LAW OF THE SEA

 *DISCLAIMER*

The notes below are adapted from the Kenyatta University,UoN and Moi  Teaching module and the students are adviced to take keen notice of the various legal and judicial reforms that might have been ocassioned since the module was adapted. the laws and statutes might also have changed or been repealed and the students are to be wary and consult the various statutes reffered to herein

Review

As long ago as sailors ventured into the sea there were two competing principles governing the law of the sea

1.                   The right of the coastal state to control a narrow strip along its coast

2.                  The freedom of navigation and fishing in the high seas beyond the area of what coastal states controlled.

This issue of competing concept was settled in 1660 when a Dutchman Hugo Grotius – wrote a book called freedom of the sea propounding the idea of freedom of the sea.

The idea of an Englishman John Selden who wrote on the closed seas.  These are the so called battles of the books on the law of the sea which was won by Hugo Grotius with his idea of freedom of the law of the sea.  For 300 years from 1660  there were only minor challenges to the concept of the freedom of the High Seas particular the freedom of navigation and fishing which were generally agreed.  However, one problem remained unresolved and it is the issue of the law of the sea that dogged states from the days of Grotius to the time of the convention mainly the breadth of the territorial sea of a coastal state.   It was alright to agree that they were permitted to have a narrow strip but what was to be the breadth of that strip so that what remained would be the high seas for which Grotius advocated freedom.  Historically some states had 3 nautical miles territorial seas others have 12 nautical miles and others had all kinds.  They all wanted to increase their territorial jurisdiction which meant that a large portion of the seas was falling under coastal states and creeping jurisdiction of the state brought about an attempt to arrest the creeping jurisdiction so that others could have the right to navigate and control.

The freedom of the seas meant that a ship of another state could navigate the sea freely

The state of the ship (nationality) has exclusive jurisdiction of that ship on the High Seas

No other state can exercise jurisdiction over a ship with the nationality of another state.  they are conferred nationality by allowing them to fly the flag of a state.  this question of devising the concept of nationality to apply to ships did not sit well with certain international lawyers that had been convened later on to study the issues.  They argued that using the nationality concept would blur.. that challenge did not stop the usage nationality of the ship, it stayed to the extent that other rules had to be developed to deal with the question of nationality of ships.

The theory of genuine link was used to define when a ship can claim the nationality of a state, (Nottonbohm case).  A ship has to have a genuine link with a state whose flag it flies.  In essence when a ship flies the flag of a state of which it is a national it is established under customary international law that in the High Seas that ship is subsumed i.e. objective territory familiarity as defined in the SS Lotus when it was announced that a ship in the High seas flying the flag of a state is subsumed under the territory of the nation whose flag its flying.

It therefore became very important for the international community to agree on how far a coastal state would extend its jurisdiction and control so that a larger part of the sea would be left for the rest of humanity.

The law of the sea was beginning to devolve on developing the practice of seeking to control the urge to states to extend their territorial jurisdiction.

THE EARLY CODIFICATION ATTEMPTS BY THE LEAGUE OF NATIONS IN 1930s

The League of Nations was trying to see if there was enough practice that would throw light on the law of the sea.  What was the practice, what concept were states following when delimiting the breadth of the coastal strip. 

What problems are brought about by flags of convenience and how are they resolved?

CODIFICATION AND PROGRESSIVE DEVELOPMENT

These two terms are used in the Charter of UN to distinguish the process through which effort is made to identify the predominant state practice in respect to an issue and then agree whether it is worthy of becoming international customary law.  you merely codify you are not creating anything new.  Like using the low water mark to delineate the territorial sea, codified on the basis of state practice which is predominant.  Remember if a treaty only deals with principles that have been codified, it has a declaratory effect on public international law.  What is codified only reflects the practice that is found to exist.  If there is not enough state practice but maybe 40% of states are doing so, it is brought to states’ notice and states begin to negotiate and then crystallize the law.  The states may have started to do but were probably not brave enough so you bring it to effect.  Where an issue is so important that a new law is required and states have no idea about where to go, you call in the experts who negotiate and accept a completely new law to govern states conduct where legal control is required.  Call a conference and create a new law.  Such a treaty has a constitutive effect, it does not merely crystallize but it creates a new law.  This is why treaties must be ratified by states.  Both the crystallizing and the constitutive treaties are only laws to those who accept them but a declaratory treaty is binding.

The League of Nations at first failed.  When the UN entered the sea after the 2^nd world war, things changed.  The UN first codification attempt succeeded.  In 1958 we have the full Vienna Convention on the law of the sea.   The international community behaves in a rather crusade fashion, between 1967 – 1982 every self respecting law school was teaching the law of the sea.  The western world tried to influence the outcome by their experts writing copiously and commenting on the outcome.

In 1947 once US took the lead making a pronouncement on their continental shelf

The Law of the Sea Convention

United Nations Convention on the Law of the Sea

Early codification attempts of the Law of the Sea by the League of Nations and other Developments

A ship of any state has the freedom to navigate the oceans freely

The state of the ship nationality has the exclusive jurisdiction over the ship on the high seas No other state has the right to exercise jurisdiction of that ship

While states were allowed to control a narrow strip of their coasts with arguments ranging on how far to go.  With the question of the battle of the law of the sea settled, the law relating to ships was developing in a parallel version within the concept of the law of the sea.  When dispute arose as to whether a ship navigating the high seas with the flag of another state could be entered into.  In the famous SS Lotus case the court recognized the following emphasizing that the law relating to the legal status of ships was developing in  “a corollary of the freedom of the sea is that a ship on the high sea is assimilated to the territory of the state the flag of which it flies.  For just as in its own territory, that state exercises authority upon it and no other state may do so the Permanent Court of International Justice Serial No. 10 in the famous SS Lotus case.  This is in respect of the law developing to touch on the ships, the extent of the jurisdiction is not settled yet.  With the legal status of ships settled, the remaining issue was how to determine the extent of coastal state jurisdiction seaward.

