STUDY OF DR. GARCIA AMADER AN EXPLOITATION AND CONSERVATION OF THE RESOURCES OF THE SEA.

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• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-01043R002000130009-2
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• Document Creation Date: December 27, 2016
• Document Release Date: June 7, 2013
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• Publication Date: February 12, 1958
• Content Type: REPORT

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the R"mwees of the Sees A Study of Cmtex y juteawiwti Lal " The beak warms
.1y bashed in Spanish in 1956 As w4aed in the praf&c a to the RngUjih
ee itiana the ymvisiaml h men m" p epa red in anticipation of the United
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TFIE ABOVE INSTRUCTTON APPI TFC TO THR r PPA`D`I-& ~T.rr' (T.iT V
Cabx.tion of the Resew
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F. V. GARCIA - AMADOL
Member of the International Law Commission of the
T,tnited Nations. Representative of Cuba in the
Inter-American Council of Jurists.
STAT
THE EXPLOITATION AND CONSERVATION
OF THE
RESOURCES OF THE SEA
A STUDY OF CONTEMPORARY INTERNATIONAL LAW
(Provisional Publication)
La, Habanas
195.7
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F. V. GARCIA-AMADOR
Member of the International- Law Commission of the
United Nations. Representative of Cuba in the
Inter-American Council of Jurists.
THE EXPLOITATION AND CONSERVATION
OF THE
RESOURCES OF THE SEA
A STUDY OF CONTEMPORARY INTERNATIONAL LAW
(Provisional Publication)
La Habana
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PREFA CE
In the Spring and Summer of 1956, the author delivered a few
lectures on the "Legal Regime applying to the Use and Conserva-
tion of the Resources of the Sea" at the Escuela de Funcionarios
Internationales in Madrid and the Institut Universitaire de Hautes
Etudes Internationales in Geneva. These lectures, after extensive
re-drafting, were published in Spanish under the tittle "La Utili-
zacion y Conservation de las Riquezas del Mar - Estudio de Derecho
International Contempora'neo" Editorial Lex, La Habana, 1956).
During its eleventh session the United Nations General Assembly
considered the International onal Law Commission's final report on the
law of the sea and decided that an international conference of
ft % plenipotentiaries should be convoked to examine the various prob-
lems envolved in t_-? e development and codification of the subjects
The present English version is published now in a .provisional
mimeograph form in view of said conference, to be held in Geneva
from 2L February 1958. -
The use and conservation of the wealth of the sea has come .L.
1,0
development have naturally given rise to new needs and interests,-
the provision of :legal safeguards for which has necessitated a
substantial revision of certain traditional concepts and principles
be one of the most topical questions in contemporary international
lay:. _s will be explained in greater detail in the Introduction,
the extraordinary development in the tec_n Ques for exploring and
'exploiting these natural resources has had Quite important reper-
cussi ons in the economic and social spheres. Both -phases of 'his
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of the international law of the sea. It is the object of the
present study.to examine this new legal system at its present
stage of development with due reference to the technical, sci-
entific and socio-economic aspects of the subject and according
to a plan in line with the program followed in this field by the
United Nations.
Consistently with its purpose; the study is partly historical
and analytic, and partly a critique of the ideas and events that
are effecting a profound transformation in the international law
of the sea. We have accordingly endeavoured to assemble and set
out in systematic fashion the antecedents of the various problems
and to pass as objective a judgment as possible on their solutions.
As far as the latter aspect is concerned, we must admit to having
let ourselves be guided in expressing an opinion or passing
judgment by the following sound criterion: that the new legal
order must recognize and safeguard by just and effective rules
the legitimate interest of all in the rational utilization of the
resources of the sea. In so doing, however, we do-not feel that
we have.in any vray failed to preserve an objective standpoint; on
the contrary we have paid heed to one of the essential functions
of law in international relations. At all events, we wish to
emphasize in this connexion the strictly personal character of the
views and judgments contained in this study.
F. V. GY,R CIA AMAD OR
Havana, November 1957.
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T?A B L E O F C O N T E N T S
Chap.
I.- INTRODUCTION: THE FREEDOM OF THE SEAS AND CONTEMPO-
RARY PROBLEMS
1. The principle of the freedom of the seas and the
Page
use and conservation of their resources: The two
traditional sub-divisions of the seas- The re& , '.
sources of the high seas as res communis and as
an inexhaustible store of'we'alth.- The tradi-
tional concept of the freedom of the seas and
contemporary problems .............................. 2
2. Study of the question by international organiza-
tions: the United Nations and the Organization
of American States: The league of Nations and the.
Conference at he Hague (1930).- Programme of
Mork of the United Nations.- The work of the Or-
ganization of American States.- Method of study
followed by these organizations........;........... 4
3. The three aspects of the question: method and plan
of the present study: The opinion of Professor
Jessup.- The technical and scientific aspect.-
The economic and social aspect.- The legal aspect.
Plan,of this study ................................. 9
II. - THE,REGIME OF THE SEA ~LND THE NEW EXTENSIONS OF
ST1`3,^1E C.OMV PETENCE .
1+. How the sea came to be divided into different ,
areas: The regime of the sea in Antiquity: on-
cepts of the Roman jurists.- The earliest claims.
in the Middle Ages and the private law character
thereof.- Later claims and their public character.-
Development and influence of doctrine: the theoires
of Mare Liberum and bf Mare Clausum.- Definition
and acceptance of the various sub-divisions of the-
...........................12
sea... ..... .......
5. The high seas and the-principle of the freedom. of
the seas: Juridical nature of the high seas.- The
The high seas as a means of communication and
source?of wealth.- The meaning of the principle::
of the freedom of the seas.- Basis of the free--'
dom of fishing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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Chap.
Page.
6. The territorial sea: its juridical status, breadth
and delimitation: The idea of exclusiveness at-
taching to the territorial sea.- Juridical status
of the natural resources of this area of the sea.-
Various questions involved in the problem of the
breadth of the territorial sea.- Systems for the
delimitation of the territorial....... ............... 22
7. The rule of the marine league and the codifica-
tion Conference at the Hague (1930): The general
consensus in favour of the three miles limit.-
Other limits proposed or established in practice.-
Gradual abandonment of the marine league rule.-
Factors that prevented agreement at the Conference
of the Hague ........................................ 26
8. Subsequent development of practice and present
state of the question: The ideas of "Indivisibility"
in the concept of the territorial sea.- Is there
an international rule fixing the breadth of the
territorial sea?.- Is a matter for municipal or
for international later?.- Conditions determining
the validity of an extension of the limit beyond
three miles.- Must a maximum limit and a uniform
breadth be fixed for all States?.- The breadth of tine
territorial sea and the other extensions of States
competence .......................................... 30
9. The baseline of the territorial sea and the new
concept of "internal waters": 1T Internal waters":
their juridical nature and new areas included
therein.- The system of straigh baselines.- The
Codification Conference at the Hague.- Attitude
of the International Court of Justice.- Position
of the International Law Commission.... o9*9660066404 41
10. Other zones of exclusive exploitation; the "epi-
continental sea" and the 200-mile " 'laritime zones' :
"Zones of exclusive exploitation".- The "right of
property and protection" over fur seals.- The"prin-
ciple of abstention".- Cases envisaged by the Inter-
American Council of Jurists.- Earliest formulations
of the doctrine of the continental shelf.- Claims
to an "epicontinental sea": Mexico and Argentina.-
Iceland's "exclusive jurisdiction over fisheries in
the coastal areai'.- The 200-mile '-Maritime zone":
its economic and social bases.- The scientific bases
of the 200-mile "maritime` zoneiz.- Juridical nature of
the maritime zone and objects of the Ssantiago Decla-
ration.- Considerations of the legitimacy of such
extensions of competence ............................ 49
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Chap.
ll. -?JJ'reas of specialized competence or "contiguous
Laze .
zones": their juridical nature and the interests
the area designed to protect: Nature and function
of the "contiguous zones".- Origin and development
of the institution; the Conference of The Hague.-
Acceptance and subsequent development of the institu-
tion.- The "contiguous zones" as extensions of the
sphere of validity of State competence.- The insti-
tution of the "contiguous zone" and fishing inter-
e 65
III.- THE SUBMARINE AREAS AND THE RIGHT TO USE THEIR RE-
SOURCES.
