File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Origin of Law of Sea, Continental Shelf, and Rights of Coastal States in the Continental Shelf

For hundreds of years, the marine environment was free from regulation of fishing, shipping, and resource exploitation. Over time, coastal States....had an increased interest in national security and the enforcement of laws to protect its commerce and marine resources. As a result, a balance was needed to maintain the freedom of navigation that many foreign maritime interests had relied upon. This need for balance is captured in the history of the law of the sea. [1]

International law is comprised of treaties and customary international law. Customary international law is established through the actions that States take out of a sense of legal obligation. International law changes through changing treaty regimes, as well as through new and different legal norms that States assume based on what they deem to be the law governing emerging issues. Customary international law, and in recent years, treaty law, have played a central and continuing role in the evolution of the law of the sea.

In the beginning, the sea was not considered as of economic importance. This article endeavors to explain in detail about the origin of the Law of Sea, from res communis onwards to the third UNCLOS in 1982. Additionally, it also covers the concept of Continental Shelf and the rights of coastal States in the continental shelf while delving into the matters of territorial sea, breadth of the territorial sea, and delimitation of the territorial sea, and gives a brief mention of India's position on continental shelf.

History of the Law of Sea
The law of the sea is simultaneously one of the oldest and one of the newest bodies of international law. From the time the seas began to be used for the conduct of commerce and war, politicians, merchants, and scholars have debated who could use the sea and who could control it. Freedom of the seas has taken many forms over the centuries. In the beginning, the sea was not of much importance and was largely open for all nations.

Generally, the sea was res communis and its use was regulated by customary rules.

Among the earliest examples of legal codes concerning maritime affairs is the Byzantine Lex Rhodia, promulgated between 600 and 800 C.E. to govern trade and navigation in the Mediterranean. Maritime law codes were also created during the European Middle Ages, such as the Rolls of OlÃ©ron, which drew from Lex Rhodia, and the Laws of Wisby, enacted among the mercantile city-states of the Hanseatic League.

However, the earliest known formulation of public international law of the sea was in 17th century Europe, which saw unprecedented navigation, exploration, and trade across the world's oceans.

From the 17th century, a State's rights and jurisdiction on the ocean were limited to a specific belt of water extending from the coastlines. The tension between the free sea and the closed sea waxed and waned for centuries, generally with the powerful arguing that the sea was free to all, and the smaller States arguing for transnational limitations on what maritime powers could do to navigate the oceans and exploit their resources. Spain considered the Pacific Ocean a mare clausum literally a closed sea off limits to other naval powersin part to protect its the possessions in Asia.

Amid growing competition over sea trade, Dutch jurist and philosopher Hugo Grotius considered the father of international law generally wrote Mare Liberum (The Freedom of the Seas), published in 1609, which set forth the principle that the sea was international territory and that all nations were thus free to use it for trade. He premised this argument on the idea that:
every nation is free to travel to every other nation, and to trade with it. Thus, there was a right to innocent passage over land and a similar right of innocent passage at sea. Grotius observed that unlike land, on which sovereigns could demarcate their jurisdiction, the sea was akin to air, a common property of all:
The air belongs to this class of things for two reasons. First, it is not susceptible of occupation; and second its common use is destined for all men. For the same reasons the sea is common to all, because it is so limitless that it cannot become a possession of any one, and because it is adapted for the use of all, whether we consider it from the point of view of navigation or of fisheries.[2]

Rejecting Grotius' premise, English jurist John Selden claimed 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. In essence, international law could evolve to accommodate the emerging framework of national jurisdiction over the sea.

As a growing number of nations began to expand their naval presence across the world, conflicting claims over the open sea mounted. This prompted maritime states to moderate their stance and to limit the extent of their jurisdiction towards the sea from land. This was aided by the 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.
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.