As late as 1920 work began, governments became interested in settling this issue, how they were to agree at the extent and breadth of coast jurisdiction. In 1921 the states gathered in Barcelona to settle this issue but they failed.  In 1923 in Geneva they met again to discuss the extent of coastal strip jurisdiction and what kinds of rights was a state to have, were there any other rights to be enjoyed by states that were not coastal states?  Interest now was going beyond mere delimitation of the breadth.  In 1919 1^st world war ended and the League of Nations was established and the League got into the act.  The League convened a codification conference which was held at the Hague in 1930 from 13^th March to 14^th April to codify the Law of the Sea and take up other issues.  The simple question of the extent of delimitation was jeopardized by other issues and again the conference failed to give answers.

This question was to remain from 1930 to 1982.

In 1930 when the League failed, it opened the way for unilateral actions by the states each of them now declaring the area of the sea it now controls and there emerged two questions which were being illustrated by unilateral actions of the state

1.                   The breadth of territorial sea;

2.                  How to measure the breadth  of the territorial sea.

Brazil in 1938 declared that its territorial sea would extend to 12 nautical miles measured from the low water marks or the shore, the baseline.

Ecuador announced 15 nautical miles measured from the low water marks

USSR 12 nautical miles measured from the low water mark

French indo china declared 20 nautical miles measured from the low water mark

United Kingdom declared 3-12 nautical miles measured from the low water mark

Panama decided to extend between 300 – 1200 nautical miles measured from the low water mark.

We now have state practice trying to establish new law by suggesting that whenever the breadth is agreed, it shall be formed from the low water mark.

In the early 40s  especially after 1945 the 2^nd world war ended and in came the United Nations.  From the early 40s there was concentration for the search of the delimitation of territorial sea.  In 1945 Harry S Truman President of USA proclaimed that concerning the … the continental shelf is a natural prolongation of the land.  He was concerned about the principle that would extend the territorial sea jurisdiction the idea of the continental shelf.  He also took on the question of fisheries jurisdiction.  He never pronounced the particular breadth of territorial seas but made it open ended.  Other states wanted to respond to the Truman Declaration on continental shelf and fisheries.

Argentina using its sovereignty to extent its continental shelf and to declare a fisheries zone

Panama declared territorial sea and continental shelf without saying how far they went and included areas for fisheries.

Nicaragua, Chile, Latin America began to be extravagant and declared 200 miles territorial sea.  They were all responding to Truman’s declaration by extending their fisheries jurisdiction and territorial sea.

This continued as far as 1953 and states were still groping in the dark.  These early attempts to codify the law of the sea remained chaotic until the United Nations decided to do a thorough study of the problem.  It did not merely call a conference like the league but decided to approach the issues that had become chaotic by the unilateral decisions of the states.  The United Nations decided to use Article 13 (a) of the Charter of United Nations, that article allows the General Assembly to promote progressive development of International Law and its codification.  Using that article the UN had already put together a commission called International Law Commission made up of individual top notch lawyers representing the major legal systems of the world.  They were 34 from 1976 to 1995.  The International Law Commission ILC is the legal organ made up of 34 lawyers elected by the UN general assembly to draft articles and to deal with the problem and to suggest and produce a draft, which draft is given to the General Assembly of the UN to produce a treaty.

The UN decided to request the ICL to study the subject and possibly produce draft articles on the basis of which a new law of the sea and answers to all the questions could be negotiated and adopted.  This is a departure from the League, no conference.  The beauty of this style is that the ILC meets every year in Geneva (where Adede used to serve as a legal advisor)  they used to deal with legal issues and they worked very hard.  The ILC empowered by the UN to study the problem of the Law of the Sea and draft articles.  Since they are individual lawyers working in their personal capacity, the result of their work had to be looked at politically and every year the UN brings the report to General Assembly and submits it to the 6 to give its legal opinion and give decision.  It took them 5 years to draft a draft text which was prepared to the ILC and was the basis upon which the international community was able to conclude the famous 4 Geneva Conventions on the Law of the Sea in 1958 it was adopted at a conference using the draft prepared by the ILC.  It was a successful example of codification of international law relating to the law of the sea.

The 1^st UN Conference on the Law of the Sea

UNCLOS I of 1958 – this conference had before it a text that was prepared by members of the UN International Law Commission and placed before the conference.

The results of UNCLOS I

The efforts were successful in that the conference produced the famous 4 Geneva ‘Conventions of the Law of the Sea of 1958

1.                   Convention on the territorial sea and contiguous zone which came into force on 1oth September 1964 – they were all adopted on 19^th April.

2.                  Convention on the High Seas which came into force in 30^th September 1962;

3.                  Convention on Fishing and Conservation of the Living Resources of the High Seas which came into force on 20^th March 1966;

4.                  Convention on the Continental Shelf which came into force 10^th June 1964.

UNCLOS I succeeded in discussing 4 conventions dealing with the law of the sea.  The Convention on Territorial Sea of 1958:  on the elusive problem of the determination of the breadth of the sea the ILC observed that there was no uniform practice among states to suggest a firm commitment and a firm standard to define the breadth of territorial sea and so the convention does not define the scope and breadth of the territorial sea.  In fact as early as 1951 when negotiations were going on there was a case between UK and Norway where Norway tried to insist that 10 nautical miles had become customs territorial sea but ICJ rejected the idea that 10 nautical miles territorial sea had become customs law.  the treaty however codified part of the problem namely the baseline.  It accepted that the low water mark was to be the baseline from which territorial sea was to be measured therefore codifying customary international law in 1958.  But long before the case between UK and Norway the court said that for the purpose of measuring the breadth of territorial sea it is the low water mark as opposed to the high water mark or the mean between the two types which has been generally accepted in the practice of states, the criterion is the most favourable and clearly shows the character of territorial waters.  (Anglo Norwegian Fisheries Case).