12.-Terminology and definitions in connexion with sub-
marine areas: Configuration of the submerged land.-
Scientific Terminology and definition.- The three
broad categories of submarine areas................. 74
13. The natural resources of the subsoil and seabed:
The submarine areas as a source of wealth.- Petro-
leum and other resources of the subsoil.- The vege-
table and animal wealth of the seabed.- The"bentho-
nic environment"; sedentary and moving species...... 76
14. The legal question: its various aspects: Juridical
relation of the submarine areas to the territorial
sea.- Criteria for determining the seaward limit
of these areas.- Nature and extent of the rights
of ' the coastal State.- Juridical status of the
super j acent waters . - Problems connected with 'the
exercise of the rights of the coastal State and
the other aspects ................................... 79
15. Nature and extent of national claims: The earliest
national claims.- The inglo-Venezuelan Treaty of
1942.- United States Proclamation of 1945.- Other
claims showing the same trend.- Nature and scope of.
the claims of Mexico and Argentina.- Position of the
countries on the South Pacific seaboard.- The other
Latin-American claims ............................... 82
16. Position of the Inter-American organization and Con-
ferences: The first studies and decisions on the sub-
ject.- The resolution of the 10th Inter-American
Conference (Caracas, 1954).- The Third Meeting of the
Inter-American Council of Jurists (Mexico, January
10,56).- Position of the -Inter-American Specialized
Conference (Ciudad Trujillo, March 1956)......,...?:0 $$"
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Chap.
IV.
Page.
17. The International Law Commission's Draft: Text of
the 195 draft.- Submarine areas covered by the
draft.- Nature of the rights of the coastal State.
Meaning of the term "natural resources".- Legal
regime of the superjacent waters and the air space
above them.- Limitations on the exercise of the
rights of the coastal State.- System for determi-
ning the boundaries of submarine areas between
various States.- Method of settling disputes.-
The spirit of the Commission's draft ............... 9$
18. Nature and basis of the rights of the coastal
$ rate. conceppt o specfa :ieze sovereign compe-
tence.- The traditional conception of the basis
of the rights.- The socio-economic interest of
the coastal State and other factors and considera-
tions ..............................................107
THE COISERV.TION OF THE LIVING RESOURCES OF THE HIGH
SEr
A-:S .
10. The technical and scientific aspect: terms of refe-
rence and agenda of the Rome Conference 1 : More
important antecedents of the Rome Conference.- Re-
solution 900 (IX) of the General Assembly.- The
agenda of the Conference.- Preparatory work and
direction taken by its deliberations .............. 113
20. The utilization of the living resources of the sea
and the problem of their conservation: Current
aspects of the problem.- Antecedentes of conserva-
tion measures and programmes.-iiReaciondaagainst
develop-
the regulation of fishing.- Origin and
ment of the now dominarit theory.- Cases in which 11$
conservation in unnecessary and unjustified......
21. Present aims of conservation: The socio-economic
aspect of conservation..- -The Cuban and Mexican
thesis at the Rome Conference.- Acceptance of
the thesis by the Conference........????????????? -123
22. The Question of competence: collective regulation
and unilateral regulation by the coastal State:
General formulation of the question.- The three
fundamental cases that may arise.- Considerations
pointing to the "special interest" of the coastal-
State.- The system-of international co-operation.-
Trend in favour of unilateral regulation.- Posi-
tions adopted in the Rome Conference..; ........... 127
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Chap.
V.- CONCLUSION: THE 'U' lei INTERNATION-L.L LA OF THE SEA.
26. The new concept of the sispec i al interest" of the
coastal State: The special interest of the coastal,
State under Traditional international law.- The
new concept of the especial interests? and its two
main forms of expression in contemporary law.-
Other forms of `expression of-this concept........ 1'75
Page.
23. The system of the Cuban and Mexican draft: Gene-
ral character and scope of the proposal.- Point
of departure and objects of the system.- The dis-
cussion of the draft.- The procedural question
raised in connexion with the draft.- Conclusions
of the Conference on the substantive question...... 133
24.. Reconsideration of the question by the International
Law Corianission: The draft prepared by the Commis-
sion in 1953.- Text of the proposal which we sub-
mitted to the Commission at its seventh session
(1955).- The main principles underlying the proposal.
Recognition and protection of the special interest
o the coastal State.- Loopholes and deficiencies
in the traditional system.- The freedom of fishing
and the doctrine of the "abuse of the right".- The
right to take unilateral action and the protec-
tion of the interests and rights of third parties.
IViethod for settling disputes: Compulsory arbitra-
tion .............................................. 140
25. stem of the new draft of the international law
{L?n:lission: Comments of governments and inter-
r,meric: n resolutions.- The freedom to fish under
contemporary international law,- Meaning of the
phrase "conservation of the living resources of the
high seas.- Conservation as a right and as a duty
of Stc..tes.- Obligation to adopt collective measures
Applicability of the measures adopted by,third
States.- Nature and scope of the "?special interest"
of the coastal State.- The right to unilateral
action: circumstances and conditions of its exercise.
Case of a non-coastal State with a special interest
in conservation.- The system of compulsory arbitra-
tic)n envisaged in the draft.- Criteria to be applied
in settling various disputes.- Suspension of the
measures in dispute.- Nature and scope of the de-
cisions of the arbitral commission... *...a ... *0900 152
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27. The protection of the "general interest" under the
new legal order: The";eneral interest" also an es-
,sential object' of legal protection.- Safeguards
for'the general interest in the system applying
to the submarine areas.- Safeguards for the gene-
ralinterest in the system for the conservation of
the living resources of the high seas ...............177
28. The problem of the breadth of the territorial sea:
Point of departure of considering and settling this
problem:: Situations settled by international prac-
tice.- Criteria for dealing with other situations.-
Special position when ;'hi storici? fishing rights
exist.- Forms and procedures for the settlement of
disputes ........................................... 178
29. Role of the principle of the freedom of the seas
of the seas in contemporary international law: The
need to revise the traditional concept of the free-
dom of the seas.- Opinion of Professor Gidel.-
Position of the International Law Commission.- The
new conception of the principle of the freedom of
the seas ........................................... 182
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Chap. Page.
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CHAPTER I
INTRODUCTION
T1lE F13-.EEDOI4 OF THE SEAS AND CCNTWIPO LRY PROBLEMS
The exploitation-and conservation of the natural resources of
the sea constitute one of the most topical problems of contem-
porary international law. The main reason for this lies in the
extraordinary development of techniques for exploring these
resources and turning them to account. Advances in techniques
have made it possible both to turn to account resources hitherto
unknown or which could not be tapped, and to exploit other re-
sources on an unit easurablir more intensive scale than was previ-
ously feasible. The two -acts in turn have inevitably led to
a corresponding increase in the importance of such resources
for the economy or food supplias of a large number of countries.
To grasp the full iiaplica.ti cn of t'_i s it mast be born in mind
that the agricultural and mineral resources of the earth are
daily becoming less and lessadeq ate to~satisfy `industrial aid--
food requirements. From this point of
ing resources of the sea hRvo come to constitute one o~ the
richest stores of food that tie world possesses.
have also had their repercussions on
t
s
al developmen
Technic the yield of some resources of the seg.. As long as the means
and methods of fishing, whaling and sealing did not permit of
large-scale operations there was no reason why exploitation of
the living resources of the sea should affect their, yield, at
least to any appreciable extent. However, with
of much more effective means and methods enabling the resources
to be worked intensively, the situation radically changed. ~~
Catches became so large as to bring the risk of "over-fishing rnent
of some species, and, what was more, some of the e e U1p
used affected in some.cases the living conditions and ecological
environment of those and other species. Thus, the intensity
with which these living g resources of the sea can be exploited
and the effects of the use of certain equipment andapolithe ancesslz
have resulted in some of the resources being exposed
and even anninihilation. Once. it was
of depletion, impairment
realized that fishing, whaling and similar activities could .
adversely affect, the yield of, the sea's resources, there imme-
diately arose the quostson of the need to conserve them. As
will be seen later, the question of coming onserva iontof thhe
and more
living resources of the sea is c
fore nowadays, sometimes in the shape of an urgent problem.
The technical phenomena to which we have just referred and
their economic and social repercussions have naturally given
birth to new needs and interests as far as the exploitation
and conservation of the resources of the seaare concerned.
But the recognition of these needs and the legal protect
of these interests are not 'always compatible i-1ith certain
traditional concepts and-principles of the international law
of the Lea and the latter, evolved at a time when the situation
was -very different from the one we have described, will
perfoce need revising -in the light of present needs and
interests. indeed, this revision has already begun and it
z~<
_ k'
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_ 2
should surely be possible to carry it through without
relinouishing any of fundamontalpostulates of the international
law of the sea or depriving any legitimate- interest of proper
sr f cguards . But let us examine in greater detail the way in
which the problclns sot by the use - nd exploitation of the sea as
a source of wealth have boon forr=-iulatcd in present-day inter-
national law.
