The presentation sketches the development of the law of the sea from the days of Hugo Grotius to 1982-- when the United Nations Law of the Sea Convention was adopted.

1. Law of the Sea: Historical
Background (1609-1982)
S M Masum Billah (PhD, Wellington)
Professor of Law
Jagannath University

2. Introduction
• Most revolutionary chapter of international law
during the past four decades.
• UNCLOS III is the latest most comprehensive
document on the point and is considered as the
momentous development in the history of law
of the sea.
• UNCLOS III now appear to command the
general consensus of the international
community.

3. Early History
• Statesmen were primarily concerned about open sea
in medieval times.
• Initially, navigation & fishery was open to all.
• 15th & 16th Century is the time of great maritime
discovery by European Navigators.

4. 15th & 16th Century
• Big maritime powers claimed sovereignty &
ownership over high sea.
• For example:
• Portugal-----------Whole of Indian Ocean , a very great
proportion of Atlantic
• Spain----------------Pacific & Gulf of Mexico
• Great Britain-------Narrow Sea & North Sea

5. Grotius Protest
1609
• Grotius strenuously
objected the tendency of
dominating the sea. His
argument was two:
• No ocean can be the
property of a nation. It can
not be effectively possessed
by occupation.
• Nature does not give a right
to any body to appropriate
things that may be used by
everybody and are
exhaustible. The open sea is a
res gentium or res extra
commercium.

6. Mare Clausum
• John Selden 1635: There
was no historical basis
for the sea to be treated
differently than land,
nor was there anything
inherent in the nature
of the sea that
precluded states from
exercising dominion
over parts of it.

7. C V Bynkershoek
Compromise position
presented by Dutch legal
theorist Cornelius
Bynkershoek, who in De
dominio maris (1702),
established the principle that
maritime dominion was
limited to the distance within
which cannons could
effectively protect it.

8. Then
• Grotius' concept of "freedom of the seas" became virtually
universal through the 20th century.
• Following the global dominance of European naval powers.
National rights and jurisdiction over the seas were limited to a
specified belt of water extending from a nation's coastlines,
usually three nautical miles (5.6 km), according to
Bynkershoek's "cannon shot" rule. Under the mare
liberum principle, all waters beyond national boundaries were
considered international waters: Free to all nations, but
belonging to none of them.

9. Contd.
• In the early 20th century, some nations expressed
their desire to extend national maritime claims,
namely to exploit mineral resources, protect fish
stocks, and enforce pollution controls. To that end, in
1930, the League of Nations called conference
at The Hague, but no agreements resulted.

10. Then
• The SS Lotus Case (1927)
• The I’m Alone Case (1935)

11. Truman Proclamation
• Mid 20th Century: Technological improvements in
fishing and oil exploration leads to exploitation of
natural resources.
• 1945: United States President Harry S. Truman
claimed control over the natural resources of
its Continental Shelf, well beyond the territorial
waters of the country.
• Truman's proclamation cited the customary
international law principle of a nation's right to
protect its natural resources.
• 1946-1950: Other nations followed the US.

12. Case Law
Corfu Channel Case
(1949)
Anglo-Norwegian
Fisheries case (1951)

13. The 1958 UNCLOS
The United Nations Conference on the Law of the Sea
had 4 Conventions:
1. Convention on the Territorial Sea and the
Contiguous Zone (CTS);
2. The Convention on the High Seas (CHS);
3. The Convention on Fishing and Conservation of
the Living Resources of the High Seas (CFCLR);
4. The Convention on the Continental Shelf (CCS).

14. Matters Unresolved by UNCLOS I & II
• The Specific Problems were:
• The precise breadth of TS
• Question of Innocent Passage by warships (either
through international water or territorial water.
• Right of passage or over flight in case of archipelago.
• Protection and conservation of species

15. General Issues
• In passage of time four Geneva Conventions proved
to b inadequate. These problems were general in
nature:
• The fishing grounds were faced with depletion
• The rules of fisheries were discriminatory
• Marine pollution was uncontrolled
• Coastal state was not sure about their rights in CS.

16. Other Problems
• Land locked states had inadequate access to the sea.
• Failure of Geneva Conventions to halt scramble of
exploiting sea resources by rich states.
• As a whole four Geneva Conventions were not accepted by
the countries at a time.
• Exploitability criterion on CS was paradoxically viewed
unsatisfactory.