The convention did something startling, it failed to establish the breadth of territorial sea but goes ahead to establish the outer limit of the Contiguous Zone.  That Contiguous zone shall not be extended beyond 12 nautical miles. 

Already questions were being raised that even if territorial sea was extended were there rights that other states could enjoy within the territorial sea. Were there residue rights that other states could enjoy?   This brought about the concept of innocent passage. The convention on the territorial sea did outline the concept of innocent passage which permits ships to pass through the territorial sea of a state so long as no crimes are committed and it is innocent passage.  A ship of a third state can navigate through the territorial sea under the concept of innocent passage in the territorial sea of a state.  So the first conference did not settle the perennial question and left it open.  Art. 23 (2) … the contiguous zone in no way should be beyond the 12 nautical miles.

The concept of the freedom of the sea was expanded with two more freedoms: freedom to lay submarine cables and pipeline and the freedom to fly over the High Seas.

DEFINATION OF THE HIGH SEA

The convention on the High Seas defined High Seas as all parts of the sea that are not included in the territorial sea or internal waters of the state.  The convention on the High Seas also accepted the doctrine of genuine link as a means of determining the origin of genuine ships borrowed from the (Nottenbohm Case) to deal with the ships.   Here we are using customary international law.  it is here that they started creating duties upon states that allowed ships to use their flags to effectively exercise their jurisdiction and control over the ships they allowed to fly their flags by providing the ships with documents.  Ships were thus prevented from changing their flags midstream and a ship could not own more than one flag.  After the 2^nd World war a lot of Western countries that had ships gave up their ships and allowed them to register with other countries that had less labour rules like Panama etc.  These were referred to as flags of convenience.  These flags became a nuisance and the ships were referred to as ships of open registry. As the law developed and economies developed, these concepts were beginning to clash i.e. the genuine link and flags of convenience were clashing.  There was a whole section on how to deal with ships that are used for commercial purposes i.e. merchants ships as distinguished from ships operated by governments for commercial purposes and warships.  What happens when ships collide in the High Seas.

SS Lotus – there was a collision between two ships and SS Lotus claimed territorial sovereignty and the court said that in such a case it is not exclusively the state whose ship in the high sea was injured that controls.  The ship with the injury can instigate the procedure.  Turkey had suffered an injury and they could go to court.

Convention on Fishing – this convention is known for recognizing the special interest of the coastal state in the conservation, management and exploitation of

the fisheries in the areas contiguous to its zone.  This treaty introduced already the concept that conservation of fisheries and natural resources in the territorial sea must be based on scientific evidence on the concept of maximum sustainable yield of those products to supply maximum food and marine products.

Convention on the Continental Shelf:    That convention defines the continental shelf and says that for the purpose continental shelf is used as referring

a.                  Sea bed and adjacent subsoil

b.                   

c.                   Depth of 200 meters and beyond that limit …  this was an estimation, it had no basis.  The capacity to exploit theory was found to be inadequate and led to rejection by the 3^rd world.

The United Nations convened a second conference on the Law of the Sea in 1960 (UNCLOS II)

The conference failed to solve the specific issue of the breadth of the Sea.  The suggested formula lost by a vote.

At the end of 1960 when the 2^nd conference failed these four conventions began to receive a lot of criticism because during the 1960s a lot of African countries were becoming independent and other countries were becoming strong enough to challenge earlier positions.  The four treaties soon proved obsolete due to the rapid increase in the use of the sea and fishing ceased to be a territorial exercise as fleet of ships started roaming of the seas, mammoth oil tankers started roaming the sea and major accidents made people aware of the dangers of unregulated marine environment could no longer cope with the pollution.  Technology developed to the extent that even deep sea bed resources became accessible.

A code of international law for the ocean was needed to deal with the major problems that had arisen.

Continental shelf – most countries found the definition very imprecise.  The question of exploitability allowed the countries with technologies to exploit the sea as far as they could.

1.                   Fishing had ceased to be a local enterprise because large factory ships and smaller fleets started roaming the seas for long distance fishing which began to affect and the question of depletion of fish arose.  Geneva convention of 1958 had already set the principle of optimum yield but no one was observing it.

2.                  Oil tankers began ferrying oil across the ocean raising the question of oil spillage and pollution

3.                  The marine environment could no longer cope with the assault of pollution from oil tankers, degradation from drilling

4.                  technology advanced to the extent of creating a possibility of mining the deep sea bed area where something called Manganese Nodules were found.  This had not been taken into account before.

Therefore the emergence of clusters of issues including the question of marine scientific research and technology needed to urgently be discussed.  Secondly we now have pollution as an issue to be addressed under the law of the sea and thirdly seabed mining added to now the famous issue of coastal state jurisdiction which was unsettled.  How far was the territorial sea. 

At the end of UNCLOS I AND UNCLOSE II 1958 and 1965 the world was faced with a nightmare of marine science and technology and everybody was convinced that the old regime had failed to bring order in the ocean.  They would have to work together and produce a new law of the sea.  The campaign to start a new negotiation to deal with the law of the sea began in 1967.

The campaign to begin this thing was originated by Ambassador Avid Pardo, who was the permanent representative of the government of Malta to the United Nations.  In 1967 on 17^th August Pardo requested the inclusion of a new item in the agenda of the 22^nd session of the general assembly of United Nations dealing with the issue of seabed mining only.  He wanted a declaration and a treaty concerning the reservation exclusively for peaceful purposes of the seabed and the ocean floor underlying the seas beyond the limits of present National jurisdiction and the use of their resources in the interest of mankind.  The debate began on whether such an item was supportable, could the UN initiate another discussion on the law of the sea dealing with sea bed mining.  The others joined and supported Malta for the issue to be included and discussed by the general assembly.

