Abstract
The law of the sea has been governed for centuries by rules of international customary law. The first attempt to codify the law of the sea as a whole was made in 1958 when for this purpose a conference was held under the auspices of the United Nations in Geneva. As a result of this conference four conventions were signed which in the meantime have entered into force. Although these conventions made a substantial contribution to the progressive development of international law, the Conference itself admitted that a number of controversial issues remained unsettled. It appears from the resolutions adopted at the 1958 Conference that the following topics were deemed to need further consideration: nuclear tests on the high seas; pollution of the high seas by radio-active materials; conservation of the living resources of the sea; the coastal State preferential rights relating to fisheries; the definition of the juridical concept of historic waters and the width of the territorial sea. The Conference also adopted a resolution in which the United Nations General Assembly was requested to study the advisability of convening a second international conference for further consideration of the questions left unsettled.
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References
J. P. A. François, La deuxième conférence sur le droit de la mer in Netherlands International Law Review vol. VII, 196o, p. 249.
I.C. J. Reports 1969, p. 40.
Article 34 of the Vienna Convention on the Law of Treaties reads: “A treaty does not create either obligations or rights for a third State without its consent”, A/CONF 39/27, International Legal Materials, vol. VIII, 1969, p. 679; see inter alia R. D. Kearney and R. E. Donald, The treaty on treaties,in American Journal of International Law,vol. 64, 197o, p. 521.
UNGA RES/275o C (XXV) adopted by a vote of rob to 7 with 6 abstentions.
UNGA RES/275o C (XXV) reads in part: “Noting that the political and economic realities, scientific development and rapid technological advances of the last decade have accentuated the need for early and progressive development of the law of the sea, in a framework of close international co-operationchrw(133)”.
See inter alia P. M. Fye, A. E. Maxwell, K. O. Emery and B. H. Ketchum, Ocean science and marine resources, in Uses of the seas edited by E.A. Gullion, Englewood Cliffs, N.Y. 1968, pp. 32 et seq. and C. E. Schatz, Observations on sampling and occurrence of manganese nodules, OTC Paper 8th February 1971.
Report of the ILC covering the work of its eighth session 23 April-4 July 1956, GAOR: r rth session, supplement No. 9 (A/3159), New York 1956, p. 4r.
See inter alia: Reports of the United Nations Sea-bed Committee, GAOR: twenty-third session, Doc. A/723o, New York 1968; GAOR: twenty-fourth session, supplement No. 22 (A/7622), New York x969; GAOR: twenty-fifth session, supplement No. 21 (A/8o21), New York 197o; GAOR: twenty-sixth session, supplement No. 21 (A/8421), New York 197r, and GAOR: twenty-seventh session, supplement No. 21 (A/8721), New York 1972.
See the London Convention for the prevention of pollution of the sea by oil of 1954 as amended in 1962 and further amended in 1969 and 1971; the Brussels Convention relating to intervention in the high seas in case of oil pollution casualties of 1969; the Brussels Convention on civil liability for oil pollution damage of 1969; the Brussels Convention on the establishment of an international compensation fund for oil pollution damage of 1971; Tanker owners voluntary agreement concerning liability for oil pollution (TOVALOP) of 1969, International Legal Materials, vol. VIII, 1969, p. 497 and Contract regarding an interim supplement to tanker liability for oil pollution (CRISTAL) of 1971, International Legal Materials, vol. X, 1971, p. 137.
IMCO Ship’s routeing and traffic separation schemes, London 1971.
W. J. Coffey, Commercial interests to be negotiated, in Proceedings of the sixth annual conference of the Law of the Sea Institute, University of Rhode Island, June 1971, Kingston 1972, p. 138.
The Brussels Convention relating to civil liability in the field of maritime carriage of nuclear materials of 1971, International Legal Materials, vol. XI, 1972, p. 277.
See also the preamble of the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas.
Fye cum suis, op. cit., pp. 59 et seq.
Man’s impact on the global environment. Assessment and recommendations for action. Report of the Study of Critical Environmental Problems (SCEP) sponsored by the Massachusetts Institute of Technology, Cambridge Mass. 197o; and M. Nicholson, The environmental revolution, London 197o.
IMCO/FAO/UNESCO/WMO/IAEA Joint Group of experts on the scientific aspects of marine pollution (GESAMP), Report of the second session held in Paris from 2–6 March 197o, GESAMP II/ri, loth June 197o, Annex V.
See note 9 and the London Convention on the dumping of wastes at sea of loth November 1972.
As regards the necessity for the establishment of international standards relating to pollution of the sea resulting from mining operations at sea, see Report of the Deep-Sea Mining Committee of the International Law Association which was submitted at the fifty-fifth Conference held in New York in 1972, pp. 43 et seq.
