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
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 SeaThe 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 Ol├ęron, which drew from Lex
Rhodia, and the Laws of Wisby, enacted among the mercantile city-states of the Hanseatic
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 seaŁ 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:
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
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.
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
Law of the Sea Convention:The Law of the Sea Convention (the ConventionŁ or LOSCŁ), 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:
Žmarine 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.Ł7
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
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:
- The Convention on the Territorial Sea and Contiguous Zone,
- the Convention on the Continental Shelf,
- the Convention on the High Seas, and
- the Convention on Fishing and Conservation of Living Resources of the
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 SeaŁ the Convention came into force in
1994, and as of June 2016, 168 parties have joined the Convention. 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.
- 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
LOSC operates as a Constitution of the SeaŁ 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
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 homeŽ.Ł
- 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 have done so out of a legal obligation, whether it be from
recognizing Grotius's idea of the free seaŁ 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
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
Continental Shelf under UNCLOS:
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.
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).
- 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
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.
- 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 areasŁ.
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 pollutionŁ.
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 śmare liberium' or śfreedom 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
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
Basically, the LOSC was the embodiment of the desire to establish true
universality in the effort to achieve a śjust and equitable international
economic order' governing ocean space.Ł
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.
- 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).
- United Nations Treaty Collection. treaties.un.org. Retrieved 2021-06-10.
- United States Senate Committee on Foreign Relations (2017). 24 StarŁ
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].