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A changing international law of the sea

Published online by Cambridge University Press:  16 January 2009

R. Y. Jennings
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Extract

The legal régime of the sea has been a persistently important theme of the law of nations from the beginning; but it has probably never been more dominant than it is at the present time, touching as it does so many of the most vital interests of nations, such as the supply of food and of energy; politically sensitive questions like defence and immigration; and some of the most pressing aspects of pollution and conservation problems. With this renewed importance of the law of the sea have come also new doubts about its content and meaning, and even about the underlying legal principles. Half a century ago, the law of the sea was relatively simple, certain and stable, at any rate in time of peace. The classical dispute between the closed sea and open sea doctrines seemed at last to have been finally resolved on the basis of a kind of dualism by which the coastal state was to have sovereignty over a belt of territorial waters, subject to the general right of innocent passage, and the high seas outside that maritime belt were to be res communis, not subject to acquisition by title of sovereignty, but subject to an international régime which was spelt out in terms of the so-called “freedoms” to be enjoyed by the flags of all nations, the most important being the freedom of navigation and the freedom of fishing.

Type
Research Article
Information
The Cambridge Law Journal , Volume 31 , Issue 1: Jubilee Issue , April 1972 , pp. 32 - 49
Copyright
Copyright © Cambridge Law Journal and Contributors 1972

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References

1 Resolution 2750 (XXV) of 17 December 1970: Resolution “C” from which the above passage is cited was passed by a vote of 108 in favour, 7 against, with 6 abstentions.

2 [1951] I.C.J. Reports 116.

3 See Article 4 of the Geneva Convention on the Territorial Sea and the Contiguous Zone.

4 There is an irony in the circumstance that the Court was able to say in its judgment: “The attempts that have been made to subject groups of islands or coastal archipelagoes to conditions analogous to the limitations concerning bays (distance between the islands not exceeding twice the breadth of the territorial waters, or ten or twelve sea miles), have not got beyond the stage of proposals.” See [1951] I.C.J. Reports 131.

5 For a full discussion of archipelago claims, see O'Connell in (1970) XLIV British Year Book of International Law.

6 For a realistic appraisement, see Judge Sir Fitzmaurice, Gerald in Cambridge Legal Essays in International Law (1965) at p. 39Google Scholar: “[The judgment in the Fisheries case] has also been much misunderstood, for although its repercussions have been immense, the actual issue involved related (in the direct sense) only to a particular, and by no means the most important, aspect of the law of the sea. It is more as a catalyst that the decision has influenced the law in general, by facilitating a process which may still not have reached its culmination.”

7 See Limits and Status of the Territorial Sea, Exclusive Zones, Fishery Conservation Zones and the Continental Shelf, published by the Food and Agriculture Organisation of the United Nations, Rome 1969.Google Scholar

8 See Article 24 of the Convention on the Territorial Sea and the Contiguous Zone.

9 See Articles 1 and 2.

10 Article 2 of the Geneva Convention on the High Seas (1958).

11 [1951] I.C.J. Reports 132.

12 See Article 5 (2).

13 Naim Molvan v. Attorney-General for Palestine [1948]Google Scholar A.C. 531.

14 (1904) XI Revue General de Droit International Public 340.Google Scholar

15 U.S. v. Ray, 281 Fed.Supp. 876 (U.S. District Court S.D. Florida 1965).Google Scholar

16 See Francois, J. P. A. (1965) XII Netherlands International Law Review 113.CrossRefGoogle Scholar

17 For a very helpful treatment, see Bilder, Richard B. in (1970) 69 Michigan Law Review 1–54.CrossRefGoogle Scholar

18 Address by the Canadian Prime Minister, the Right Honourable Pierre Elliott Trudeau, to the Annual Meeting of the Canadian Press in Toronto on 15 April 1970; statement supplied by the Office of the High Commissioner for Canada in London.

19 The cumbrous full title of the committee is the “Committee on the Peaceful Uses of the Sea-bed and the Ocean Floor beyond the Limits of National Jurisdiction.” Mr. Beesley spoke on a number of occasions during these meetings but his main contribution to the general debate will be found in A/AC.138/ SR.63.

20 The distinction in the particular case of the Canadian Arctic waters is not always as clear as might be wished. Canada appears sometimes, though by no means consistently, to be suggesting that the Arctic pollution zone waters are in any case Canadian waters or at least could be regarded as such. See, e.g., the material in Bilder, op. cit. at p. 12.

In elaborating the idea of custodianship, Mr. Beesley also referred to the Trail Smelter Case; but of course that slight and much overworked decision concerned the duty owed to a territorial neighbour and not a duty owed either to oneself or to mankind in general.

21 See Article 23 of the Geneva Convention on the High Seas.

22 See Colombos, The International Law of the Sea (6th ed., 1967), pp. 137–146, for examples of such legislation in several countries.

23 e.g., The Grace and Ruby [1922] 283 Fed. 475.Google Scholar

24 United Kingdom Treaty Series, No. 1 of 1968.

25 See the article by Dr. Bowett on p. 50.