The United Nation did not assign this work to the International Law Commission but created an independent body called the Seabed Committee to study the peaceful uses of the seabed, the ocean floor and the resources thereof beyond the limit of national jurisdiction.  It was an ad hoc committee of a few states (27).  As the ad hoc committee began to do its work by trying to unravel what Pardo meant by reserving the seabed for the benefit of mankind and for peaceful purposes.

The United Nations in 1967 changed the ad hoc committee to a permanent committee known as the seabed committee with the mandate to deal with all issues touching upon the law of the sea and not limiting itself to the question of seabed mining.

In 1969 the UN passed a resolution creating a Moratorium Resolution so that all work on seabed beyond territorial jurisdiction had to stop, states could conduct activities in the sea bed area but they were not to exploit.  Three views were expressed concerning the so called seabed area that was supposed to be reserved for peaceful purposes

1.                   Whenever we define the area it is to be res  communis – common to everyone.

2.                  whenever we define the area it was to be res nulluis – belongs to no one;

3.                  Whenever it was defined it was to be part of the freedom of the High Seas in that it was shared and where exploited the rights of others had to be taken into account.

These conflicting views emerged as the sea bed committee began to deliberate.  After much discussion of these competing views about the seabed area, the UN passed another resolution in 1970 that now tried to elucidate the concept of seabed area and the common heritage of mankind as captured in page 5 of the handout.  That is where it was confirmed that the seabed and ocean floor and the sub soil thereof beyond the limit of national jurisdiction as well as the resources of the sea are the common heritage of mankind.  This was anew term coined to deal with the law of the sea.  … it shall not be subject to appropriation by states or persons and that it shall be open to use exclusively for peaceful purposes by all states without discrimination.

To manage their work the Seabed Committee decided to establish 3 seabed committees

(a)              the first was to devote its time to all issues of seabed mining and how it would be done within the meaning of the common heritage of mankind;

(b)              the second to deal with all issues relating to the question of the coastal territorial sea jurisdiction,

(c)               the third one to deal with marine scientific research and pollution.

These 3 had to produce treaty language that would soon become the law of the sea.  They were charged with that duty.  Since the agenda that initiated this discussion was by Avid Pardo who was more concerned with seabed mining, it appears that that influenced the focus of the decision at the committee in that they started much more quickly in dealing with the area of seabed mining and the fact that it had never been discussed before.  the question arose as to who would exploit the common heritage of mankind for the rest of the mankind, this was the first question.  Considering the 3^rd world have neither the technology or the money, how are they to exploit the area?  The discussion took almost 3 years to answer these questions out of which came the following basic solutions.

It was quickly realised that to be able to give effect to the area by exploring and exploiting resources for the benefit of mankind, the international committee had to establish a new international organization to deal with this issue.  The new organization was called the International Seabed Authority. What would be the structure of the new organization and what would be its functions and organ?  All these was being done by subcommittee dealing with the seabed mining issues.  They are the ones who suggested that the resolutions that gave the permission to explore and not to exploit had developed and now the area could be exploited but no state could begin exploiting except with accordance with the law to be developed and put into place. 

The law for seabed mining became another cluster of issues.  Can states themselves have the capacity of exploiting the area.  Sub committee one was grappling with how the law was going to be.

INNOCENT PASSAGE

Committee 2 was busy muddling through, the only area they had was the territorial sea but the other areas of the sea like the straits used for international navigation needed some questions answered.  States like Indonesia are Archipelagic states so what would be the regime of a state in archipelagic waters  for example.  What must a ship do when exercising its innocent passage in the territorial sea, if a submarine is having innocent passage in territorial waters, it had to come above waters and display its flag, no more underground.  Innocent passage had now become customary law.

Committee 2 also realised there was something called transit passage as opposed to innocent passage.  This meant unimpeded passage.

The high seas – committee 3 debated and found two more issues of the sea.  The 3^rd committee was grappling with marine scientific research and also pollution from dumping of waste and other matter, pollution from ships and the need to fashion the law that would be directed towards controlling all this pollution, this is in 1970-1973.  There are now other bodies like Inter Governmental Maritime body (IMCO) that used to deal with issues of pollution of the sea.  The environment had just held the Stockholm Conference and the question of the pollution of the universe became paramount. 

UNEP still wanted to deal with pollution but it was directed to deal with land based sources of pollution.  INCO called a conference in 1973 to deal with the problem of marine pollution from the sea.

While committee 2 was grappling with issues of sea lanes, what other jurisdictions were to be created for ships, there are merchant ships, government ships used for commercial ships, government ships used for non-commercial purposes and there are war ships.

Committee 3 became licensed to take issues of pollution across the board, they could answer questions of pollution comprehensively.  They were now writing the law that dealt with pollution from all sources.  They were writing to the law to deal with pollution.  Marine scientific research – committee 3 was developing concepts that would conserve and sustainably maintain the living resources of the sea so that they are neither under-harvested or over-harvested to destroy the sea.

Landlocked countries were also negotiating three quarters of which were in Africa.  The whole struggle was to prevent states extending their jurisdiction seaward creeping seaward so that they could not leave enough area for the heritage of mankind.   The UN took the view that the whole world is made of water and it was the land that was encroaching and the sea was all over and all mankind could benefit from it.  There was no need for the coastal states to be greedy as they took the view that the world was made of land but it was the other way round.