1. THE PRINCIPLE OF THE FR.E EDO ;I OF THE S E.,_9 ~IqD THE USE t~ND
COI`NSE tV'_TION OF THElR RESOURCES
The two traditional sub-c:ivisioin of the sea
From the standpoint of the use and conscrv'.tion of resources
of the sea, tr'diti_onal international law rc.cognized the sub-div
ision . of the sea into two areas only: the territorial sea
(togethor with the internal waters and seas) and the high sets or
open sea. The dominating principle of the, regime of the
territorial sovereignty of the coastal State. The dominating
principle of the rooime of the high seas, on the other hand,
was the freedom of the seas, involving the right of all States
to use and exploit its resources. This right was b .sod on two
promisses. Firstly the res curces in cuc;sti on wore rogc rded. as
res cormluni s i_n that they not lip blo to app ropri ration or
exclusive use and exploitation by an- single Str...te. Secondly,
all such resources being rcgardod as essentially inexhaustible,
it novGr occurred to anyone that the;;- mif;I't need to be conserved
and, hence, there is felt to be no justification for any kind
of restriction on the it free use. Nowad ys, however, those two
premisses underlying tine principle of the freedom of the seas
must be viewed in the light of the situation brought about by
technical developments in the exploration E.nd exploitation of
the resources of the sea.
The resources of the hi h scares es ores cornmunis and as an
inexhaustible store,, cf wealth.
It is, for example., easy to sec that the first of the two
premissos no longer holds so .bsolutoly as in the past, it being
no longer possible to describQ the entire resources of the high
seas as. res corimunis, when the natural resources of the bed and
subsoil of the continental and i.nsul: r shelves and of other sub-
marine areas adjacent to the territory of coastal States have
ceased to have that status in low. Under traditional interna tioncl
law, the coastal State w4 s acknowledged to have sovereign rights
only over that re- rt of the sea-bed immediately beneath its
territorial sea, outside which rroC the principle of the freedom
of the seas was considered to :..-)ply with respect to the use both
of the :raters and the sea--bed and subsoil beneath them. Fairly
recently, however, many States with the acquiescence of the
others and without being called upon to fulfil the condition of
virtual or effective occupation, have claimed the exclusive
right to survey and exploit the natural resources of the sub-
marine areas adjacent to their territories.
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The second basic premiss of the freedom: of use and exploi tThoon
of the resources of the high so( -,s has suffered a like fate.
fact that it is frequently, and at times ur ent7_y, recess ry to
take measures to conserve/ such resources rlcakes it impossible to
But as the measures
continue rcg,^rdir_ them all as
in question necessarily involve restri ct-i ons on the free use
of the resources, the question which then arises is how the may
be taken. In the past, strict- respect for the principle of
the freedom of the seas left only one Way open: that of inter-
national co-opcrat _cn, i.c. concerted action by all States
concerned in the u.-;e-and conscrvf-tion of the esauree:s in point.
But can one allow the resources to be exposed to the risk of
being depleted, impaired or annihilated. while States are
treeing on suitably. measures? ?: za t is to be done in face of
a" real and urgent need to take steps to conserve thorn? Traditional
international law could rive no answer to this pr oblcrn because
the only pcti?sicle solution was -incompatible with the absolute
freedom enjoyed by all States to use and exploit the resources.
But certain number of Stato.;e h vi.n of late to ker_ measures of
conservation unilaterally or p_-oclni=_ic;eL the right to take them
in zones of the high seas conu_`uous to their territorial waters,
the special interi.:ostll of the States in question in maintaining
the yield of thc3 living rosources c_f.' the sea in those: zones has
come to be recognized by ?internctio_ al bodies an conferences.
The legitimate nature of this inteerest, subject to the conditions
and limitations to which unilateral action would remain
subordinated i_~ o rde , to safe; uard tho equally legitime interests
of third State-, hz-.s f:;iven currency to the idea of acknowledging
this other right of the coast..1 State: in the high seas.
tr:e on _o =the sEa~ and
The trad ti ons concept of-.the
COil TtemDor ~t ~?rOL~leris
i~lhon the two premisses on which the r ;,lit to the free use
of the resources of the see I is f ound d are vie ad in the light
of the foregoing cousicl-3rations, it will be readily understood
that the- trc diticnal concept of this right is no longer in
harmony with the present stc to of affairs . i a result of the
new e tonsions of Stat6 cor-, e fence alroad;; mentioned and of others
to be studied later, new marine areas and special rights in
zones hitherto part of the high sr aq have come into being. But
this le al trend in no way implies' 16nat the principle of the
freedom,of the seas in those zones ias given nay to the principle
of the territorial sovereignty of the coastal State. As will
be seen when we study the scope of the,new extensions of
competence, in no case has the law of the high seas been
affected in its essentials. In the case of the extension of
sovereign jurisdiction of the ;tats over the submarine areas
adjacent to its territory, the exclusive rights attributed to
the State do not affect the status of the superjc cent waters
as part of the high seas. Similarly, the State's right to
regulate unilaterally the use of the living resources in zones
contiguous to its territorial sea, is no more than highly
fa
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specialised extension of competence, reco-ni tion of which would
equally not affect substantially the ri C,-,ht of the other States
concerned to use those resources.
in connexion Vr:i th the fore"oin one cannot fail to note the
acute, and ste: dill- rorsoni n;r, cr..cis throu.-,'h which the traditional
rule of the three-mile limit on the territorial sea is now
passin3. Though no _-oc for '?. readth has been established under
international law and no right accorded the coastal State of
fixing that breach': unil,,.terc.lly r.nd at its own discretion, it
is impossible to di sre~ Zrd the ver- real consequences that the
lack of uniformity c?n this point in present-day international
practice has ~-rid ill increasi_? ly tend to have. To this must
be added the fact t:iet, owing to the adoption? by some States of
the system of ctrc DTI?t baselines to measure their territorial sea,
the concept of ,iintrnal w'raters's h:s acquired a broader connotation
embracing vri d c: belts of water previously part of the high seas.
Finally, there is a tendency 'co recognize: in specific cases the
exclusive rip-ht of the coastal St`.tc to exploit the living
resources of certain aro:'s of sea, cr to exploit particular
species outside its int.;rnal waters and tc r.ci Lori al sea. It
will be readily understood the t this tendenc-T, os in the case
of the other two areas of s er! Just rcf e_ red to and unlike what
a mere C."_tonsio2? Usp ci.. iizod competence,
occurs in the CC. se of
iraolics a right affoctinr, in its esc:cnti^ls the fr..edom to
e,coloi t the living resources of the sea. in the case of the
areas' of sea ever which the sovc.rei,;nty of ?che coq stal State
extends or fo the rights claimed by t: .e letter for itself or its
nation I's, the extension of competence involves the exclusion c 4'
third Stetcs from the use and exploitation of all or some of the
resources of the cas i.n question.
These, then, in broad outline are the problems set in present-
da;T international law b;T the use and conscrvc.ti on o f the resources
of the s'ea. -tic; will d.rc1J. c t J., L ~;th on them in later chapters
nL a^~.- ?.~ o 3 r ov:~ d - 1_ :; c c; s s a r feasible
in o rder to see ho ~ ~ - f -^ it t? _ ~r and to
revise the principle of the freedom of the seas to meet the near
needs and i.?terests undLrlyin -h?.,so problems.' But -first let us
examine ..~ ~ions have
briefly i 3e t:_~ way t~_.. ~1 a a _ch~ l nt'..1 ni't._..: i tn~.l o1 ~ ~: var?Y?~eiopening peeither of bays or of inter-
~,ac
vals of sea a from the cross outward ~'
relines for its coasts. It outward side e .. of the ar''Chipe ago.
State shall fix t1=e said baselines er than is justified
not, however, make these baselines hPrgus being an inter - ..
by the rules generally admitted -p
usage in a given region or as principles consecrated bhe
nractice of the State concerned. and corresponding
that State or the interested population and to the
needs of ^i guration of the coasts or the bed of the sea
special cons_-~,
covered by the coastai tqatex s.'t
The joint proposal ~ brought out two fund,,:m'Sental aspects ?of the
~ the
circumstances ~. eographical cases to w?rhic_1 it could app1lcaai and on te
system: Elie g it; e hit
that justi_fiec? ! b_ establishing objective criteria for
bays' and archipelagos, ting its ap
archipelagos, and
determining th.e length o -Z' . esta the lines of demarcation.
Only certain aspects of the cons considerations and conclusions
advanced by SUb-Coi:u~aittee No. II * of the Conference can be
re ~a r_c 3' contribution to the developr~!entofe the traditioncl
In a its commentary on its article on baselines
system. . as
ittee admitted two exceptions to the lOW_water-mark
Sub-Coin
l icat75 - o69'?
53? Cf. League of Nations, Conference for the Codf
Law, Discussion, Vol l,
r_terriatio12a1 La~rr, aof
1929. v, rp.35, e_t_seQ?
