTION 2749: DECLARATION OF PRINCIPLES GOVERNING THE SEABED AND THE
OCEAN FLOOR, AND THE SUBSOIL THEREOF, BEYOND THE LIMITS OF NATIONAL JURISDICTION.
The General Assembly affirmed that there was an area seabed etc. beyond national jurisdiction, the limits of which are yet
to be determined and the exploration of which was not governed by the existing legal regime of the high seas. The UNGA
then declared the area to be the ‘common heritage of mankind’ and therefore not subject to any means of appropriation by
or the sovereignty of any state. No entity was to acquire rights over the area incompatible with the principles of the
declaration and the regime to be established to provide for the development of the area, manage its resources and govern
all activities within it regarding exploration and exploitation of its resources. Such activities must be for the benefit of
mankind as a whole with special consideration for developing countries. The regime should ensure the equitable
distribution of the benefits derived from the area. The area shall be open to use exclusively for peaceful purposes by all
states coastal or not. In the interest of peace, security, cooperation and mutual understanding, states shall act in accordance
with the principles of international law while in the area.
[Re: 1982 UNCLOS Preamble and Arts.133-37, 140-41, 150, 153]
1. Part XI (Arts.133-191) of the 1982 Convention established the regime referred to in the 1970 UNGA Resolution.
Although it was ratified by enough developing states to come into force in 1994, it was not accepted by many
developed states and this led to problems of funding which threatened the success of the 1982 Convention. As a
result a supplemental or auxiliary agreement was signed in 1994 which modified Part XI to meet the objections of
the developed states and thereby facilitate their acceptance of the Convention. The 1994 Agreement came into
force in 1996 and Part XI is now being implemented in accordance with it.
2. The Convention adopts the idea that the area is ‘the common heritage of mankind’ and therefore not subject to the
sovereignty of any state. The Convention adopted a system of ‘parallel access’ as a comprise between the demand
of the developed states for an international body to conduct a system of exploitation of the area and that of the
developing states for exploitation by national undertakings subject to registration or license. Art.153 gives control
of activities within the area to an Authority empowered to either exploit the resources itself or contract with
national undertaking. The 1994 Agreement made changes relating to the management of finances for the
3. The Authority is provided for in Arts.156-168 of the Convention. It was established in 1994 and sits in Jamaica. It
is supplemented by the Enterprise which is responsible for conducting the actual deep seabed activities of the
Authority. The Authority is comprised of an Assembly of all the states which vote on policy and a Council of 36
elected states which acts as the executive body deciding questions of substance. The 1994 Agreement has the
effect of increasing the powers of the Council (which is highly influenced by developed states) at the expense of
4. The Convention made no provision for the protection of the pre-Convention investments of states in exploration
but a Resolution has subsequently been passed which gives such states priority in the allocation of contracts.
5. The reciprocal states regime: The US, the UK and other developed states rejected the 1982 Convention and
instead enacted legislation giving themselves the authority to issue licenses for the exploitation of deep sea-bed
The I’m Alone Case (Canada v US)
In 1929, the I’m Alone, a British ship registered in Canada was ordered to heave to by US coastguards on suspicion of
smuggling liquor which was prohibited in the US. The US claims the order was given when the ship was 10 miles from
the Louisiana coast. The ship fled and but the US coastguards caught up with it 200 miles from the US coast. After the
ship refused a second order to heave to the US coastguards fired on it and sunk it resulting in death and loss of cargo. The
US justified its actions under a 1924 British-American Convention which authorized the boarding of British vessels
suspected of smuggling liquor up to an hour’s traveling distance outside US territorial waters.
The Commission had to decide whether it could enquire into the ownership of the I’m Alone and if so, the effect of
indirect ownership and control by US citizens on the claim. The Commission decided that it could enquire into the ships
ownership and control but decided to reserve its effect on the claim for later consideration. The second issue related to the
right of hot pursuit and would depend on the truth of US statements about the distance and speed of the ship. The
Commission could not decide whether the Convention gave the US the right of pursuit where the offending vessel is
within an hour’s sailing distance of the shore at the start of pursuit but beyond that at the end. The Commission decided
that, in light of US withdrawals, it need not decide whether the US has the right of hot pursuit where the offending vessel
was within the 12 miles set by local laws at the start of pursuit but on high seas at the end.