By the 19th century the concept of the free seas, open to all, was the prevalent view, reflecting the dominance of large maritime powers, and Great Britain in particular, thus fostering a body of law that favored free navigation and the conduct of both commerce and naval operations across the world's oceans.
Law of the Sea Convention:
The Law of the Sea Convention (the Convention or LOSC), is binding on the States that are party to it, as well as other States (including the U.S.), to the extent that it represents customary international law. The Convention is the cumulative result of decades of diplomacy and is based on centuries of relevant practice and jurisprudence. At the time of the creation of the Convention, there was much talk about:
¦marine resources being exhaustible and in need of conservation; and that is the case again today, when the maritime powers coexist in equilibrium upon the pivot of mutual deterrence and cannot prevail over the host of small States that have tended to usurp their authority.7

No agreement came from efforts by the League of Nations in the early 1930s to decide on extending State claims of sovereignty over adjacent waters. In 1945, President Harry S. Truman extended the U.S.'s control to all the natural resources on its continental shelf, under the customary international law principle that a nation has a right to protect its natural resources. Chile, Peru, and Ecuador followed that example, extending their claim to 200 nautical miles (370 km) to include their fishing grounds.

Most States extended their territorial waters to 12 nautical miles. These developments stressed the urgency for the codification of law in order to strive uniformity and resolve maritime conflicts among nations. The matter was put on the agenda of the International Law Commission in 1949.
First and Second Conferences on the Law of the Sea:
The first off-shore oil rig out of the sight of land started producing in 1947, and there was slow growth of off-shore operations through the 1950s. In the 1960s there was a boom in activity and technology; platforms began drilling thousands of feet below the surface and could be located further and further from shore. During the same period, advances were made in fishing. Vessels increased in size and could travel further from port and stay out longer. Nations began to exploit distant fishing waters without restraint.

Issues of geopolitics and nationalism, in addition to interest in oceanic resources, amplified the desire of States to assert sovereign rights over increasingly larger areas of the ocean. All of these trends increased the pressure to adapt the principles of customary law of the sea to a changing world environment.

In 1956 the U.N. convened its first Conference on the Law of the Sea (UNCLOS I). Ending in 1958, the result of the first Conference was four treaties:
1. The Convention on the Territorial Sea and Contiguous Zone,
2. the Convention on the Continental Shelf,
3. the Convention on the High Seas, and
4. the Convention on Fishing and Conservation of Living Resources of the High Seas.
  
  These treaties entered into force between 1962 and 1966. Though the Conference was heralded as a success, it failed to address some key issues, including the issue of the breadth of territorial waters over which coastal States could assert broad sovereign rights.
  
  In order to resolve this specific issue, Second Conference on the Law of Sea was held in 1960 (UNCLOS II), at Geneva, but it again failed due to different claims of the States. However, it was realized that both these conference on the Law of the Sea were inadequate and left many matters unsettled.
  
  This made it imperative to reformulate the law of the sea in composite form to make it conducive to the new interests and demands of all concerned and paved the way to hold the Third Law of the Sea Conference.
Third Conference on the Law of the Sea:
The unanswered issue of territorial waters needed to be resolved. In 1966, President Lyndon B. Johnson referred to the deep sea and the seabed as the legacy of all humans. The following year, the Ambassador to the UN from Malta, Arvid Pardo, presented a proposal to the UN General Assembly declaring that the seabed should be part of the common heritage of mankind. In 1973 the third Conference on the Law of the Sea convened in New York. For nine years, States negotiated over the parameters of the law of the sea until the Convention was completed in 1982.

The U.S strongly supported the initiative of the third Conference and played a leading role in its negotiation over the course of the Nixon, Ford and Carter administrations. U.S. negotiators focused on preserving principles of freedom of navigation and other vital security concerns, as well as protecting the right of the U.S. to conserve and exploit the resources of the continental shelf and the 200-nautical mile exclusive economic zone. The U.S. negotiators were successful in these efforts.