In 1973 the Seabed Committee working through the 3 subcommittees were able to produce certain draft articles in the form of the law of the sea.  These draft articles were in the alternative at variance.  They gave alternatives  the manner of drafting therefore became a problem.  They would give answers as either/or.  At the end of 1973 the Seabed Committee completed its work on producing suggested text for the purposes of developing the new law of the sea.  This is comparable for what the Law of the sea did for the

It was time for the UN to decide, we had UNCLOS I and we had had UNCLOS II.  In 1973 the UN convened the UNCLOS III.  It had taken 6 years of preparation from 1967 to 1973.  The first session of the 3^rd United Nations Conference of Law of the Sea (UNCLOS III)

Where was such a huge conference to be held to deal with the new law of the ocean.  This conference was supposed to have been held in Santiago Chile  in 1974, with preparations and 1^st Session being held in New York. But there was a coup and therefore the law of the sea could not be held in Santiago.  Ollende was overthrown and the conference was moved to Caracas in Venezuela.  Since it was a Latin America problem they insisted on the conference still being held in South America.

In New York for the admissive part of the conference, how were the chairmanship of the committees to be proposed, politics began, who should take committee I dealing with mining?  Africa got it a jamaa from Cameroun.  Committee 2 dealing with issues of law Americans got that, Committee 3 pollution and technology went to Eastern Europe, there was now the West Europe and others group which they took the drafting committee.  Asia got the President of the Conference Hamilton  Shirley Amerasingae of Sri Lanka.  From 1974 to 1982 it took 14 years sorting out cluster issues on the law of the sea.

There are about 18 types of states that were taking part in the negotiations of the law of the sea each pursuing their interest and making it very difficult to have consensus.

1.                   Landlocked and Geographically disadvantaged States (LLGDS) they ganged together to pursue their interests and were opposing increasing of territorial jurisdiction

2.                  Coastal States – trying to extend their territorial jurisdiction

3.                  Shelf-locked countries – countries without appreciable continental shelf

4.                  Marginalists States – states with an extended continental shelf

5.                  Territorialists – states who are declaring the territorial sea to the maximum 200 nautical miles

6.                  Land based producers of the sea-bed minerals, copper, cobalt etc

7.                  Major consumers of the seabed minerals

8.                  States with companies having sea-bed technologies – sea bed mining question

9.                  States with long distance fishing fleet

10.              states bordering the pathway of Mammoth oil tankers – interest in terms of pollution

11.              Archipelagic States

12.              States with zigzagging coasts

13.              states with warships , submarines and yacht etc

14.              States with opposite or adjacent coast

15.              States with specific communities known to be reliant of fishing e.g Hills and Obemsby

 The seabed committee decide to produce a single convention, unlike the past one, on all the issues.

The rules of procedure for decision making produced active consensus as opposed to Passive Consensus.  They perfected consensus that the consensus rule does not mean unanimity.

By 1970 we had not become politically correct.  The term used is Gentleman’s Agreement which was as follows, try to negotiate and reach decisions by consensus if we cannot agree we vote.  Have a cooling off period.

Consensus as a means of making decisions was perfected at the Law of the Sea where there were negotiations and decisions were reached and the participants were allowed a cooling off period. the spirit of glgl (give a little get a little don’t take all)

Sporadic extensions of jurisdictions especially for fisheries start to crop up all over.  Iceland extend its fisheries  jurisdiction to 50 and the UK opposed this and went to court.  the ICJ said that although the idea of a coastal state having preferential rights had been discussed, Iceland had the same preferential rights but they were to do it respecting the rights of other states. The concept of the EEZ had been mooted.  The ICJ said that they could not decide the case on the basis of a law that was still emerging and had not been enacted.   The court could not anticipate the law before it had been legislated.

In 1969 the Netherlands and Denmark brought a case against Germans on the delimitation of continental shelves.  The ICJ agreed with Truman saying that the continental shelf was the natural prolongation of the landmass of a coastal state seaward.  Art. 76 Law of the Sea

Art. 136 – Common Heritage of mankind – the area and its resources are  the common heritage of mankind.

Art. 151.          Production Policies

            Paragraph 4(b)         concept of a trend line

Art. 13 7(b)    rules, regulations and procedures yet to be established by the Authority.

Governments saw it necessary to negotiate however complicated to produce a Law of the Sea because there was chaos in the Ocean. The idea of having a comprehensive text was also desirable.  The convention balanced issues delicately and down the line the negotiators were expecting to put into place a viable dispute settlement system.   The law of the sea is unique in its approach to dispute settlement systems,  it was part of substantive negotiations and because of it being worked on along the line, it was possible to accept certain provisions because the parties drafting them knew that the provisions would be enforced by the Dispute Settlement System.

Art. 294:  Preliminary Proceedings:

The basic article that lists the kind of forums that were established for dispute settlement.  Abuse of process was not to be put up with.  The dispute tribunal could decide whether there was abuse or prima facie case to avoid entertaining frivolous cases. 

CLUSTERS OF ISSUES

Cluster 1        Deals with the question of trying to settle the limit of coastal state jurisdiction:

This process defined coastal state jurisdiction in 3 segments

1.                   Territorial Sea where a coastal state exercise complete sovereignty as it does over land – some states had extended theirs to 200 nautical miles and others 50 etc.  The present law of the Sea under Article 3 is on territorial sea states that every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.  The baseline had been settled earlier on and the court deciding that that would be the low water mark.  Article 5 except where otherwise provided in this convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state.