The Commission also had to decide whether in the circumstances the US had been justified in pursuing and sinking the
ship. The Commission decided that the Convention might allow the use of reasonable force to board a suspected vessel
and so the US would have been blameless had the sinking been incidental to this. However, the fact that the sinking was
intentional made it an unlawful act. It added that the sinking could not be justified by international law either. It found that
actual control and ownership of the ship was indirectly mainly in the hands of US citizens so no compensation needed to
be paid to them. The Commission recommended that the US apologize to and compensate the Canadian government for
the benefit of the captain and crew who had not been parties to the smuggling.
According to McNair, Britain has repeatedly affirmed the right to hot (i.e. immediate) pursuit even where the offending
ship has reached the high seas. According to an 1891 Opinion seizure beyond territorial waters is justified as long as the
pursuit was undertaken immediately on commission of the offence. The question of immediacy was a question of fact.
In 1852 it was advised that the degree of force did not include resort to arms and this could only be justified where
resistance was threatened or offered or where escape was imminent. It was also suggested that it should be such as to
disable the vessel without risking life.
States generally recognize the right to continue on the high seas a pursuit begun within territorial waters but disagree on
whether the entry of the vessel into another state’s territorial waters suspends or ends the pursuit.
R v Mills
The Poseidon, a Vincentian diving vessel registered in the Caribbean, transferred cannabis which it had transported from
Morocco to the Delvan, a British fishing vessel which had sailed from Ireland. The transfer took place on the high seas
100 miles west of the UK. The plan was for the British ship to take the cannabis to the UK. A British naval vessel
observed the transfer and followed the Poseidon further out into the Atlantic. A British customs vessel followed the
Delvan until it landed in Britain and arrested those involved. The order was given to the naval vessel to arrest the
Poseidon. Attempts to communicate with the Poseidon failed and the British boarded it and arrested the crew none of
whom were British nationals. This arrest was made in international waters (the Poseidon having never come into British
territorial waters). The defendants (D) applied for a stay of proceedings on the grounds of abuse of process stemming
from the fact that they were arrested on the high seas in breach of international law. The Crown argues that the court had
no jurisdiction to hear the application because the Convention upon which D relied was a treaty and not a part of British
law. The court after deciding that it had jurisdiction because the treaty only declared existing principles of customary
international law which had been incorporated into English common law, considered whether the arrest had been lawful
under the international law doctrine of hot pursuit.
The court held that the doctrine incorporated the notion of constructive presence for ships outside a state’s territorial
waters which is working as a team with a ship within the state’s jurisdiction. In response to D’s argument that pursuit
should have begun immediately upon the Delvan’s entry into British territorial waters, the court said the Convention was
silent on the matter of time of entry.
The court quoted the statement of one international jurist that the right of hot pursuit was to be exercised in exceptional
circumstances and that while its exercise could only be justified by the need for urgent/immediate action, immediacy was
not to be interpreted strictly. Since it is now possible to identify and accurately track the position of a vessel without
maintaining contact with it, the right to hot pursuit will not be lost merely because of delay especially in a case such as
this where because the offence of conspiracy is a continuing offence the right may not have arisen until its completion.
In response to D’s argument that the ship had been signaled by radio and this did not comply with the requirements of Art.
23(3), the court said although the 1958 Convention did not regard such signals as lawful, modern technology had
advanced to the point where signal by radio would suffice if it were clear that the signal had been received and understood
by the offending ship.
The court therefore held that the Poseidon had been properly arrested in international waters under the Convention and in
accordance with the international law of the sea and as such D’s application would not be allowed.
Settlement of Disputes
[Re: 1982 UNCLOS Arts.286-88, 291, 293, 295-99]