Objections to U.S. ratification of the LOSC as originally negotiated largely focused on Part XI of the LOSC, which governs management of the deep seabed and provides for compulsory dispute resolution through the Seabed Disputes Chamber. The U.S. objections initially resulted in some degree of uncertainty over the future of the treaty. Following the lead of the U.S., many other developed States declined to ratify the Convention.

To address the concerns preventing the U.S. and other States from joining the LOSC, in 1994 the UN General Assembly (UNGA) negotiated what became known as the Agreement Relating to the Implementation of Part XI of the United Nations Law of the Sea (hereafter referred to as the Agreement). The Agreement is intended to be interpreted along with Part XI of the Convention, and addresses concerns developed nations had regarding the exploitation of the deep seabed and its administration. In the case of any conflict or contradiction between the texts or their interpretations, the text of the Agreement is to prevail. Any States ratifying the Convention following implementation of the Agreement are also bound by the Agreement. States which ratified the Convention before the Agreement may consent to the Agreement separately.

Heralded as a Constitution of the Sea the Convention came into force in 1994, and as of June 2016, 168 parties have joined the Convention.[3] The U.S. is a signatory, but the Senate has not ratified the Convention. The LOSC defines the rights and responsibilities of nations and their use of the planet's oceans. It establishes guidelines for businesses, environment, and the management of marine natural resources.

Various developed nations with significant naval and maritime assets, the U.S. and U.K. for example, strongly support the Convention. Since entering into force in 1994, the LOSC has increasingly become an important part of the international legal order. Followed by the vast majority of the States of the world, the LOSC provides the only framework within international law for resolving contentious issues such as freedom of navigation, fishing rights, and the appropriate scope and boundaries of maritime zones.
1. A Constitution of the Sea:
  Constitutions, like that of the U.S. or other States of the world, are documents outlining rights and protections of a group as well as a particular mode of governance. The Convention was consciously written as a comprehensive articulation of the rights and responsibilities of States with respect to, among other things, navigation, exploitation of resources, and exploration of the world's oceans. Additionally, the Convention covers governance over the sea and related disputes.
  
  It has been noted that [a]n examination of the character of the individual provisions reveals that [LOSC] represents not only the codification of customary norms, but also, and more significantly, the progressive development of international law¦
  
  LOSC operates as a Constitution of the Sea by offering protections and regulating action. It governs, among other things, limits of national jurisdiction over ocean space, access to the seas, navigation, protection and preservation of the marine environment, exploitation of living resources and conservation, scientific research, sea-bed mining and other exploitation of non-living resources.
  
  It also covers dispute settlement, created international bodies to realize specific objectives, and fosters international cooperation to address maritime issues such as safety and environment. LOSC attempts to achieve an overall equitable order by balancing concomitant rights and benefits against duties and obligations. Many U.S. officials, including military leaders, have pushed for the U.S. to sign LOSC so that the U.S. can take advantage of The Treaty'snavigational bill of rights' for worldwide access to get our troops to the fight, to sustain them during the fight, and to get them back home¦.[4]
2. The Law of the Sea Convention as Customary International Law:
  Although the U.S. is not officially a party to the Convention, it is still obliged to follow the elements of the treaty that represent a codification of customary international law. The Convention represents customary international law because of the state practice and opinio juris on which LOSC was based. Most States are parties to LOSC and actively follow its precepts. Even before the Convention existed, many of the norms included in it were already practiced by States.
  
  States have done so out of a legal obligation, whether it be from recognizing Grotius's idea of the free sea or from the previous iterations of the LOSC. It should be noted, however, that a comprehensively articulated and written agreement on the law of the sea is necessary to hold a small number of influential States accountable for practices that they employ in limiting access or navigation that are incompatible with the U.S.'s global interests.
  