2.                  Continental Shelf:         the 1958 convention miserably failed in producing an acceptable definition of continental shelf.  3rd world rejected this and people were disappointed and the 58 standard was thrown out leaving only the natural prolongation of the land mass going seawards, how far was not settled.  Article 76 defines The continental shelf of a coastal state compromises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distant.  When negotiating the continental shelf it was discovered that some  countries had been blessed with a natural prolongation up to the rise  and were claiming the longest continental shelf which was  extending to upto 600 nautical miles but others did not even have the shelf proper and are referred to as shelf locked.  The idea was to persuade countries with different geographical endowments to agree on the limit of the continental shelf.   There are also countries with shorter shelf proper less than 200 miles and others upto 600 miles.  The attempt to deal with these differences was quite challenging and needed the expertise of people who could measure seismic waves to determine the area.  The result is reflected in Article 76 (4).  For almost 4 years there was no acceptable formula.   In the end a figure of 350 nautical miles was arrived at.  So for those who had 120 nautical miles of shelf and 60 miles of the slope one was allowed 60 nautical miles of the rise.  The earth crust and the ocean crust. One could only follow sediments up to the ice berth that is where the earth crust stopped not more than 350 nautical miles of the territorial sea.  The natural prolongation of landmass gives a maximum of 350 nautical miles. 

3.                  Fisheries Jurisdiction: delimitation using fisheries jurisdiction. Although there was an agreement that the territorial sea was to be of a limited nature, how about the area that was outside the continental shelf and contained fish and other living resources?  States could not agree on the Fisheries jurisdiction.  Originally States began to declare unilateral fisheries jurisdiction with Iceland declaring 50 miles beyond the territorial sea, Fisheries Jurisdiction Case.  This is where Kenya made a serious contribution by floating the concept of Exclusive Economic Zone (EEZ)  F X Njenga and his colleagues invented this concept.   Article 55 deals with the EEZ.  This is an area where States did not exercise complete sovereignty of the territorial sea.   The breadth of the EEZ was not to extend beyond 200 nautical miles from the baseline from which the breadth of the territorial sea is measured.  The EEZ proper for most government is 188 nautical miles as 12 nautical miles is the territorial sea.  The only measurement of coastal state jurisdiction that goes further is the continental shelf that goes up to 350 nautical miles.  12 nautical miles territorial sea, 188 EEZ and upto 350 continental shelf.  There are however some limitations in each segment even where the State exercises sovereignty.  There is the concept of innocent passage in the territorial sea of a coastal state, the right of other state of navigation and passage.

The delimitation seems successful at this point but the Conference failed to decide on states which had opposite coasts or adjacent coasts and this provided a problem.  The 1958 conference had addressed it and suggested that for the opposite state should be the Median Line for the adjacent state it could be the boundary of the Median line every part of which was equidistance from the nearest point.  IN the North Sea Continental Shelf Cases between Netherlands v West Germany, this issue was considered by the ICJ.   In some States if one were to use the Median Line it would cut them off but the Line works perfectly for others.  Some States have concave coasts and others convex coasts.

When Netherlands and Denmark argued before the ICJ that the Median Line was Customary International Law and that if Germany was not a party the Line would apply, the court held that the Median Line had not become customary international law in 1979.  the court however pronounced that in such a case delimitation should aim at reaching an equitable solution instead of straight forward equidistance median line.  In the UK they were going for the Median equidistant Line.  Libya was saying that equitable solution was the rule.  For 14 years this was never solved.  Up to December 12 1992 this issue remained unanswered.

Art. 74- delimitation of the eez between states with opposite or adjacent coasts.

Article 38 of ICJ only lists sources of law.

They failed and in article 38 they are now pleading.  There are still no standard or principle for delimitation of EEZ accepted by States with adjacent or opposite coasts.

Article 83      Delimitation of the continental shelf between States with opposite or adjacent coasts. 

The only compromise was that the delimitation was to be done peacefully, equitable solution.

Coastal State Jurisdiction continued

The Contiguous zone:

It is a zone lying outside the territorial sea. This contiguous zone is provided for in Article 33 of the Convention.

Article 33

CONTIGUOUS ZONE

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.  There is a different approach when it comes to states with opposite coasts.

The question of delimitation of territorial sea between states who are opposite or adjacent to each other still arises.  The same problem

Article 15

DELIMITATION OF THE TERRITORIAL SEA BETWEEN STATES WITH OPPOSITE OR ADJACENT COASTS

Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.

THE LEGAL STATUS OF THE TERRITORIAL SEA SEGMENTS:

Is there anything that would mean that the state has to share some of its segments with other states?

Innocent Passage:

SECTION 3. INNOCENT PASSAGE IN THE TERRITORIAL SEA

SUBSECTION A. RULES APPLICABLE TO ALL SHIPS

Article 17

RIGHT OF INNOCENT PASSAGE

Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.

Article 18

MEANING OF PASSAGE

1. Passage means navigation through the territorial sea for the purpose of:

(a)  traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or

(b)  proceeding to or from internal waters or a call at such road stead or port facility.

2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

Article 19

MEANING OF INNOCENT PASSAGE

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(c)   any exercise or practice with weapons of any kind;

(d)  any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(h) any act of wilful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage.

(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(h) any act of wilful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage.

Article 45

INNOCENT PASSAGE

1. The regime of innocent passage, in accordance with Part II, section 3 shall apply in straits used for international navigation:

(a) excluded from the application of the regime of transit passage under article 38, paragraph 1; or

(b) between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State.

2. There shall be no suspension of innocent passage through such straits.

There are straits in the international map that are used for passage, they are few but the law of the sea addressed the question of innocent passage within the strait.  The law allows the concept of innocent passage to apply.

Archipelagic  States

PART IV

ARCHIPELAGIC STATES

Article 46

USE OF TERMS

For the purposes of this Convention:

(a) "archipelagic State" means a State constituted wholly by one or more archipelagos and may include other islands;

(b) "archipelago" means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.

Article 47

ARCHIPELAGIC BASELINES

1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.

4. Such baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island.

5. The system of such baselines shall not be applied by an archipelagic State in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another State.

6. If a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighbouring State, existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected.

7. For the purpose of computing the ratio of water to land under paragraph , land areas may include waters lying within the fringing reefs of islands and atolls, including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau.