The question of whether a fishing stock is fully utilized or overexploited is to be decided on the criterion of the maximum sustainable yield or the maximum economic yield; see paragraph 4.5. of this study.
UNGA RES/2749 (XXV).
The term “area” referred to in this paragraph is defined in paragraph z of the Declaration as “the sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction”.
Report of the Committee on the peaceful uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction, GAOR: twenty-seventh session, supplement No. 21 (A/8721), New York 1972, pp. 4–8.
At the 196o Conference on the Law of the Sea, the width of the territorial sea and the possible establishment of an exclusive fishing zone were dealt with simultaneously.
Our nation and the sea, Report of the Commission on Marine Science,Engineering and Resources, Washington 1969, p. 146.
L. J. Bouchez, The freedom of the high seas: a re-appraisal, a paper delivered at the Den Helder Conference on the future law of the sea, which was organized under the auspices of the Royal Netherlands Navy Institute in co-operation with the Institute of International Law of Utrecht University, will be published in 1973.
W. Wooster, Pollution - scientific research, in Proceedings of the sixth annual conference of the Law of the Sea Institute, University of Rhode Island, June 1971,Kingston 2972, pp. 13o-134, L. J. Bouchez, De verontreiniging van de zee en hel volkenrecht, in Mededelingen van de Nederlandse Vereniging voor Internationaat Recht No. 65, April 2972, p. 62.
FA0 Circular No.127, Rome August 1971, reproduced in International Legal Materials, vol. X, 1971, p. 1255.; M. J. Kehden, Die Inanspruchnahme von Meereszonen und Meeresbodenzonen durch Küstenstaaten, Hamburg 1971; and S. Oda, The international law of ocean development. Basic documents, Leiden 1972, pp. 368 et seq.
Journal of Maritime Law and Commerce, vol. 2, 197o-1971, p. 451.
This proposal was made by Afghanistan, Austria, Belgium, Hungary, Nepal, The Netherlands and Singapore, See U.N. Doc. A/AC. 238/55.
See Article 47 of this draft, U.N. Doc. A/AC. 138/53.
This Declaration was signed by Colombia, Costa Rica, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Dominican Republic, and Trinidad and Tobago, see International Legal Materials, vol. XI, 1972, p. 892.
The concept of the proposed economic zone will be discussed in more detail below under subparagraph 5.3.1.
lnternational Legal Materials, vol. IX, 197o, p. 1o81.
lnternational Legal Materials, vol. X, 1971, p. 208.
For a discussion in more detail concerning the jurisdiction of the coastal State see L. J. Bouchez, Some basic problems of coastal State jurisdiction and the future conference on the law of the sea, to be published in Annals of International Studies, Geneva 2973.
London Convention on Prevention of Marine Pollution by Dumping of Wastes and other Matters, article IV and Annex I, International Legal Materials, vol. XI, 1972, p. 1291.
Shipbuilding and Transport Review International, October 1972, No. 7 p. 13.
Brussels International Convention relating to Intervention on the High Seas in cases of Oil Pollution Casualties of 29th November 1969, International Legal Materials, vol. IX, 5970, p. 25; this convention has not entered into force as yet.
lnternational Legal Materials, vol. IX, 1970, p. 543; see also J. Y. Morin, Le progrès technique, la pollution et l’évolution récente du droit de la mer au Canada, particulièrement à l’égard de l’Arctique, in l’Annuaire Canadien de Droit International, vol. VIII, 1970, p. 158; D. Wilkes, International administrative due process and control of pollution. The Canadian Arctic Waters example, in Journal of Maritime Law and Commerce, vol. 2, 1970–1971, p. 499; L. Henkin, Arctic antipollution: does Canada make—or break—international law, in American Journal of International Law, vol. 65, 1971, p. 131; J. A. Beesley, Rights and responsibilities of arctic coastal States: the Canadian view, in Journal of Maritime Law and Commerce, vol. 3, 1971–1972, p. 1; E. Gold, Pollution of the sea and international law, in Journal of Maritime Law and Commerce, vol. 3, 1971–1972, p. 13.
lnternational Legal Materials, vol. IX, 1970, p. 598.
lnternational Legal Materials, vol. IX, 1970, p. 1 and vol. XII, 1972, p. 267.
See Article 5, para. 3 (a) of the 1971 International Convention on the Establishment of an International Fund for Compensation of Oil Pollution Damage.
International Legal Materials, vol. IX, 197o, p. 45.
lnternational Legal Materials, vol. XI, 1972, p. 284.
International Legal Materials, vol. XI, 1972, p. 277.
MC0 Ships’ routeing and traffic separation schemes, London 1971, p. io.
lbidem, p. 4 and pp. 12 et seq.