  The fact that LOSC is a multi-lateral treaty, accepted by most of the world, is evidence of the fact that the Convention is custom, backed by opinio juris. Not only do other States follow the Convention, but the U.S. does as well. The U.S. generally supported the terms of LOSC and only disagreed with Part XI, regarding the seabed. At the very least, under customary international law the U.S. will be required to comply with the terms of the Convention that it did not actively protest.
Continental Shelf under UNCLOS:
1. Meaning:
  Shelf seas occupy about 7% of the area of the world's oceans but their economic importance is significantly greater. A continental shelf is the edge of a continent that lies under the ocean. A continental shelf extends from the coastline of a continent to a drop-off point called the shelf break. From the break, the shelf descends toward the deep ocean floor in what is called the continental slope. The continental shelf is an important maritime zone, one that holds many resources and vital habitats for marine life. The majority of the world's continental shelf is unknown and unmapped.
  
  Article 1 of the convention defined the term shelf in terms of exploitability rather than relying upon the geological definition. It defined a shelf 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 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas or to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.[1]
  
  According to the 1982 convention, each country's sovereign territorial waters extend to a maximum of 12 nautical miles (22 km) beyond its coast, but foreign vessels are granted the right of innocent passage through this zone. Passage is innocent as long as a ship refrains from engaging in certain prohibited activities, including weapons testing, spying, smuggling, serious pollution, fishing, or scientific research.
  
  Where territorial waters comprise straits used for international navigation (e.g., the straits of Gibraltar, Mandeb, Hormuz, and Malacca), the navigational rights of foreign shipping are strengthened by the replacement of the regime of innocent passage by one of transit passage, which places fewer restrictions on foreign ships. A similar regime exists in major sea-lanes through the waters of archipelagos (e.g., Indonesia).
2. Rights of Coastal States in Continental Shelf:
  According to the United Nations Convention on the Law of the Sea (UNCLOS), which came into force in 1994, the continental shelf that borders a country's shoreline is considered to be a continuation of the country's land territory.
  
  Coastal countries have exclusive rights to resources located within the continental shelf, which legally is defined as the seabed up to roughly 370 km (200 nautical miles) from shore or to the outer edge of the continental margin, whichever is farther, subject to an overall limit of about 650 km (350 nautical miles) from the coast or about 185 km (100 nautical miles) beyond the 2,500-metre (8,200-foot) isobath, or line connecting equal points of water depth.
  
  A country with a continental shelf that extends farther than 200 nautical miles from its shoreline has 10 years from the date it ratified UNCLOS to submit a claim on the part of the shelf that occurs beyond the 200-nautical-mile limit. In the first decade of the 21st century, several countries with Arctic coastlines made competing claims on the extended continental shelf regions within the Arctic Ocean.
  
  Where the territorial waters, EEZs, or continental shelves of neighbouring countries overlap, a boundary line must be drawn by agreement to achieve an equitable solution. Many such boundaries have been agreed upon, but in some cases when the countries have been unable to reach agreement the boundary has been determined by the International Court of Justice (ICJ; e.g., the boundary between Bahrain and Qatar) or by an arbitration tribunal (e.g., the boundary between France and the United Kingdom). The most common form of boundary is an equidistance line (sometimes modified to take account of special circumstances) between the coasts concerned.
3. Indian Position on Continental Shelf:
  Indian position on continental shelf has been made clear under Section 6 of the Maritime Zones Act of 1976. Part 1 of the section lays down that, 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 meters, or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas.
  
  The Act also lay down under section 6, Para 3 that the Union has:
  - Sovereign rights for exploration, exploitation, conservation, and management of all resources
  - Exclusive rights and jurisdiction for the construction, maintenance or operation of artificial Islands, off-shore terminals, installations and other structures and devices necessary for the continental shelf or for convenience of shipping or for any other purpose.
  - Exclusive jurisdiction to authorize, regulate and control scientific research
  - Exclusive jurisdiction to preserve and protect the marine environment and to prevent and control marine pollution.

