Pre-UN development of the law of the sea

1. Introduction

We know that as early as the fourth millennium BC there were maritime trade routes connecting Mesopotamia with the Indus Valley. It is also known that commercial contacts between the Mediterranean basin and lands to the east existed as early as the Old Kingdom epoch in Egypt (third millennium BC).

Ancient commercial contacts between the nations of the Mediterranean basin and the Red Sea–Indian Ocean regions were documented from the Ptolemaic-Roman period (third century BC until the late second/early third centuries AD). In Hellenistic-Roman times, there were several maritime trade routes connecting the Mediterranean world with those lands to the east.

2. Rhodian Sea Law

When trading relations through sea routes began to grow in the Mediterranean region, trading nations began to develop rules for the conduct of maritime trade in the form of various codes for maritime commerce. One prominent example is the ‘Rhodian Sea Law’.

3. Era of ‘discoveries’

When the voyages of ‘discovery’ began towards the end of the fifteenth century, various attempts were made to propound new rules among nations governing the trading relations by sea. This can perhaps be regarded as the starting point of the modern law of the sea.

Following various expeditions by explorers such as Christopher Columbus, two major maritime powers of the day, Spain and Portugal, were given exclusive rights to acquire territorial possessions and trade in the undiscovered world. By issuing Papal bulls, notably the Inter Caetera of 4 May 1493, Pope Alexander VI gave Spain control of the seas and oceans west of the meridian line drawn down the Atlantic, and Portugal control to the east of it, dividing the world into two halves, each to be controlled by one of the two major powers. This division into hemispheres of influence was later affirmed by the Treaty of Tordesillas in 1494.

4. Five freedoms of the high seas

Spanish and Portuguese claims over the seas and oceans were soon challenged by some other European states which believed that the seas and oceans were a gift of nature to be used by all nations.

Accordingly, the principle of the ‘freedom of the seas’ was asserted by these maritime powers. This was the origin of the modern principle of the five freedoms of the seas.

They are:

a) the freedom of navigation

b) the freedom of overflight

c) the freedom of fishing

d) the freedom of marine scientific research

e) the freedom to lay submarine cables and pipelines.

5. Hugo Grotius

Leading among those writing in favour of the freedoms of the seas at the time was Hugo Grotius (1583–1645), a Dutch jurist whose legal writings laid the foundations for the modern international law of the sea. His monograph Mare Liberum (The Free Sea), published in 1609, articulated the arguments in support of the freedoms of the seas.

Grotius challenged the right of any nation to claim any part of the open sea as exclusively its own, arguing that such a claim was against natural law. He also relied on the tenets of Roman legal principles that the seas cannot constitute property because they cannot be occupied in the sense in which land can be occupied, and that they are therefore free to all nations and subject to none.

6. Open sea v closed sea

When the balance of political power shifted and England emerged as a more powerful European state, an English legal antiquarian and politician, John Selden, argued in favour of the mare clausum (closed sea) in 1635, a justification of a single nation’s rule over the high seas.

This was in contrast to Grotius’s argument in favour of the free sea (mare liberum). However, the idea advanced by Selden was short lived. Most of the scholars and major maritime powers of the day supported the idea of the freedoms of the seas.

Nevertheless, the idea of the closed sea found its expression in a limited manner in the principle of a territorial sea, under which coastal states would have rights over a narrow belt of water around the coastlines. Another Dutch jurist, Cornelius van Bynkershoek, formulated the principle of a territorial sea according to which the waters adjoining the shores of a country within the range of artillery on land were not included in the juridical meaning of the term ‘high seas’ and would come under the territorial sovereignty of that country.

This principle received wide support throughout the world, and many coastal states began to claim an area of the sea up to three nautical miles from the baselines as their territorial waters. Gradually, certain states began to claim six or even 12 nautical miles as their territorial waters. (It should be noted here that traditionally ‘nautical’ rather than imperial miles have been used in relation to marine matters.)

7. Twentieth-century developments

It was during the twentieth century that the most significant developments took place within the law of the sea. It was also during this century that the law of the sea acquired a truly global character.

Until the establishment of the United Nations, the maritime powers of Europe and the USA dominated the law and practice in the law of the sea. Furthermore, traditionally maritime questions were handled on an ad hoc basis, via bilateral international agreements on particular issues within the law of the sea. There was no international institution dealing comprehensively with maritime questions prior to 1945.

Until the establishment of the UN, only a small number of agencies existed dealing with some specialised matters relating to the law of the sea. An example would be the International Council for the Exploration of the Sea (ICES), set up in 1902 to encourage and coordinate scientific investigation of the eastern North Atlantic, including the waters off Greenland and Iceland.

The use of the seas by submarines and aircraft in an unregulated manner during the First World War (1914–18) demonstrated the inadequacy of international law with respect to freedom of the seas. Many traditional principles of the law of the sea were disregarded by the warring parties, including both Germany and Great Britain, in the pursuit of the war, especially during the British blockade of the European continent and Germany’s attempt to isolate the British Isles from the rest of the world. Indeed, interference by Germany in US trade through the sea route with Britain was one of the causes of the entry of the USA into the war in 1917.

8. Hague Codification Conference 1930

Following the establishment of the League of Nations after the First World War, the League convened a conference in 1930 in The Hague with a view to developing and codifying the rules of the law of the sea, among other subjects. It was attended by 47 states from different parts of the world. It was perhaps the first global conference of this nature to deal with the law of the sea.

The Conference demonstrated a gradual decline in the ability of the European imperial states to dictate the law, an emergence of the influence of middle-ranking states and a shift in the development of the law of the sea from a Eurocentric to a more international perspective. The Conference focused its discussion on the following main issues of the day:

a) the breadth of the territorial sea

b) the nature and scope of the contiguous zone

c) the rights and duties of states in the high seas

d) the continental shelf

e) fishing and the conservation of living resources.

One of the main purposes of the Conference was to reach agreement on the standard limits to territorial waters, as the traditional cannon-shot rule – which said that waters adjoining the shores of a country within the range of artillery on land were not included in the term ‘high seas’ – was considered too vague a measure and different states were making different claims to the waters around their coast. For instance, the UK and the USA had settled on a three-mile limit, whereas the Scandinavian countries had a four-mile limit, France had claimed six and Russia a 12- mile territorial sea. States were asserting these varying limits for different purposes – for example:

a) for national security

b) for control over fisheries

c) for customs purposes

d) for civil and criminal jurisdiction.

In addition, there were issues of control over mineral resources and offshore drilling for oil. States were concerned that the codification of customary international law into a binding legal instrument might hinder the exploration and exploitation of the sea as well as the development of the law of the sea itself.

Only a few countries supported a three-mile limit for territorial waters for all purposes. It was not possible to agree on a compromise proposal for a ‘contiguous zone’ beyond the territorial sea either, since the breadth of the latter was not agreed; the breadth of the contiguous zone depended on the breadth of the territorial sea.

Consequently, the Hague Codification Conference ended without the adoption of any final agreement. Nevertheless, the Conference did recognise the following principles as widely accepted principles of the law of the sea:

a) the territorial sea as subject to the sovereignty of the relevant coastal state

b) the general right of innocent passage in territorial waters

c) the general right of hot pursuit by vessels of a coastal state beyond its territorial waters.

The Conference was significant in the sense that it demonstrated that the three-mile limit preferred by the major maritime powers of the day was not acceptable to other states, and that international conferences such as this were important in developing international law. It also heralded the beginning of a wider debate on various uses of the seas and oceans. Consequently, the law of the sea became a matter high on the international agenda after the establishment of the UN.

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