I.C. J. Reports 1949, p. 4, at p. 28.
See the statement made by Spain to the United Nations Sea-bed Committee on 16th March 1971, U.N. Doc. A/AC/SR. 48, p. 13.
U.N. Doc. A/AC. 138/SC. II/L.4 and Corr. 4, and U.N. Doc. A/AC. 138/SC. II/L.7.
U.N. Doc. A/AC. 138/SR. 54, p. 1z.
IMC0 Ships’ routeing and traffic separation schemes, London 1971, p. io: “When establishing areas to be avoided by certain ships the necessity for creating such areas should be well established and the reasons stated. In general, these areas should be established in places where inadequate survey or insufficient provision of aids to navigation may lead to danger of stranding or where local knowledge is considered essential for safe passage. Another reason for the establishment of such areas is the possibility of unacceptable damage to wildlife, which may result from a casualty”.
See Convention Respecting Free Navigation of the Suez Maritime Canal concluded at Constantinople on 29th October 1888; J. A. Obieta, The international status of the Suez Canal, 2nd ed. The Hague 197o, pp. 66 et seq. and pp. 146–149.
P. Adam, Notes on the management of North Sea Fisheries, in Proceedings of the fifth annual conference of the Law of the Sea Institute, the University of Rhode Island, June 1970, Kingston 1971, p. 257.
J.E. Carroz, Living resources management: regional fishery bodies, in Pacem in Maribus I, vol. 2 Legal foundations of the ocean regime, Malta 1971, pp. 148 et seq.
S. Oda, International law of the resources of the sea, in Recueil des Cours 1969, vol. II, p. 405.
This issue will be discussed in more detail in the next paragraph.
F. I. Christy, Fisheries: common property, open access and the common heritage, in Pacem in Maribus I, vol. 2 Legal foundations on the ocean regime, Malta 1971, pp. 77–112.
Report of the ILC, GAOR: eleventh session, supplement No. 9 (A/3159), New York 1956, p. 24.
L. J. Bouchez, The legal regime of scientific research on the sea-bed, in Proceedings of the symposium on the international regime of the sea-bed sponsored by the Academia Nazionale dei Lincei and organized by the Istituto Affari Internazionale, Rome 197o, pp. 591 et seq.; and W. Wooster: op. cit., pp. 530–534.
See subparagraph 4.1 supra.
North Sea Continental Shelf Cases of loth February 1969, I.C.J. Reports 1969, P. 40.
I.C. J. Reports 1969, p. 31.
K. O. Emery, Geological aspects of sea floor sovereignty, in The law of the sea: offshore boundaries and zones, edited by L. M. Alexander, Ohio 1967, p. 149.
National Petroleum Council, Petroleum resources under the ocean floor, Washington 1969, p. 66.
See also: R. Y. Jennings, The limits of the continental shelf jurisdiction: some possible implications of the North Sea Case judgment, in International and Comparative Law Quarterly, vol. 18, 1969, p. 828; National Petroleum Council, op. cit., p. I1; L. J. Bouchez, The outer boundary of the coastal State’s jurisdiction over the sea-bed and subsoil, in Pacem in Maribus I, vol. II Legal foundations of the ocean regime, Malta 1971, p. 5o.
See subparagraph 4.1 supra.
U.N. Doc. A/CONF. 13/L. 56.
See for example the Agreement on Fishery Problems in the Western Areas of the Middle Atlantic Ocean between the United States and the Soviet Union of 25th November 1967, in International Legal Materials, vol. VII, 1968, P. 144.
See Article i of the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas and Article 2 of the Geneva High Seas Convention.
UNTS, vol. 2o5, p. 80.
G. H. J. van der Molen, The principle of abstention and the freedom of the high seas, in Varia Jul* Gentium, liber amicorum presented to Jean Pierre Adrien François, Leyden 195g, pp. 207–208; S. Yamamoto, The abstention principle and its relation to the evolving international law of the seas, in Washington Law Review, vol. 43 1967, p. 45.
J. A. Crutchfield, National quotas for the North Atlantic fisheries: an exercise in second best, in Proceedings of the third Annual Conference of the Law of the Sea Institute, The University of Rhode Island, June 1968, Kingston 1969, p. 263.
A. W. Koers, International regulation of marine fisheries. A study of regional fisheries organizations, London 1973, pp. 63–69 and pp. 204–211, J. F. Carroz, Living resource management: regional fisheries bodies, in Pacem in Marabus I,vol. 2, Legal foundations of the ocean regime, Malta 1971, p. 148.
S. Oda, The international law of the ocean development. Basic documents, Leiden 1972, pp. 73–341; P. Kausch, Der Meerbergbau im Völkerrecht, Essen 1970, pp. 114–121.