54. Cf. League of Nations; Doc. referred to in footnote 11,
p.191?
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4.5 -
In fixing
rule: islands near the coast and grops of islands.
the closing line of bays, however, it accepted the limit of ten
in
rr:i.le s on the around that this was s the llca, cord-
1882. ftedinter urthermore ,aa
the North Sea Fisheries Convention of one adopted,
ing to the Sub-Conlinittee's report, most delegation agreed to a
ted
width ~ of ten miles, provided system were b iti~etcne as bays
under which slight indentations would not
Finally, sting its inability to for-
mulate Second Committee, in s t :...
any conclusion on the question, expressed vanopinion whic t of srai
might be regarded as in favour of applying system In its
baselines more widely than the Sub-Committee had done.
view, the problem of the status
mear_se confined waters Wton~shthe is~corical5~
in ruestion is aps)lied is by no
bays*I', but 'arises in the case of other areas of water also
Attitude of the International Court of justice
The International Court of Justice, when ;settling the Anglo-
Norwegian dispute, dispelled all doubt as to the manner and
scope of application of the system of s t- aig
1ti on to
determining the landward limit of the t of r torialasea In
stating the reason for its aTrra?'di~dthe ing the validity of the de-
limitacertaintion obje of ct~.v~: criteria :i:o- j i:~ State a 1)Iwing the system,
the tern^itorial sea of a applying nature
criteria. which it considered inherent in the juridical h~
following is a passage Ir om
7 1- e
of the area of sea in question.
the Award.
Among these consideration) some rep lr nee must n thbe made e land to
the close dependence of she terrj_to..
the land which confers upon the be maState de tdomain.
that
It ~ to the. waters off its coasts. It fsartha right
whwhile. such a State rilust be allowed the latitude necessary
baselines must
in order to be able to adapt t'reddr wingt of nb practical
needs-and d local require able) extent from the general di_ e
not depart to any p
tion of the coast ? ? -
Another fund,~menta:l consideration, of particular impor-
case is the more or less closenrelatiionio s
h_s
t en this
exise sting bet-vaeE%xl ce:ctain sea are ~seare~zl quest' on raised
which divide or surround them.
of baselines is in effect ~~rhether certain
in the choice, closely
r , ;,,i'chir. these lines ire sufficient y
e of
of the
Sin linked :to areas t to ty the land domain to be
i.
determina ~"'or_ of ~? c''?.~-'-scttthehbasisern
i,:-teY's . This ides 7 should be li-
internal
f t-r- coast) the'. e rules relating cg~~to, b ays, geographical
=
berall.y applied ins the case
guration of ~,rhic 1 is as unusual as that houl of Norway.
con.~a.~
there is One consideration not to be overlooked
Fi nall-r ~ ,
55. Ibid, pp. 217-218 5b r - ort by the Rapporteur of the Com!nictee (Professor
. C~ . I~ep
Francois) , op.cj ~. ?. 211
57. See the publication ' of the Court referred to in footnote
4.3 ,' p. 21.
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the scope of which extends beyond purely geographical fac-
tors: that of certain economic interests peculiar to a
region, the reality and importance of which are clearly
evidenced by a long usage.''
As the Court pointed out, these criteria or considerations,
though not entirely precise, can provide courts with an ade-
quate basis for their decisions, which can be adapted to the
C
diverse facts in question. The a:ward, declaring the Norwegian
system of delimitation to be valid, alsoei diva edlthe latittide
e
prac-
with which the criteria must be _.nterp
tice. In this respect, there is a marked contrast~with cthe
ideas prevailing at the Conference at the Hague,
as regards the criterion for fixing the enpoints be tw een indicated
straight baselines may be drawn. in that connexion was that the drawThe ing of aselines mu not
depart to any appreciable extent from the ge m lines coul
the coast. The Court moreover i?indc~ iorll~ti orssprovided that tl! e
be drai~?rli from any point in the was close
link between them and the adjacent waters was sfficieftly
for the latter to be regarded as internal waters.
question of the closing line of bays,
When considering the ~.
the Court also abandoned U-n n limit in terms of figures adopted
.
II of the 1930 Conference . In another pas-
bv Sub-Committee ~io. t that `tide ten-mile rule
sr_.ge in its ?~~?rGrd, it sthox it explicitly eral rule of international
general
has not acquired the autl10r1 v T of f a
, it
law"-, while- in one of the paragraphs quoted aboveh
n
that in determining the rules rel~~teas to bay vrithin those lines
question is S~whether certain sea al. s l. ting
y = ciently closel~T linked to the lcirid domain to be subject
arree s "1 regime of internal :va~ ~ersi? Arguing from this, the Court,
to the lines ra:~'n
In this-
by P,iorwithout~?.Tay a maximun distance, accepted as valid lines
betuee?1 points 30, 39 and 40 miles apart.
the Court seems to have accepted the objective view
respect, s d
he closing line should be dravm betwenfathe ucesaterr ae io?e.
that the of the bray (inter --M
between entranc.S p
1 the at which the il~dentata.on ceases to have the
be uween e points
ba ; ~L ?
configuration of a 3
the case of groups of islands or
ected the idea of fixing the
Fhipely, in cons Court a It defines
-figures.
maxrxhiueimum llliosi~!i,tt of he he the again re j n of
m~S baselines in terms
~t by the folloting extract from the
its position on this -point -1_
Award59: length of
'?The Court now comes to the question of the lthe baselines drawn across the waters, lYing between the
itself on
~ ^aaz^dss. Basing
various formations of the r~.kJ general rule of ten miles
the analogy ,~rith the all,~
58. Ibid, pp?192-29
59. Ibid, p? 19?
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47 -
relating to bays, the United Kingdom Government still
maintains on this point that the length of -straight
lines must not exceed ten miles.
In this connexion, the practiceof~ States not The
justify the formulation of any geae_
attempts that have been made toisubjectnga og os ofoislands
or coastal archipelagos to cona
limitations concerning bays (distance b-evween the islands
not exceeding twice the breadhavef onte ~otrb~~ondatheastage
or ten or twelve sea miles).,
of proposals.
Groups of islands or archip'elagos can be considered from two
standpoints: as land formations near to the mainlanchorea major
island, or as an independent group of islands
The case of which the Court was seizedl ca e in the first cate-term gory, but since it is viewed in general by
accepted by the Court, as will be seen further on, app
analogy, to the second case too.
position of_ the Interim ona - Commison draft on
~-
The International Law Comr_iss; -on, when reviewing ; _tchs change tts
the territorial sea at its seventh session b(1955), cht g the
position and adopted the criteria applied
wegIrl case, .ccording to the new text of article 5
:~nglo-Stor
of the draft ~.
'Where circumstances necessitate a special regime because
the coast is deeply indented or cut rinr orebeca se there this are
are islands in its immedl~.~e v_cl ~, t .
work *of its seventh ses.sion(11/2934) )
60. Cf. . t"teport covering the
p. 17. The previous text of the Commission contained a
eral "As a en-
second paragraph establishing; a en, ica l
ral rule, the ma.~imun Pierriz~tSssibSuch base3.y~~eS~ jnay be drawn,
baseline shall be ten m imita : straight
?
to paragraph 1, between headlands
when Just--if cif ed according, any such headland and an island
Lo miles s from the coast or between such islands.
le the coastline le between e' be drawn provided the
loss n poi thast- D five a baselines may, hoti^eve r five oon such __ . rocks and
~ ~s is more than ilve miles from the coast .
n point
Baselines 'shaalll not be drawn tthenworkoof*itsnsixth session
covering
Cf ? Report
shoals." L1~.
(A/2693)? P-
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justified by economic interests peculiar to a region, the
reality and importance of which are clearly evidenced by a
long usage, the baseline may be independent of the low-
water mark. In these special cases, the method of straight
baselines joining appropriate points may be employed. The
such baselines must not depart to any appreciable
drawing of
extent from the general direction of the coast, and the sea
areas lying within these lines must be sufficiently closely
linked to t .he land_ domain to be subject to the regime to frfm
internal waters. Baselines shall
drying rocks and drying Shoals."
The Commission, however, maintained the numerical limit onsthe
closing line of bays. In line with the amenamnen
mitted to the forn?er artible 5 of thedraft, I ad also sub-_
mitted a text according to which the l
tween the natural geographical entrance points where inden
tation ceases to have the configuration of a bay ?
The Conniission did not accept that ^P' iter oasaintern stipulated
s, water
that, for the graters of a bay to be i
the distance between the closing liner aaddth~ oll ow- ter lm irktatirn , that
must not exceed twenty-five miles.
exceeds twenty-five miles, apt 62 It
"where the entrance of a bay
preparithe i is
closing line of such length shallbs ssavni within
was to be hoped that at its eighth T the Commission would have
dihe
final report to the General Assembly, ,
revised its attitude to bring it inaotline vrit nth sthe y etobje c straigYzt
criterion applied by Court an t~3 The twenty-five mile limit,
baselines latter had adopted.