Conclusion
The journey of the origin of Law of the Sea can be traced from very early times, because trade through sea has existed for a long time, and with that, the realization that control over sea routes and resources was a means of exercising power. However, the law itself as we know it today, didn't come into existence until much later.

Law of the sea has developed steadily and gradually since the time of Grotius. Earlier the powerful States laid extensive claims of sovereignty over specific portions of the open sea. With the developments in trade and commerce in the 20th century and the realization of the inexhaustible use of the sea, the classic principle of ˜mare liberium' or ˜freedom of the seas' was pushed into the background.

After 1945, once the UN was set up, it was decided by the UN security council and the Secretariat that there was a need to codify existing rules especially with regards to the Law of the seas and to come out with permanent solution vis-a-vis the maritime territorial limit of any country.

An attempt with UNCLOS I and UNCLOS II were made with this in view, and though they were declared a success, they had inadequacies and left many matters unattended.
That is when the 3rd UNCLOS came into existence in the year 1982.

The First session of the Third UN Conference on the law of the sea was held in New York in 1973. At the end of nine years in 12 sessions, the Conference adopted the Law of the Sea Convention (LOSC) in 1982.

It covered the aspects of the first two conferences, and also created new regimes. The UN Convention on the Law of the Sea (1982) is often referred to as the constitution for the oceans. It has 165 parties. The Convention's most important principles are considered to be customary law, and thus also binding on non-parties. States' rights and obligations in relation to the continental shelf follow from the Convention's provisions.

In fact, many of the provisions repeat verbatim or in essence the provisions of the Geneva Conventions, and give more detailed rules on matters covered by them. It contains provisions on those matters on the new legal regimes of Exclusive Economic Zone and the deep sea-bed. It has laid down a 12 nautical miles limit for the territorial sea. The Convention contains detailed machinery for the settlement of disputes, including an International Tribunal for the Law of the Sea.

Basically, the LOSC was the embodiment of the desire to establish true universality in the effort to achieve a ˜just and equitable international economic order' governing ocean space.
As for continental shelf as specified by the LOSC, coastal states have an exclusive right to explore and exploit both living and non-living resources on their continental shelf. They also have a duty to safeguard the environment on their continental shelf, and an obligation to let other states use the shelf for certain purposes, such as the laying of pipelines and cables.
There are limits to the continental shelf such that it may not extend beyond 350 nautical miles (648 km) or, alternatively, more than 100 nautical miles (185 km) beyond the point at which the seabed lies at a depth of 2500 metres. The latter alternative only applies to submarine elevations that are natural components of the continental margin.

There are two methods, both of which are based on the seabed's topography (i.e. physical features). One draws an outer boundary 60 nautical miles from the base of the continental shelf slope. The other is based on the thickness of deposits (i.e. sediment thickness). Coastal states may choose the calculation method that gives them the largest possible shelf.

Hence, by and large, we see that on many issues the 1982 convention is an improvement that contains precise and detailed regulations (e.g., on innocent passage through territorial waters and the definition of the continental shelf), but on other matters (e.g., safety of shipping, pollution prevention, and fisheries conservation and management) it merely provides a framework, laying down broad principles but leaving the elaboration of rules to other treaties.

End-Notes:

Shaw, Malcolm Nathan (2003). International Law. Cambridge University Press. pp. 523. ISBN 978-0-521-82473-6. Convention on the Continental Shelf.
From the NOAA website (viewed June 9, 2021)
Grotius, Hugo (1609). Mare Liberum [The Freedom of the Seas] (in Latin). p. 28.
United Nations Treaty Collection. treaties.un.org. Retrieved 2021-06-10.
United States Senate Committee on Foreign Relations (2017). 24 Star Military Witnesses Voice Strong Support for Law of the Sea Treaty. [online] Available at: https://www.foreign.senate.gov/press/chair/release/24-star-military-witnesses-voice-strong-support-for-law-of-the-sea-treaty [Accessed 10 Jul 2021].