U.N. Doc. A/AC. 138/25; for governmental proposals made at the 1958 Geneva Conference, see M. M. Whiteman, Conference on the law of the sea: Convention on the continental shelf, in American Journal of International Law, vol. 52, 1958, p. 634.
U.N. Doc. A/AC. 138/SC. II/L. 11.
U.N. Doc. A/AC. 138/SC. II/L. 8. and U.N. Doc. A/AC. 138/SC. II/L. 9.
U.N. Doc. A/AC. 138/SC. II/L. 6. 901J.N. Doc. A/AC. 138/SC. II/L. 1z.
J.N. Doc. A/AC. 138/SC. II/L. 1z.
U.N. Legislative series. Laws and regulations on the regime of the territorial sea’ New York 1957, p. 723; S. Guttierez Olivos, Mar territorial y derecho moderno, Santiago 1955, p. 3o; B. B. L. Auguste, The continental shelf, the practice and policy of Latin American States with special reference to Chile, Peru and Ecuador, Paris-Geneva 1960.
lnternational Legal Materials, Vol. IX, 197o, p. 1081, vol. X, 1971, p. 208 and U.N. Doc. A/AC. 138/80.
F. V. Garcia Amador, Latin America and the law of the sea, in Proceedings of the sixth annual conference of the Law of the Sea Institute, University of Rhode Island, June 21–24,1971, Kingston 1972, p. 104.
U.N. Doc. A/AC. 138/55.
U.N. Doc. A/AC. 138/79.
Ú.N. Doc. A/AC. 138/SC. II/L. 1o.
See Articles 61 through 65 of the Maltese Draft.
Article VI of the Draft submitted by Kenya reads in part: “The coastal State shall permit the exploitation of the living resources within its zone to the neighbouring developing land-locked, near land-locked and countries with a small shelf provided the enterprises of those States desiring to exploit these esources are effectively controlled by their national capital and personnel”.
UNGA RES/274g (XXV).
Report of the Committee on the peaceful uses of the sea-bed and ocean floor beyond the limits of national jurisdiction, GAOR: twenty-seventh session, supplement No. 21 (A/8721), New York 1972, pp. 27–29.
UNGA RES/3o29 B (XXVII).
UNGA RES/3029 C (XXVII).
P. M. Fye, A. E. Maxwell, K. O. Emery and B. H. Ketchum, op. cit., p. 18.
This alternative is reflected inter alia in the claims of a number of Latin American States to a zoo-mile limit and in the concept of the patrimonial sea embodied in the Santo Domingo Declaration, see subparagraphs 4.1 and 5.3.1.
This situation arises not only in case of coastal States with a relatively short coastline, but may also affect States having a relatively long coast such as Chile, Peru and Ecuador; see also National Petroleum Council, Petroleum resources of the Ocean Floor, Washington 1969, p. i r.
See inter alia the working paper submitted by Australia and New Zealand on rrth August 1972, U.N. Doc. A/AC. 138/25.
See note 88.
The zoo-metre isobath is suggested, for it is generally recognized among States that the rights over the continental shelf extend at least to this limit. The 50-mile limit is proposed as some kind of compensation for those States where the coast drops to great depth almost immediately and because it corresponds to the average width of the geological shelf. See Our Nation and the Sea, Report of the Commission on Marine Science, Engineering and Resources, Washington /969, pp. 145–146.
The principle of proportional reduction means: the total part of the international area within which a State is entitled to exercise exclusive rights for the purpose of exploring and exploiting natural resources according to the international regime to be established should be reduced in proportion to the parts of intermediate zone acquired. See L. J. Bouchez, The outer boundary of national jurisdiction over the sea-bed and subsoil, in Pacem in Maribus I, vol. II, Legal foundations of the ocean regime, Malta 1971, pp. 62–64.
The ioo-mile limit is proposed, since it corresponds approximately to the average width of the continental terrace; see Our nation and the sea, p. 151.
D. H. N. Johnson, European fishery limits, in Developments on the law of the sea 1958–1964, London 1965, p. 48.
Report of the Deep-sea Mining Committee of the International Law Association submitted to the 1972 New York Conference, pp. 21–23; A. W. Koers, op. cit., pp. 301–304.
GAOR: twenty-seventh session supplement No. 21 (A/8721), New York,1972, p.28.
UNGA RES/2467 (XXIII) D of 21st December 1968 and UNGA RES/2749 (XXV) of 17th December 197o.
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Bouchez, L.J. (1973). Some Reflections on the Present and Future Law of the Sea. In: Bos, M. (eds) The Present State of International Law and Other Essays. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-4497-3_10
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