61. Conf. Room Doc. No. 35 (VII)
covering the work of its seventh session (A/293),
62 . C,-,. Report
p. 18.
its eighth session, t11e Commission revised the text
6, ? At inverting t
previously. ?d opted, special regime
follows: " here cis?cumstances necessitate a scoast is deeply indented or cut into or because
bee the 'iirumediate vicinity, the baseline
theerre tare he in is
lt
may.. In these se cps s, points
be independent of the low-vraie~i ning appropriate
baselines
the method of straight r, sarrinb of ;uczz baselines must not
may be er~_ployed The d_ direction
to any ap?rcC1able extent from withigen n thel lines must
depart
andtl~e sea areas lying
of the coaoi~ r closely linked to the Account domain tonbe sub-
may
be sul^of ci..n1613
of internal waters. ~ccoun m
ject , to the regi-ne of economic interests
, theereajity)and importance of which
peculiar be taken,
peculiar to a a long usage. baselines shall not
are clearly evidenced ryin rocks and drying shoals.
be drawn and thernwork its eighth session (k/3159))
Report cove vers g
article 5.
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applying both the maximun distance between the closing line and
the low-water niarlc and to the length that the baseline may have,.
is not justified by any geographical or. other consideration. it
is in fact an arbitrary limit incompatible with the determining
geograpliical and economic factors to be oQserved in countries
whose coasts have such deep indentations.
The Commission decided not to devote a special article to the
question of groups of islands or archipelagos. Hoiw:ever, as it
explained in its Report: "The Commission points out, for purposes
of information that article may be applicable to gruops of
islands lying off the coast;'In this case, the Commission's
view is not opposed to the doctrine and generally accepted prac-
tice on the subject-, i.e. that the criterion applicable to the
case of groups of islands or archipelagos taken as such is not
necessarily or solely that of the length of the straight base-
lines to be traced nor the breadth or the areas of sea enclosed
between them but an objectivecriterion similaritolahos.~bplied
in the case of coastal g_ opps of
_ 10. OTHER ZONES OF EXCLUSIVE EXPLOITATION: THE tIEPI CONTINENTAL
~~~ ZO?`qtr
"A' ~ T
-
SEA" AND THE 200-MILE
"Zones of exclusi ire el~loita.t? ion"
The territorial sea and the internal waters or seas are not
the only marine areas over which attempts have been made to extend
the full competence of the State itares
Certain extensions of competence
this stud,T, namely those made ~^~~~soua ~?cesjjeiti~ehe?fexclusive
Certain areas
and exploitation of the living ~,
of sea, or of particular species, outside the internal waters
and the territorial sea,. As ';dll be sceen notehavthese new ex
competence' too, not
tensions of sover -g~~-,
e _gn every case although as regards
scientific or economic basis ein~,ave a common denominator, the
their nature and puy'~. os - , they
fact that they confer on the coastal State the sole right to
61; . In the text approved at the eighth session, the distance was
article 7
reduced frc,m 6wenty-five to fifteen miles. I, bid.
65. Ibid. , paragraph (i') of the co:!enta.ry on article 10. 66. See in this connexion, Gidel. o .cit.?, co1.III, pp. 706-717
and Higgins and Colonibos, ? _ c?, A? 79
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fuor partial use of the marine fauna in a particular zone.
this general category of "other zones of exclusive
Two cases in
exploitation" are particularly well-Known: the "epicontinental
seat: and the 200-mile "maritime zones' . But these are not the
only cases of this category of extension of sovereign competence,
past or present.. To study them in the order that best fits
their individual features, we shall begin with thoese designed
to ensure the exclusive - exploitation of only one or more partic-
ular species.
The, Right of prope:ctynd protection? over fur seals
_ _ ----- ,
instance in this class is provided by the measures
L U.
A historic
taken by the United States in 1886 in connexion v.Tith the e fur
seal,fis.hery in the 3ehring Sea outside the three-mile limit.
These measures, to quote ,,he United States GoverfLrnent, were
taken in exercise of at right of property and protection" based
on the mode of life of the species, se maintenance wand hich
propaga-
tion poptilati or~ contributed fishing to its
; nr~~~gtY"J for the economy
tion and the importance of the fof that population. Great Britain, whose nationals were affected
by the prohibitory measures, protested against them on the ground
that the species in question was generally considered as in the
category of 'farac natur~~,,e ,,, and that its mode of life prevented
its being regarde as an object of ownership.. the l 15
Tribunal set up to settle the dispute
August 1893 decided that It-the United Statesirequnotianytright
of protection or property in the fur seals islands of the United States in B hring Sea when such seals
are found outside the ordinary three-mile limit--11.67
The s?Princiole_ of- ,abs j~ 011h
L15t1f the exclusive exploitation of
The grounds invoked to j y_
seals in the Petering Sea were later used to claim similar
the fur sea.. s for example in the case
t to other Specie 5,
rights with respec 1, ;t rinci le
of the so-called uprinciple of ahstehti01nto f is pfrom 1923
system or procedure put
sprang from the
onwards by the United States and ~nntie ;o,-.th PPck the ac fic5and Yo
decrease in the yield of halibut h acifistention of
try and. bring it up to- a sustained ma. i TL us it was a "con-
~s.ing the, especies.
their nationals from ; strict sense of the term
and servation" system or p
rocedure the was incorporated in the =ntCanad aontheT`TUn itedaStates
and as such ve was by
force in n signed 1953? one aspect of the
Fishery Convention into
and Japan and came ilZto
and aspects of this dispute,see Leonard,
tails
67 . For. other d e
International. Regul~~ti.on of Fisheries (Washington)
L . In't,ern
L.
1955) , p-55 2L2_301-01*
I
:-
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?'principle of abstention" has emerged of late which, though also
bound up with the problem of conservation and hence with its
objectives, lends it wider scope. In its observations on the
1955 Draft of the United Nations International Law Commission,
the United States Government' drew attention to 'Usituations where
Ctates have, thr. ough. the expenditure of time, effort and money
on research and mangement, and through restraints on their fish-
ermen, increased and maintained the productivity of stocks of
fish, which Without such action would not exist or would exist
at far below their most prod~~ cti ve level". Under such conditions,
it suggested that "when the stocks are being fully utilized,
that is, under such exploitation that an increase in the amount
of fishing would not be expected. to result in any substantial
increase in the sustainable yield., then States not participating,
or which have not in recent years p trticipated in exploitation
of such stocks of fish, excepting the coastal State adjacent to
the waters in -which the stocl q occur, should be required to
abstain from participation". H
As can be seen, the right claimed is not exactly an absolute
and unlimite One to the exclusive exploitation of certain species,
for recognition oi' the right is subject to the prose Stat~sspe-third cified conditions and t,orulms~ aLf~or~ fis~.;,?;'the species in
would not be required
question if an increase in fishing would lead aorallargofin-
crease in the sustainable Yield'?. Secondly, rga
,.,_.
whether- that cona~.U~ on is ful-Filled, any States which participate
or have participated in recent years in tine exploitation of the
species, together ;with the coastal State , irrespective of whether ? er it participates'
tthe
arti cipates or has participated) are excepted from
he
rule. Ho:~ever, these exceptions :part, the right had
contributed would be reserved for the State or States which had
contributed to the increase in or susteilti on of the yield.
},merican Council of Jurists
Cases envisap?ed by the I.1te~.-......
type s of claim to the exclusive exploitaright tion is pnot artsu'o=
Other
ular species have been, forra
ons _andecircumstances as in the above
ject to the same coed
s ' we have in mind are the different ewes
case. The example II of the Third }Meeting of the inter-
cove-red by resolution 1I already mentioned in connexion with
~.r;_eric?r_, Council of Jurists, Section C
she territorial sea&
the :iuest:Lon o the bre-a th of
of -the resolution headed = Conservation of the Living Resources
of the High. Seasit , co11tai.~as the f ollo\\.ing paragraph:
._ in addition, the right. of exclu-
sive Coasta_. S?Gtcs have, related to the coast,
slue oxplo_~.ta:tion of s?0ecies ._80-$1 On the "principle of ab-
6~. Cf.Doc. '-/CA;?d geFieral see l~~, al) see Hei ringto:,, t~.C., StCorimients on
in gene
tentioinciplc of abstention", Doc.A/Conf.10/L.19 of the
the p- Technical Conference on the Conservation of
r
International Te l the Sea (Ram, 1955).
the Living `sesources of
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the life of the country, or the needs of the coastal popula.
tion, as in the case of species that develop in territoria_
waters and subsequently rii grate to the high sea, or when :?e
the existence of certain species has an important relation
to an industry or activity essential to the coastal country.
or when the latter is carrying out ii.iportant works that will
result in the conservction or increase of the species."