17. Other Problems
• Newly emerged states feel that without technical
know-how and being financially disadvantaged they
would be powerless. So they would fail to prevent the
monopoly of developed states.
• Recurrence of catastrophic oil spills from giant oil
tankers ( for example: Torrey Canyon)
• Emplacement of nuclear weapons resulting
incalculable consequences for navigation and
fisheries.

18. Some Responses
• In 1967, Ambassador of Malta Mr. Arvid Pardo,
pressed for UN Action to be taken so that sea
resources beyond the national jurisdiction can be
recognized as the common heritage of mankind. He
urged to develop the area for the interests of all
states with special preference of disadvantaged states.

19. Some Responses
• Mr. Pardo’s plan was designated to avoid the
unregulated scramble by developed states to
ravage the mineral wealth of ocean floor.
• He was concerned about the militarization of the
deep sea bed.

20. Some Responses
• In Dec 1968, UNGA adopted a resolution as per Mr.
Pardo’s proposal and formed a 42 member
committee for peaceful uses of sea.
• The latter developments from 1969-1971 was marked
by this committee.
• In Nov. 1969 two conventions were adopted at
Brussels to deal with oil pollution casualties, namely;

21. Some Responses
• Convention relating to Intervention on High Seas in
cases of Oil Pollution Casualties i.e. Intervention
Convention
• International Convention on Civil Liability fro Oil
Pollution damage i.e. Liability Convention.
• Intervention Convention gave some self-defensive
rights to the coastal state against marine pollution
and Liability Convention attached absolute liability
on tank owner for pollution damage.

22. Some Responses
• In 1971, emplacement of nuclear and mass
destructive weapons on seabed, ocean floor and
subsoil were prohibited by Seabed Arms Control
Treaty. This was the first major step in preventing
militarization of the sea bed and ocean floor.

23. Some Responses
• In 1970, President Richard Nixon issued a statement
regarding US policy on the Ocean. This was
compatible with the approach favoured by UNGA.
• UNGA did two things after that: it declared some
principles relating to sea; it convene a Third United
Nations Conference on Law of the Sea.

24. The UNCLOSIII on the Table
• It took no less than twelve sessions to adopt UNLOS
from 1973-1982 . The first session was held in New
York and Final Session in Montego Bay, Jamaica.
• The main policy accorded in the sessions can best be
described from the declaration taken at Caracas in
1974:
‘To reach agreement on substantive matters by way of
consensus and there should be no voting on such
matters until all efforts at have been exhausted.’

25. The UNCLOS III on the Table
• Throughout the conferences there were remarkable
divisions between the developed states and
developing states. The former wished to retain as
much freedom of enterprise as possible. Because
they had sophistication of technology in their hand
and they were reluctant to be bound by the decisions
of bodies in which they may lack representation.

26. The UNCLOSIII on the Table
• 10 December 1982 is the day on which the Third
United Nation Convention on Law of the Sea,
acronymed as UNCLOS III, was finally adopted and
opened for signature. 118 Country signed the treaty
on the very first day even with a ratification by Fiji.
However, USA did not sign the treaty.

27. The UNCLOSIII
• Creation of a comprehensive and complete
international regimes for the high seas, coastal waters
and sea bed, the deep ocean floor, such regimes to
embrace coverage of all relevant economic and
environmental issues.
• But why did America not sign the treaty?
• Five principal objections were raised by US press release----

28. Excuse of USA
1. The sea bed mining provisions would deter the exploitation
of deep sea bed mineral resources.
2. Access to these resources was not assured.
3. The countries most affected did not have a proportionate
voice in decision making on sea bed policies.
4. Amendment provision is against America’s treaty
obligations.
5. The provisions for mandatory transfer of seabed
technology, potential benefits to national liberation
movements and production limitation was also not
acceptable.

29. What of the Future?
• The treaty is probably the best one obtainable and is
certainly better than the alternative of isolating the
US by not signing the agreement. ( Loius Henkin)
• Whatever may be the future of the Convention, the
law the sea, traditionally and for over three centuries
a stable area of international law, has now been
transformed in an effort to relate old rights to new
equities, and to create new rights capable of
regulating new resources.