The Law of the Sea

The seas have historically performed two important functions: firstly, as a medium of communication, and secondly, as a reservoir of resources, both living and non-living. Both of these functions stimulated the development of legal rules.

The seas were at one time thought capable of subjection to national sovereignties. The Portuguese, in particular, in the seventeenth century proclaimed huge tracts of the high seas as part of the their territorial domain, but these claims stimulated a response by Grotius who elaborated the doctrine of the open seas, whereby the oceans were to be accessible to all nations but incapable of appropriation. This view prevailed, partly because it accorded with the interest of the North European states, which demanded freedom of the seas for the purposes of exploration and expanding commercial intercourse with the East.

The freedom of the high seas rapidly became a basic principle of international law, but not all the seas were so characterized. Much of the history of the law of the sea has centered on the extent of the territorial sea or the precise location of the dividing line between it and the high seas and other recognized zones.

But the present century has witnessed continual pressure by states to enlarge the maritime belt and thus subject more of the oceans to their exclusive jurisdiction.

Beyond the territorial sea, other jurisdictional zones have been in process of development. Coastal states may now exercise particular jurisdictional functions in the contiguous zone, and the trend of international law today is moving rapidly in favour of even larger zones in which the coastal state may enjoy certain to the exclusion of other nations, such as fishery zones, continental shelves and, more recently, exclusive economic zones. However, in each case whether a state is entitled to a territorial sea, continental shelf or exclusive economic zone is a question to be decided by the law of the sea.

This gradual shift in the law of the sea towards the enlargement of the territorial sea (the accepted limit is now a width of 12 miles in contrast to 3 miles some thirty years ago), coupled with the continual assertion of jurisdiction rights over portions of what were regarded as high seas, reflects a basic change in emphasis in the attitude of states to the sea.

The law relating to the seas, therefore, has been in a state of flux for several decades as the conflicting principles have manifested themselves.

A series of conferences have been held, which led to the four 1958 Conventions on the law of the Sea and then to the 1982 Convention on the Law of the Sea. The 1958 Convention on the High Seas was stated in its preamble to be ‘generally declaratory of established principles of international law’, while the other three 1958 instruments can be generally accepted as containing both reiterations of existing rules and new rules.

The pressures leading to the Law of the Sea Conference, which lasted between 1974 and 1982 and involved a very wide range of states and international organizations, included a variety of economic, political and strategic factors. Many Third World states wished to develop the exclusive economic zone idea, by which coastal states would have extensive rights over a 200-mile zone beyond the territorial sea, and were keen to establish international control over the deep seabed, so as to prevent the technologically advanced states from being able to extract minerals from this vital and vast source freely and without political constraint.

The 1982 Convention contains 320 articles and 9 Annexes. It was adopted by 130 votes to 4, with 17 abstentions. The Convention entered into force on 16 November 1994, twelve months after the required 60 ratifications.

A merchant ship in foreign internal waters is automatically subject to the local jurisdiction 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 ship to regulate. Although some writers have pointed to theoretical differences between the common law and French approaches, in practice the same fundamental proposition applies.

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