The records of the Council Meeting do not shed sufficient light
on this part of resolution "LiII to enable us to see what the bases
of these various cases of exclusive- exploitation are. As pointed
in the Introduction, the Council was not qualified either by its
terms of reference or by its composition to consider the technical,
scientific and socio-economic aspects ron sold iConfon of
problem depends. 9 The Intea pe z er
ence, which met a few weeks later, decided nothing on this point
and did not ev.n consider it directly.
'te shall be returning to this problem letter in order to see
whether, or to whet extent, the coastal State can in certainFor
cases legitimately invoke this sole righ'~H of, xploitation. orm
the moment, let us see what other forms akes? o the way the claim is put, what is involved is no longer a right
to the exploitation of certain species but an extension of sov-
ereign competence over certain areas of seat and, hence, ans
equally exclusive right to explore siz, then i cieg nuances
therein. As in previous cases,
in the typi cal for1nUlatio-10 of this extension of competence.
Let us first consider those relating to the zone known as the
Ilepicontinental sea'f .
Earli.e st forms t. one of the do err ne of rile continental shelf
t zone of exclusive
The first formulations of doctrine ,on t
were scientific and economic in character.
exploitation 81 the Spanish
National Conference on Fisheries at I~ic drid in i9 ,
iaintained the thesis that z,~rhile
oceanographer, Od6n de 'uc,n,h : 11 ''thee continental shelf
the domain of the ocean should be for ,, ' ~-belongs, be cause
should belong to the nt1O17a to ~'1?ei'llathe i?d. hassan even
It is a continuation of I; Arguing from the fact that "the,
domiciled there -species
fluence on it than the sea.
sedentary. speCi-es arc-, so to speak) ustr y o=1 11hich. the greater part
that support the local fishing i nd he part
^ l be . t-,on depends I.? , p
of the= acti u se` coon al w~ters ~be extended to cover the whole
Jose. Levin
that t s., shelf's.7U The Argenti.niar! professor,
continental
a
XIII
above. In convex; L-n with reooluof urists,tsee
69. She p? of the Mee in?g. of the
the do cu-ment s o -
r in f oot~?ate 79.
the document referred to
J I de, La Platafol is Sub:nrira ~~ el Derecl?o
70. Cf. Lzcur-raga, ~iadri d, 1952 ?~. .37 ?
Intern_a ciori 1. i (~'^
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.. 53 _
Suarez, in some lectures delivered the same year in Sao Paulo,
Brazil, went at greater length into the scientific and economic
aspects of t1-.e new theory and also agreed on the need to extend
the territorial sea, because "trade requires, it and, above all,
fi.shi.ng, whaling and sealing, as the life cycle of the most
valuable species gravitates between the territorial sea and the
open sea, which are separated from each other only by an imaginery
man-made barrier but constitute by their nature and form a Single;
continuous whet:." .71 This theory was maintained on subsequent
occasions though not always in connexion with the idea that the
territorial sea should extend to the limits of the continental
shelf. Barbosa de Magalhaes, for instance, in his observations
on Dr. Schiicking' s Report on Territorial Waters, proposed fixing
the breadth of thy: utter at twelve miles, basing his arguments
on the conclusions reached by Admiral Almeida d'E9a regarding the
species living or to be found in the graters covering the shelf.72
-ie1 ico and Ar.?entina
Claims to an "Lnicor_tnental Seast: r ~._
These formulations of the ,doctrine of t)ie continental shelf"
as it is generally called have served as a basis for the claims
laid by some States in recent years to an iiepicontinental seat.
These claims must not be confused v,i th others made by the same
and other States with regard to the bed and subsoil of the shelf
or to other submarine to their territory. As will
areas adjacent-
be seen in the next chapter, the great majority of these national
claims did not affect the status of -t-he w&ters covering those
areas outside the territorial sea. The claims whose nature and
scope did affect it are those '"chose object regardless of whether
the term i'epi.contifental sea', was used or not was to establish a
new maritime zone for th'r exclusive exploitation of the living
resources therein. ' Th_e two earliest claims of this kind were
71. Cf. T rritcr ia.l zj a_as Industr ias Maritimas" , in Di-
~lomacia UYZ versi L= ar i=mE='iIat onsuConmitteee of9Experts7f - - 01
See also Professor Summa. ez s
the Progressive Codi.ficai o1l 26.Unte ~notheraA rgentinianh Ca-
annexed to,7oc.. C.t;9.1''1.?6. 19
pi tar_ de Fragata S+/gur do R. ok prof , thed"Argent inthe iangseation
before, in 1916,_ and had sl e
with reference to the continentaltshel'fdadjacentttooris Sub-
country. See Floure t, T ? , ____-----~--
marina (Madrid, 1952), pp?93-91-~
72. See Lea ue of Nations, Do.c. referred to in footnote 25,
pp. 63-65.
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- 514. -
those of Mexico and Argentina. In an amendriient to the Constitu-
tion proposed b:r the 1,iexican Executive it is stated that i4The
waters of the see covering the continental shelf and submarine
terraces .... are also the, nations', while in an Argentinian decree
tithe Epicontinental Sea and the Argentinian Continental Shelf
Two
idation'f 4,
are declared to "belong to the sovereignty of the
other Latin American countries, Panama and Honduras, have made
similar claims seas: being likewise de-
73, the "epicont ~_nental
part of the national domain, in the ',Declaration of Hnti
clared ,ua
Guatemala!', adopted on the found?tion? of the Organization of
Central States ? (ODEC t)_ The idea isalso taken. Couin the fabove-ts,
mentioned resolution XIII of the T _ e e i~paJu
though, as will be seen, expressed in different terms. from those ex-pressi ons of the doctrin~c of the continentall s icon-,
r LThey are the de- ?
other collective not such been claims.
tinent which do i_ot
cision adopted by the Inter-Americ&.n Council of Jurists at its
Second i= rag (Buenos hires, 1953), the position taken bytthe
i c-
_ -er _
Tenth Inter-t'lner i can Conference (Ca_ a cps, l95) and, in parti c
d statement issued ni'
i~Iarch of tine
ular, the conclusion reached an
by the Specialized Conference at Ciudad Tru j il__o
same year.7k
Exclusive urtsdicttons ovenheries_i the coastal
Iceland's t' j-- --
area"
a
The doctrine of the ccr_tinentaJ_ shelf has also served as
uxplottatiorl ~?ri11.Ch, ~^ri.thout
basis for other zone of e_,..c-~usive
J.t the o11 epicontinental
being identical in nature and extent 1?14
fisheries
sea'' , can nonetheless be regarded as versions
ill mind the 5tex elusive jurisdiction over es
r_
i.~
,zone. .~ z have
in the coastal area r T celanc? on the ground that on
the sf cie-imed by r,i ao (csnre f un
platform invaluable L siring banks-and survival of, the
ndswhose tee itali t:ion ? cized the word po l survivntsetoeanoh er
grounds arp fple e" upon
Icelandic people ufeature
of the well-known s of ee~i thex eledi i'or?conslervati osl?ne
its essential ;~u= pose i..~ to prevent a decline
the resources in the area concerned, i?e? t?-Thus, the
in their yield likel % to affect the national economy.
v is established v~;ith a view to conservtn--
elusive hat res on e ins i'ked onalogJ with the
ti on. a sod though it contains a
Lion. In that respe C~ it s
previously discu,_ , o
ctple of abstention' former conservation system
new element ds.stingui sling it fro.ll the f s'conserva-
L~ -,- t ?
ti opulation
rocedure ; namely in t^rhi ch the concep
~`-~e ,` ; nteres is of the p
P-
on t is linked with thr}iseli 1k onaturally means that the latter
of the coastal al State.
fuller statement of these' claims, see below,pp ?
73. For a eteea.
r= ration of the position of the inter- see
wrap conference on-the subject,
74. For a fuller disc- s~
American organ=izations
below, pp. , et se ?
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-55-
considerations can also affect the interpretation of the aims of
conservation in the technical and scientific sense of the terl,
and that the, .conservation `measures a are adopted more with a view
to the socio-economic factors involved.
