The Law of the Sea

Entry into force, 16 November 1994. The delay was Part XI, the deep seabed regime, which the industrialised States would not accept. The Agreement relating to the Implementation of Part XI, adopted on 28 July 1994, rewrote it in substance, and that story is [The Area, and the Parallel System of Mining].

The zones, in order

This table is the map of the next nine chapters, and it is worth memorising as a whole before learning any part.

Two points about the table. The zones are measured from the same baseline, which is why [Baselines and the Territorial Sea] comes first and why the Fisheries case matters so much. And the continental shelf and the exclusive economic zone overlap out to 200 miles but are not the same thing: the shelf is about the seabed and subsoil and exists automatically, and the zone is about the water column as well and must be claimed.

Internal waters

Article 8 provides that, except as provided in Part IV for archipelagic States, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.

Sovereignty over internal waters is as complete as over land, and there is no right of innocent passage. A foreign ship enters a port by permission, and the coastal State's law applies to it.

One exception, in article 8(2): where a straight baseline drawn under article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage exists in those waters. That provision exists because straight baselines can swallow large areas of what used to be territorial sea or high seas, and it is the Convention's answer to the concern the United Kingdom raised in the Fisheries case.

The general provisions

Article 300, good faith and abuse of rights: States Parties shall fulfil in good faith the obligations assumed under the Convention and shall exercise the rights, jurisdiction and freedoms recognised in it in a manner which would not constitute an abuse of right.

Article 301 requires States, in exercising their rights and performing their duties, to refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter.

Articles 302 to 304 deal with disclosure of information, archaeological objects, and responsibility and liability for damage.

The final provisions, articles 305 to 320, cover signature, ratification, accession, entry into force on 16 November 1994, the bar on reservations in article 309, the declarations permitted by article 310, the relation to other conventions, amendment, denunciation and the authentic texts. Article 311 deals with the relation to the 1958 Geneva Conventions, which the 1982 Convention prevails over as between parties to both.

India's own Act

An Indian court applies the Indian statute, not the Convention, for the reasons in [International Law in Indian Courts]. The statute is the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976, Act 80 of 28 May 1976, and it predates the Convention by six years while matching it closely.

Section 3. The sovereignty of India extends and has always extended to the territorial waters of India, and the limit of the territorial waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline.

Section 4 deals with the passage of foreign ships through the territorial waters.

Section 5. The contiguous zone is an area beyond and adjacent to the territorial waters, the limit of which is twenty-four nautical miles from the nearest point of the baseline.

Section 6 defines the continental shelf, comprising the seabed and subsoil of the submarine areas beyond the territorial waters.

Section 7. The exclusive economic zone is an area beyond and adjacent to the territorial waters, the limit of which is two hundred nautical miles from the baseline.

Section 8 empowers the Central Government to specify the limits of historic waters.

Section 9 provides for the determination of maritime boundaries between India and any State whose coast is opposite or adjacent to India's.

Section 11 makes contravention of the Act or of any notification under it an offence.

Notice the drafting of section 3(1): sovereignty "extends and has always extended". That is a statement about continuity rather than a claim newly made, and it is the sort of phrase that repays attention in an examination.

A worked example

A trawler flying the flag of State AA is found fishing forty nautical miles off the Indian coast. It is boarded, and on the way in the master is found to have smuggled goods aboard while at anchor eight miles out. State AA protests.

Where was the fishing? Forty miles out is beyond the twelve-mile territorial sea and beyond the twenty-four-mile contiguous zone, and inside the two-hundred-mile exclusive economic zone under section 7 of the Act and article 57 of the Convention.

May India regulate fishing there? Yes. The exclusive economic zone gives the coastal State sovereign rights for the purpose of exploring, exploiting, conserving and managing the natural resources, which is [The Exclusive Economic Zone]. It is not sovereignty, so State AA's ship may navigate freely; it may not take India's fish without authorisation.

The smuggling at eight miles. That is inside the territorial sea, where India has sovereignty under section 3 and article 2, and its criminal law applies subject to the rules on innocent passage in [Innocent Passage, and Straits].

Which law does an Indian court apply? The Act of 1976 and the rules made under it, together with the ordinary criminal law, not the Convention as such. India ratified the Convention, and it does not by itself change the law an Indian court applies.

Suppose the trawler had merely been sailing through at forty miles. Then nothing arises: navigation in the exclusive economic zone is free, and the coastal State's rights there are over resources and defined activities and not over passage.

What it does NOT mean

The exclusive economic zone is not territory. It confers sovereign rights over resources, not sovereignty, and the difference decides most examination problems.

The continental shelf is not the same as the exclusive economic zone. The shelf covers the seabed and subsoil and exists ipso facto and ab initio without any claim; the zone covers the water column too and must be claimed.

Ratifying the Convention did not change Indian law. The Act of 1976 did, and it came first.

No reservations are possible. Article 309 forbids them except where expressly permitted, because the Convention was negotiated as a package deal.

Limits and criticism

The package deal is showing its age. A Convention that cannot be reserved and is hard to amend deals badly with problems its drafters did not foresee, and Part XI had to be rewritten by a separate Agreement in 1994 before the Convention could enter into force at all.