8. The baselines drawn in accordance with this article shall be shown on charts of a scale or scales adequate for ascertaining their position.  Alternatively, lists of geographical co-ordinates of points, specifying the geodetic datum, may be substituted.

9. The archipelagic State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.

Article 53

RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE

1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.

2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.

3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and over flight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or over flight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary.

5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points.  Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the nearest points on islands bordering the sea lane.

6. An archipelagic State which designates sea lanes under this article may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes.

7. An archipelagic State may, when circumstances require, after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by it.

8. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations.

9. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them.

10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation schemes designated or prescribed by it on charts to which due publicity shall be given.

11. Ships in archipelagic sea lanes passage shall respect applicable sea planes and traffic separation schemes established in accordance with this article.

12. If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for internal navigation.

INNOCENT PASSAGE AS A CONCEPT:

Article 20

SUBMARINES AND OTHER UNDERWATER VEHICLES

In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag.

TRANSIT PASSAGE:

SECTION 2. TRANSIT PASSAGE

Article 37

SCOPE OF THIS SECTION

This section applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

Within the regime of EEZ and the High sea they concocted the right of transit passage.

Article 38

RIGHT OF TRANSIT PASSAGE

1. In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics.

2.         Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State.

3. Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention.

The right of transit is limited to the two freedoms of Grotius days i.e. navigation and overflight.  It must be continuous and expeditious.  This transit concept is only for the exercise of navigation and overflight and they are also tied to straits used for international navigation.  This is just transit.

Article 39

DUTIES OF SHIPS AND AIRCRAFT DURING TRANSIT PASSAGE

1. Ships and aircraft, while exercising the right of transit passage, shall:

(a) proceed without delay through or over the strait;

(b) refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(c) refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress;

(d) comply with other relevant provisions of this Part.

2. Ships in transit passage shall:

(a) comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea;

(b) comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships.

3. Aircraft in transit passage shall:

(a)   observe the Rules of the Air established by the International Civil Aviation Organization as they apply to civil aircraft; state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation; (b) at all times monitor the radio frequency assigned by the competent internationally designated air traffic control authority or the appropriate international distress radio frequency.

A state exercising territorial rights has duties that must be exercised and so the core article is on the Transit Passage affecting EEZ which is Article 37 and 39.

What is the quantum of the freedom that 3^rd states will exercise in the High Seas with their ships and their aircraft?

Article 87

FREEDOM OF THE HIGH SEAS

1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:

(a) freedom of navigation;

(b) freedom of over flight;

(c) freedom to lay submarine cables and pipelines, subject to Part VI;

(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI;

(e) freedom of fishing, subject to the conditions laid down in section 2;

(f) freedom of scientific research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area

THE JURISDICTION OF STATES IN THESE SEGMENTS THAT WE HAVE DISCUSSED

Generally within the EEZ a State has certain general rights

Article 56

RIGHTS, JURISDICTION AND DUTIES OF THE COASTAL STATE IN THE EXCLUSIVE ECONOMIC ZONE

1. In the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:

(i) the establishment and use of artificial islands, installations and structures;

(ii) marine scientific research;

(iii) the protection and preservation of the marine environment;

(c) other rights and duties provided for in this Convention.

2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.

3. The rights set out in this article with respect to the sea-bed and subsoil shall be exercised in accordance with Part VI.

Article 77

RIGHTS OF THE COASTAL STATE OVER THE CONTINENTAL SHELF

1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.

3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

4. The natural resources referred to in this Part consist of the mineral and other non-living resources of the sea-bed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under these a-bed or are unable to move except in constant physical contact with these a-bed or the subsoil.

Cluster of the area of the Marine Pollution, Prevention, Reduction and Control from all sources

Protection of Marine Environment

From 1968 when the Seabed Committee was established there was a tendency to prevent governments to deal with the law of the sea on the grounds that a conference had been initiated to deal with the law of the sea.

1972 – Stockholm conference on environment was held and it was decided that anything to deal with pollution ought not to be dealt with by the environment experts but ought to be dealt with by the Law of the Sea.

1978 3^rd UN Conference on the Law of the Sea –Marine Pollution was being addressed. 

Article 192           - Article 192 GENERAL OBLIGATION

States have the obligation to protect and preserve the marine environment.

This was preceded by Stockholm Principle 21 which states have an obligation to protect and preserve marine environment.  This is part of the total environment to be protected by the States.

Article 194

Article 194

MEASURES TO PREVENT, REDUCE AND CONTROL POLLUTION OF THE MARINE ENVIRONMENT

1. States shall take, individually or jointly as appropriate, all measures

consistent with this Convention that are necessary to prevent, reduce and

control pollution of the marine environment from any source, using for this

purpose the best practicable means at their disposal and in accordance with

their capabilities, and they shall endeavour to harmonize their policies in

this connection.

2. States shall take all measures necessary to ensure that activities under

their jurisdiction or control are so conducted as not to cause damage by

pollution to other States and their environment, and that pollution arising

from incidents or activities under their jurisdiction or control does not

spread beyond the areas where they exercise sovereign rights in accordance

with this Convention.

3. The measures taken pursuant to this Part shall deal with all sources of

pollution of the marine environment. These measures shall include, inter

alia, those designed to minimize to the fullest possible extent:

(a) the release of toxic, harmful or noxious substances, especially those

which are persistent, from land-based sources, from or through the

atmosphere or by dumping;

(b) pollution from vessels, in particular measures for preventing accidents

and dealing with emergencies, ensuring the safety of operations at sea,

preventing intentional and unintentional discharges, and regulating the

design, construction, equipment, operation and manning of vessels;

(c) pollution from installations and devices used in exploration or

exploitation of the natural resources of the sea-bed and subsoil, in

particular measures for preventing accidents and dealing with emergencies,

ensuring the safety of operations at sea, and regulating the design,

construction, equipment, operation and manning of such installations or

devices;

(d) pollution from other installations and devices operating in the marine

environment, in particular measures for preventing accidents and dealing

with emergencies, ensuring the safety of operations at sea, and regulating

the design, construction, equipment, operation and manning of such

installations or devices.

