Brief History of the Law of the Sea *
Por Alexei Zinchenko**
The modern law of the sea dates to the beginning
of the modern international law. Grotius, the Dutch lawyer who is
considered to be the father of international law, is regarded as
the father of the law of the sea as well. His seminal work on the
subject, the Free Seas, or Mare Liberum, published in 1609,
established some of the major concepts in this field. He
articulated the principle of the freedom of the seas, that the
sea should be free and open to use by all countries.
The oceans had long been subject to the "freedom-of-the-seas" doctrine - a principle put forth in the 17th century, essentially limiting national rights and jurisdiction over the oceans to a narrow belt of sea surrounding a nation's coastline. The remainder of the seas was proclaimed to be free to all and belonging to none. While this situation prevailed into the twentieth century, by the middle of it there was an impetus to extend national claims over offshore.
The 1958 United Nations Conference on the Law of the Sea attempted to formulate an agreed legal definition of the continental shelf, and adopted the following in article 1 of the Convention on the Continental Shelf:
"For the purpose of these articles, the term 'continental shelf' is used as referring ... to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; ..."
This definition contained the criteria of adjacency to the coast and of "exploitability", which were soon questioned in view of their imprecise and open-ended nature.
In the late 1960s, oil exploration was moving further and further from land, and deeper into the bedrock of continental margins.
The oceans were being exploited as never before. Activities unknown barely two decades earlier were in full swing around the world. Tin had been mined in the shallow waters off Thailand and Indonesia. South Africa was about to tap the Namibian coast for diamonds. Potato-shaped nodules, found almost a century earlier and lying on the seabed some five kilometres below were attracting increased interest because of their metal content.
Meanwhile, large fishing vessels were now capable of staying away from port for months at a time, permitting them to fish anywhere, and at an unprecedented level, beginning to deplete important fish stocks. Coastal States were setting limits and distant water fishing States contesting them.
In the fall of 1967 technological advances, conflicting uses, and superpower rivalry threatened the oceans and even the seabed. The dangers were numerous: nuclear submarines charting deep waters never before explored; designs for antiballistic missile systems to be placed on the seabed; super tankers ferrying oil from the Middle East to European and other ports, passing through congested straits and leaving behind a trail of oil spills; and rising tensions between nations over conflicting claims to ocean space and resources.
On 1 November 1967, Malta's Ambassador to the United Nations, Arvid Pardo, asked the nations of the world to consider the impending conflict that could devastate the oceans, the lifeline of man's very survival. In a speech to the United Nations General Assembly, he spoke of the superpower rivalry that was spreading to the oceans, of the pollution that was poisoning the seas, of the conflicting legal claims and their implications for a stable order, and of the rich seabed resources.
Pardo ended with a call for "an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction". "It is the only alternative by which we can hope to avoid the escalating tension that will be inevitable if the present situation is allowed to continue," he said.
Pardo's speech set in motion a process that spanned 15 years and saw the creation of the United Nations Seabed Committee, the signing of a treaty banning nuclear weapons on the seabed, the adoption of the declaration by the General Assembly that all resources of the seabed beyond the limits of national jurisdiction are the common heritage of mankind and the convening of the Stockholm Conference on the Human Environment. What started as an exercise to regulate the seabed turned into a global diplomatic effort culminating in the convening of the Third United Nations Conference on the Law of the Sea to regulate and write rules for all ocean areas, all uses of the seas and all of its resources - a constitution for the oceans.
Long before it was adopted and the Third United Nations Conference on the Law of the Sea was concluded, the direction of the development of the new law of the sea was already apparent. From the early seventies States in their national claims began to act in anticipation of the outcome of the Conference. This trend continued in the 1980's. The 1990's witnessed the consolidation of the new order in the oceans.
The Convention was adopted as a "package deal" to be accepted as a whole in all its parts without reservation on any aspect. The influence that the convention has already exerted on State practice is immense. There is in general a convergence towards the Convention regime in all its aspects, even among many States which have not yet ratified it. The Convention provides a predictable framework for all the uses of the oceans and its resources and provides for universally recognized limits for zones of national jurisdiction.
disclaimer: The views expressed
in this statement are those of the author and do not necessarily
reflect the views of the United Nations or the Commission on the
Limits of the Continental Shelf.
The presenter would also like to note that the research conducted for the purposes of this presentation was based primarily on UN documents, reports, studies, information notes, speeches and other sources drafted by staff members, past and present, of the United Nations Office for Ocean Affairs and the Law of the Sea, now known as the Division for Ocean Affairs and the Law of the Sea of the United Nations Office of Legal Affairs. Among them special acknowledgement must go to Ambassador Satya N. Nandan, formerly UN Under-Secretary General in charge of the Office for Ocean Affairs and the Law of the Sea, currently Secretary-General of the International Seabed Authority.
Nota Bene: El copyright de este artículo pertenece al autor.
* El artículo es parte de la presentación titulada "The Global Vision of the Law of the Sea System, and its Relation with the Commission on the Limits of the Continental Shelf", hecha en el Seminario "Plataforma Continental" realizado en Buenos Aires del 13 al 17 de noviembre de 2000.
** El autor es el Secretario de la Comisión de Límites de la Plataforma Continental de la División para Asuntos Oceánicos y Derecho del Mar de la Oficina de Asuntos Legales de Naciones Unidas.
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