The zones reward geography. A State with a long coast and distant islands acquires an enormous exclusive economic zone; a landlocked State acquires none. The Convention's provisions for landlocked and geographically disadvantaged States are modest, and the inequality is structural.

Enforcement depends on capacity. A coastal State with sovereign rights over two hundred miles of ocean and no navy has rights it cannot exercise, which is why illegal fishing is concentrated where enforcement is weakest.

Quick revision

Mare liberum (Grotius, 1609) against mare clausum (Selden, 1635); the compromise is distance, and Bynkershoek's cannon-shot rule produced the three-mile territorial sea.

Truman Proclamation, 28 September 1945: the modern expansion begins. UNCLOS I, 1958: four Geneva conventions. UNCLOS II, 1960: failed. UNCLOS III, 1973 to 1982: one Convention, 320 articles and nine annexes, opened for signature at Montego Bay on 10 December 1982, in force 16 November 1994 under article 308, twelve months after the sixtieth ratification.

A package deal: article 309 bars reservations except where expressly permitted. Part XI was rewritten by the 1994 Implementation Agreement before entry into force.

Zones: internal waters; territorial sea 12 nm; contiguous zone 24 nm; exclusive economic zone 200 nm; continental shelf 200 nm or to the outer edge of the margin up to 350 nm; high seas; the Area. All measured from the same baseline.

Article 8: internal waters are landward of the baseline; no innocent passage, except where an article 7 straight baseline newly encloses them.

Article 300 good faith and no abuse of rights; article 301 no threat or use of force; article 311 relation to the 1958 conventions.

India: Act 80 of 1976. s.3 sovereignty over territorial waters, 12 nm; s.5 contiguous zone 24 nm; s.6 continental shelf; s.7 exclusive economic zone 200 nm; s.8 historic waters; s.9 maritime boundaries; s.11 offences.

Test yourself

1. Trace the development of the modern law of the sea from 1945 to 1994.

The Truman Proclamation of 28 September 1945 claimed the natural resources of the continental shelf adjacent to the United States coast, and many States followed, which the North Sea judgment treats as the starting point of the positive law. UNCLOS I at Geneva in 1958 produced four conventions, on the territorial sea and contiguous zone, the high seas, fishing and conservation, and the continental shelf, but left the breadth of the territorial sea unsettled; UNCLOS II in 1960 failed to settle it. UNCLOS III sat from 1973 to 1982 and produced a single Convention of 320 articles and nine annexes, opened for signature on 10 December 1982 at Montego Bay, Jamaica. It entered into force on 16 November 1994, the delay being caused by objections to Part XI, which the Implementation Agreement of 28 July 1994 rewrote.

2. Why does the Convention permit no reservations?

Because it was negotiated as a package deal by consensus, in which States accepted provisions they disliked in exchange for provisions they wanted, and reservations would have let a State keep the benefits and discard the burdens. Article 309 provides that no reservations or exceptions may be made unless expressly permitted by other articles of the Convention, and article 310 permits declarations that do not purport to exclude or modify the legal effect of the provisions.

3. Set out the maritime zones with their outer limits.

Internal waters, landward of the baseline. The territorial sea, out to twelve nautical miles from the baseline. The contiguous zone, out to twenty-four nautical miles. The exclusive economic zone, out to two hundred nautical miles. The continental shelf, out to two hundred nautical miles or, where the continental margin extends further, to the outer edge of the margin subject to the limits in article 76. Beyond that, the high seas as to the water column and the Area as to the seabed and subsoil. All are measured from the same baseline.

4. What is the position in internal waters, and what is the one exception?

Article 8 provides that waters on the landward side of the baseline form part of the internal waters of the State, and sovereignty there is as complete as over land, with no right of innocent passage: a foreign ship enters by permission. The exception is in article 8(2): where a straight baseline drawn under article 7 encloses as internal waters areas which had not previously been considered as such, a right of innocent passage exists in those waters. The provision answers the concern that straight baselines can convert large areas of territorial sea or high seas into internal waters at a stroke.

5. Which law does an Indian court apply to an incident in India's exclusive economic zone?

The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976, Act 80 of 28 May 1976, together with the notifications and rules made under it and the ordinary Indian law, and not the Convention as such. Section 7 fixes the exclusive economic zone at two hundred nautical miles from the baseline. India has ratified the Convention, but on the position set out in [International Law in Indian Courts] a treaty does not by itself alter the law an Indian court applies, and the Act, which predates the Convention by six years, is what does.

6. Distinguish the continental shelf from the exclusive economic zone.

The continental shelf covers the seabed and subsoil of the submarine areas beyond the territorial sea, and the coastal State's rights over it exist ipso facto and ab initio by virtue of its sovereignty over the land, so no claim or proclamation is needed; that is the reasoning in the North Sea Continental Shelf cases. The exclusive economic zone covers the water column as well as the seabed, confers sovereign rights over the natural resources and jurisdiction over defined activities, and must be claimed. The two overlap out to two hundred nautical miles, and beyond that the shelf may continue while the zone cannot.