4. In taking measures to prevent, reduce or control pollution of the marine

environment, States shall refrain from unjustifiable interference with

activities carried out by other States in the exercise of their rights and

in pursuance of their duties in conformity with this Convention.

5. The measures taken in accordance with this Part shall include those

necessary to protect and preserve rare or fragile ecosystems as well as the

habitat of depleted, threatened or endangered species and other forms of

marine life.

Fights were going on and there were specific organizations that were dealing with the issue of marine pollution within their own competence e.g. international Maritime Organization (IMO) UN body dealing with laws relating to shipping and relying on the call by Stockholm to negotiate treaties in the field of environment, IMO decided to take on the question of Marine Pollution in 1973.  they were asked to address the question of Marine Pollution but only from ships.

1973 IMCO Convention on Marine Pollution from Ships was held.  The following year the famous United Nation Environment Programme was held in Nairobi as UNEP also wanted to deal with pollution of Marine Environment since it was the establishment started to deal with environment but again the Law of the Sea  told them to concern themselves only with marine pollution from land based sources.

Pollution by Dumping of Waste and other matter:

Since there was not a single UN body with this responsibility, Her Majesty’s government in UK decided to convene a diplomatic conference on dumping and other matters.  They convened the London Dumping Convention to develop a treaty on dumping and to save the marine environment by stopping dumping of waste and other matters.

As UNCLOS III begun in 1974 to cover all the issues of the law of the sea – it was deal with the pollution of marine environment From any source! Including land based sources.

 210    - POLLUTION BY DUMPING

211      - POLLUTION FROM VESSELS

for negotiating purposes the style of writing a single convention was useful in that it increased areas of specific concerns of states negotiating and allowed them to trade off so that the results was a package deal between states made of a series of mini-package deals.  Those countries that were long distance owners of ships that were shipping elsewhere of their coasts were being reminded that in their fishing activities they should not pollute the areas that they fish.

The major tankers that were owned by a number of States and Companies were being put on the spot.  There was a time when a series of major tanker accidents happened and these began to create problems that went beyond the aegis of one particular nation.   They had to come up with ways of how to construct tankers so that when they crash they don’t cause major environmental accidents.  They also needed to consider training the people running the oil tankers and therefore you had countries taking part in the negotiations.  Countries with ships with flags of convenience because they had cheap labour legislation.  The law of the sea had to address all these issues. 

Emergency Pollutions: pollutions was occurring not only from the sea but also mining activities of oil in continental shelves was not to pollute the sea even the territorial sea.  So while concentrating on measures to prevent a particular type of pollution, states were being advised to ensure that in doing so they do not end up creating other problems for the environment.  If harnessing water for whatever reasons, care was to be taken to prevent damage to the environment.

Article 195

DUTY NOT TO TRANSFER DAMAGE OR HAZARDS OR TRANSFORM ONE TYPE OF POLLUTION INTO ANOTHER

In taking measures to prevent, reduce and control pollution of the marine environment, States shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one time of pollution into another.

Law of the sea was discussing pollution not only marine pollution but pollution in general and marine pollution in particular from any source.

At this time major issues arose in the context of law of the sea obligations.  How were they to make sure that States without technology had capacity to undertake the obligations.  The issue of Transfer of Technology, Technical Assistance and scientific research arose.  Before this time nobody cared what was going to happen but with the Law of the Sea the idea of beginning to take into account special interests of developing countries became a legal question.  Law of the Sea was expected to function and so everyone had to be able to comply.  Questions of global and regional cooperation to deal with these things became one of the most controversial articles to be written in a multilateral treaty.  There is a whole section on technical assistance and scientific research to developing state through competent international organizations promote programs of technical and other assistance

SECTION 3. TECHNICAL ASSISTANCE

Article 202

SCIENTIFIC AND TECHNICAL ASSISTANCE TO DEVELOPING STATES

States shall, directly or through competent international organizations:

(a) promote programmes of scientific, educational, technical and other assistance to developing States for the protection and preservation of the marine environment and the prevention, reduction and control of marine pollution. Such assistance shall include, inter alia:

(i) training of their scientific and technical personnel;

(ii) facilitating their participation in relevant international programmes;

(iii) supplying them with necessary equipment and facilities;

(iv) enhancing their capacity to manufacture such equipment;

(v) advice on and developing facilities for research, monitoring,

educational and other programmes;

(b) provide appropriate assistance, especially to developing States, for

the minimization of the effects of major incidents which may cause serious

pollution of the marine environment;

(c) provide appropriate assistance, especially to developing States,

concerning the preparation of environmental assessments.

Article 203      PREFERENTIAL TREATMENT FOR DEVELOPING STATES

Developing States shall, for the purposes of prevention, reduction and control of pollution of the marine environment or minimization of its effects, be granted preference by international organizations in:

(a)  the allocation of appropriate funds and technical assistance; and

(b)  the utilization of their specialized services.

The first treaty to take into account problems of implementation for all the treaty matters.  There was a huge problem or a gap that had to be dealt with which was transfer of technology.  The cluster of articles addressing the question of preservation or protection of marine environment from pollution from all sources had not been considered before until the 3^rd UN Conference on the Law of the Sea produced a committee dealing with marine pollution specifically.  In the negotiating arrangement there were experts dealing with delimitation and the rights of coastal states.  They knew all about the sea, ships, laying of submarine cables etc.