This is what seems to emerge from the observations of st e Gov-
ernment of i celand on the lnternC~ oivin of the seas
draft on the co 1sOrVat1On of tale g resources regarding sa the
These observations contain the following statement
adoption of measures of con ervati'n ?bl' international agreee ent-
iif that is note >>iJ:,sible the coa~chlmeState asuresUUUstanottdiscrimina.te
sesy measures uuL, iZtcr u-ia, . reasona against foreign yiahermen. This system is
coustalbjurisdiction
to the area beyond the limits of excl_u
over fisheries, provided the interests ofhejrjcor seal State limitins ithn
such jurisdiction are reasanably protected. fcan of course
of exclusive coastal jurisdiction fordgn fishing ish ngscens of add
be prohibited by the coastal State."
that such addi is
~'^hi.s is an incontrovertible fact. YDL^cal~sti.c :iound~.ti.on. ~-1hat
are fixed at e ,G,. three miles has no ~-
the coastal Sty to of its
is called for is an appreciation by
ovin needs up to a reasonable distance. x?75
1a t e zone`~Its economic and social bases
The 200-mile '-1L
a.
rrt?'iarj,tlile zone" to see
Let us f in_ally consider the 200-mile
socio-economic bases and its exact
,,rha1; are its scient~.fic and it should be clear
first of all, hoeev;er,
juridical nature. ~,
that we are referring; solely to the Position taken by the three o - r Latin nlmerica, more
~~rri ch
countries of the Sout:I-Pacif~.cr1sca.boar ..?c. -
particularly r]J s as :Mated, in the ar ~ti1g k~ubonstD1952rand the
they signed at Santiago de Chile on
$-~.. On other antecedents akin
__ the Cornmissionss
o Icelar_d s L ~Q9/~~dd.2 ~.. pp.~ Y
75 ? Cf. Doc. d1 s ? ~ See its observations on
cj e'~ se and Th Icelandic
i, Doc d~ r ~-
1951 drafts), Doc. ",/2456 L ? Len~ordndu-?i submitted
Effort- foris'_er4 es 'Co n= va oVC,rru~~ent of Iceland, 1955
Europe by the The d, 1955
to 't e CAdditionaa_ i-ie1uorarid1 of October 1955
and the 1.ddi ,r grit over Adjacent Seas",
tPresident~ al Proclamation s}^of 0-Vcalso to the continental
s January
, establishes ehanother zone of exclusiveneoplaitation
~.o ~ ~she. ~ area cozfered by t;he lines
with shelf
respect ect ~-
tion fixed by said Proclas11ation.
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-56-
Protocol of Accession to the Declaration signed by the same
countries at Quito on 5 0 tober 1955 to which the Government of
Costa Rica also adhered. l? We are not referring, of course, to
the clause in the constitution of El Salvador, which also speaks.
of an `7 adjacent sea up to a distance of 200 nautical miles",
this relates to the territorial sea proper and not to an exten-
sion of competence of the type under consideration. Nor shall
we study for the- moment the aspects of the ",maritime, zone f, related
to the continental shelf or other submarine area;, since, as will
be seen in the next chapter, the appropriation of the bed and sub-
soil of these areas in the case of this zone is rather a conse-
quence of the rights proclaimed over this broad atretoh of sea
than direct object of the claim.
The economic and social considerations underlying the claim
to the 20C-mile maritime zone are outlined in the Preamble to
the Santiago Declaration,77 according to which: "Governments
are under an obligation to secure the necessary conditions of
subsistence for their peoples provide and to provide them with the means
for their economic development. Consequently, it is their duty
to provide for the conservation and protection of their :natural
resources and to regulate the exhloitat:Lon of those resources
to the best advantage of their respective .countries.... It is
therefore also their dutyr to prevent exploitation of the said
resources outside their jurisdiction from heopardizi ng the e Lis-
tence , integrity and conservation of tlh is wealth to the detriment
of nations hhi ch, o.~ri ng to their geographical positions possess
in their seas irreplaceable sources of subsistence and vital
economic resources.',-,78
75. Regarding the attitude of inter--American organizations and
conferences to this extension of cormpetence, see below,
p. 124 et secy.
77. The text of the Santiago Declaration was published in the
Reyi sta Peruana de Derecho In4:;ernaciona_i '(1954) , vol.1+,
p. 101+. hn English trans i.tI an is to be found i n the Year--
book of the International Law Commission, 1956, Vol.I,pp.
169-1-70.
78. The Peruvian Decree of 1 August 191+7 m~enti ons, inter ilia,
that :The protection, conservation and reg- lr.tion of the
use of the fishing stocks on which the guan.c birds feed is
also necessary in order to safeguard the source of fertilizer
deposited by them on the islands off the Peruvian coast"
cf . Garcia Sayan, Notas sobre la Soberania i,'-aritima del
1?eru, Lima 1955, i:nnex 1, page 45. See also "El Guano de
Isla Peruano, un Recurso Natural ronovable del iviarsi, state-
i ent by Mr. Erwin Sci-rvweiggor, representative of Peru at
the Specialized Conference of Ciudad Trujillo, Doc. 55.
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-57-58-
In- po ragrph 1 of its operative part, the Declaration refers to
the fact that i?Owi.n_g to the geological and biological factors
d
governing the existence conservation and development of the
' waters flora and fauna in the ,~?:aters which __ wash the coasts of
States Parties to this Declarati oil, the former breadths of the
territorial sea and the contiguous zone are inadequate for the
conservation, development and exploitation of these resources,
to which the coastal States are ent-itled.17 We will see
what these sci er_t-ifi c bases of tho Declaration are, but first
let us consider the other socio-economic considerations not
explicitly referred to in the Santiago Declaration.
iie have, in_ mind in particular the frequent claim that the coun-
tries which have no continental shelf should be compensated by
recognition of other rights ov~.r specific n reas of sea contiguous
During the deliberations of the Third Meet-
to their ter~ritory. During
ing of the Inter- meri can Council o? Jurists, the representative
of Peru, Professor lberto Ulloa, expressed the view' that Joint
_~~.~,
Declaration of the three ~_le_ icar_ re.:ublics of South Pacific
`heenas
seaboard constituted a just rule, in that.... it represents
compensation to those countries which have no continental shelf
There can be no reason in justi ce , a n , in final analysis, every
reason in justice is a moral reason, there can, I repeat, be no
reason in justice why many countries should have a broad sub-
marine zone as a result of prehistoric geological upheavals
j nilp others should _lave none. The idea fo compensat- on is not
the sole basis for the Santiago Declaration but it is one of
the most solid bases vis-a-vis other States and one that cannot
be ignore.d;1.79 The same thesis was length by
L representative of Ecuador at the Specialized
Ciudad Trujillo. in this opinion "'Ne taks the fair, human and
a bsolutely just v--Lew that were nations to take the limit of
their continental or insular terraces, as the case may be, as
the limit of their territorial sea, many such nations would
find themselves in a position of inf ?3rioritY by comparison to
others, terrace alone is not sufficient to
' since the St create that equality conducive to zr rellbeing. The important
e
thing is not the contour of the, submarine areas but the maritime
resources that will produce that wellbeing. We know full well
that the stocks of fish in _the submarine-areas, to confine our-
selves to them for-the momen V1maytbe abundant cbuti nay alsoebeis
scanty, despite the s.cifl?ti
the richest in fish... But we must elsa admit that there may
be abundant stocks of fish where no submarine terrace exists
and scanty stocks on extensive and yell--defined terraces...
In the case of t le countries of the west coast of South America,
79. Sea Records and Documents of the" Third iVIeeting of the Inter-
American Council of, Jurists, Provisional edition,. Pan-
American Union, t`a.shington, D.C. , 1956; , p.30.
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-5?-
we know that these countries have a narrow continental shelf but
lAllll~ll~ ~JGl1 Cw~.L V.L Vv Vity=i
VL1CA V , Gl V VSIG %7 G111:G V1.,11G , Q IJ1 VRU lilA1 1 Gil V J.
coasts creates one of the most prodigious sources of fish in the
wrrlrl_ _ _ss50
The scientific blaes of the 200-mile "ilariti.me zonei'
The scientific foundation of the Santiago Declaration, also ac-
cording to the informed minion of representatives of the signatory
States, is derived from the concepts of the '*,eco-system's and of
the ssbiomas7. During the Santiago Negotiation on Fishery conser-
vation Problems, conducted by the three member States of the
Permanent Co:nmission for the Exploitation and Conservation of
the Maritime .esources of the South Pacific tog ether with the
United States, the former maintained the following: "$l
311odern biologists and ecologists have called the sum of
non-biotic factors, mainly climatological and hydrological,
which are capable of creating a particular situation, that
will- permit an aggregate of vegetable and animal beings to
live within it, and 'teco-systems .
Within an ' eco-system' many living comtiiunities, including
man, may co-exist in a perfect chain, or succession, consti-
tuting a whole ,which is called a 'bioma'. Therefore the term
'bioma' designates the whole of the complex of living commu-
nities of a region, which under the influence of the climate
and in the course of centuries, becomes constantly more homo-
geneous, until, in its final phase, it becomes a definite
type.
An ' e co?-system' may sust-ain one or more ' bi omas' , but
each one of these will maintain its unity within the system,
except in t,-e areas of. contact where there may be an inter-
mixing. For example, in the region of influence of the
Peruvian Current, it is admitted that within the existing
' eco-system'. there are implanted, together with the central
Peruvian ' bioma'-, a warm water ' bioma' , a warm water 'bioma
belonging to Ecuador, and a cold water 'bioma'- belonging to
the the ~1;orth--Chiloa.n_ region. The ,res.tern limits of these
'bioma' are variable, and they are wider opposite the
80. "La Plat~7,:forma Submarina: Falso Limite i~iaritimo de los Es-
dos", Technical study subniitt.ed by the representative of
.Ecuador to the .fifth meeting of Committee I, Doc. 69, p.8
81. Cf. Santiago Negotiation on Fishery Conservation Problems,
Department of State, Doc. No. 2, p. 31
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- 60 -
Chilean coast, and narrower opposite Ecuador, but the mean
width iha.y be taken to be about 200 miles .`1
11From the above we infer that a perfect unity and inter-
dependence exists between the comxr~unities that live in the
sea, which supports their life, and the coastal population
which requires both to survive.
This is, in short, the concept- of biological unity from
which is derived, in the scientific field, the preferential
right of coastal countries. According to this concept, the
human population of the coast forms part of the biological
chain which originates in the adjoining sea, and which
extends from the microscopic vegetable and animal life
(phycoplank-ton and zooplankton) to the higher mammals,
among which we count man_.,,
The same ideas were put f oroTear cJ at t'le late r-. rye -ri can Specialized
Conference of Ciudad Trujillo in con__leXion with the juridical
position of the signatories of the Santiago Declaration.82
Juridical nature of tl_e maritime zone and objects of the
Sant Eo Declaratien
After the socio-economic considerations of the Preamble and
the reference to the geological and biological factors on which
it is also based, the Santiago Declaration goes on to state that:
The Governments of Chyle, Ecuador and Peru accordingly proclaim,
as a principle of their international maritime policy, the ex-
clusive sovereignty 0 and 355, respectively) .
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This change was made in response to one of the comments received
from governments, which us itself based on the Report of the Rome
Conference.66 In making it the Commission had specially in mind
the case where nationals of different States exploit the same
stock of fish. In general, in its opinion, a State should not be
entitled to invoke the Article and request the opening of negotia-
tions to initiate the arbitral procedure, when other States,
though fishing in the same area, are exploiting another ,stock of
fish. It may, however, happen that the conservation measures which
ap-
one of the States to take are- thearted by fishing methods
plied by the nationals of the other States, even though they are
exploiting another stock of fish. In that case, the Commission
adds in its coinentary, the right to ask for the opening of ne-
gotiations as provided in the article cannot be denied. The bom-
mentary also explains that for the article to be invoked, it will
not be sufficient for the nationals of the States to engage oc-
casionally in fishing an area where the nationals of other States
also fish, because the article only covers the case where the na-
tionals of two or more States are re:Lularly enga ed in fishing
in the same area. Should the nationals of a State only fish there
casually, that State cannot invoke article 52, though it can
invoke article 56 if it has a speci,al interest in conserving the
resources of - he area in question.07
Applicability of the measures adopted by third States
In the case of article 53, too, no substantial change was made
the eighth session to the text approved in 1955. However, in the
system of the Commission' s original draft (1953)-and in that of
the proposal we submitted at the seventh session, the situation
envisaged in the article related solely to the applicability of
collective.measures and, even in that case, the nationals of other
States wishing-to engage in fishing in the areas in which the
measures apply, would not be obliged to comply with them as long
as they not been declared applicable to those newly taking part
in the fishing by the competent international authority provided
for in each of the drafts. The situation now is rather different.
Not only collective measures (article 52) will apply to newcomers
but also those which the State may adopt unilaterally to regulate
fishing by its own nationals (article 51). Thus the Commission
placed the latter State in a situation potentially similar to that
of the coastal State acting it~iaccordance
ticle 51 deals withprovisions
case
article 55, despite the fact
66. See the comments of the United States Government in Doc.
-h/, CN.4/99, p.10 et seg., and Report of the ,Rome Conference
referred to in' footnote 22, paragraph 55.
67. Cf. Report of the Commission, Commentary on Article 52.
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-- 165
of a State which may or may not be coastal. When it is not a
coastal State however, is there any justification for the analogy
in favour of States which cannot claim the special interest which
only the coastal State is acknowledged to have for such purposes?
Similarly it does not appear to be fully justifiable for the c.ol'-
'lective measures envisaged in article 52 to be applied automatic-
ally to nationals States which had no say in their adoption or
which refuse to accept them once they have been adopted. If the
States in question are not coastal States which have acted in
accordance with the relevant provisions of the draft, we cannot
see how validity erga omnes can be attributed tho the measures
adopted by two- or more States.
In its commentary on the article under consideration, the Corn-
mission says no more on this point than that it seems to be
indicated that newcomers should comply with the regulations in
force in the waters where they wish to engage in fishing??, adding
that "if the States of which the newcomers are nationals are not.
prepared to apDly the regulations as they stand, they can open
negotiations for their amendment with the States concerned. Failing
agreement, the procedure laid down in article 57 will have to be
followed." Despite all this, it seems more in accordance with
the principle of the freedom of fishing in the high seas to make,
the validity and entry into force of the measures in question
with respect to newcomers subject to the arbitral decision -re-
ferred to in the article. For there can be no doubt, as the Rome
Conference pointed out, that S?failure of all States concerned to
participate in the preparation, negotiation and establishment of
international fishery conservation inipeds or limits. progress
achieving the objectives of conservations. But this considerat-Lon,
as the Conference also .dmitted refers rather to States S?engaged
in substantial exploitation of the stocks?. 6d The question having
been raised again at its eighth session, the Commission agreed tn,
add to the Comentary on article 53 an explanation to the 'effect
that the regulations should be ap_~licable to newcomers only if'
they engage in fishing on a scale which would substantially effect
the stock in question. Any dispute regarding the applicability
= of the regulations shall be submitted for decision in accordance
with article 57.'769
68. See p.... above
69. Cf. Report ofthe Commission, paragraph (1) (2) of the com-
mentary. In connexion with this article, the Commission con-
sidered a proposal based on the S4principle of abstention" to
which we referred when studying the '-?zones of exclusive exploi-
h
is
tation'-?. The Cor~Lmission's commentary and decision on t
proposal, as on. that for the establishment of an "exclusive
fishing zone'-?.are given on p. 35 of the Report. On this point
see also section 10 of Chapter II.
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Nature and scope of the "special interest" of the coastal State
Let us now look at the provisions dealing with the rights which
the draft accords the coastal State on the strength of its special
interest in the conservation of the living resources of the high
seas contiguous to its territorial sea. It is these provisions,
to be found in articles 54 and 55 of the text under consideration,
which reveal the radical change that took place in the position of
the Commission after the Rome Conference. The first innovation
to be observed in the drafts approved in 1955 and 1956 relates
to the actual concept of the "special interest" of the coastal
State. As will be recalled, the provision in the original draft
(1953), corresponding tb the present article'54 made. recognition
of the right of the coastal'State in the case covered by the
article subject to the purely mathematical criterion of a distance
of 100 miles. At the seventy' session (1955) this limit was
abandoned and a more rational and objective formula adopted in
line with the concepts enunciated by the Rome Conference. Thus,
instaed of recognizing the rights of the coastal State described
in articles 54. and 55 in an area of predetermined breadth, the
Commission recognized both rights on the strength of that State's
'special interest in the maintanance of the productivity of the
living resources in an area of the high seas adjacent to its
territorial sea". -As it pointed out in its 1955 report, "the
Commission did not deem it advisable to adopt a fixed limit, which
might prove in practice to be either too wide, or in particular
cases, too narrow".70
At its eighth session, the Commission introduced certain formal
changes, as may be seen by comparing the text of the two drafts
which we have reproduced. One consisted in defining the special
interest of the coastal 'State only in the first of 'the two articles
under consideration., thereby avoiding unnecessary repetition of
the concept. The other lay in using the phrase, "a coastal State
has ealcinterest.',.", ,,T7 instead of,
195544 draft. ' Thisaseconding
a speci , used
change is in deference to the. view expressed by some members of
the Commission that the State, by the mere fact of being a
coastal State, possessed such a special interest. As the Com-
mission observes in its report, this idea was already expressed
in the preamble to the articles approved at the previous. session,
but the majority was agreed to incorporate it in the 'actual text
of the draft. The same commentary adds that the' ' special' character
of the interest of the coastal State should be interpreted in
the sense that the interest exists by reason of the sole fact of
the geographical situation. However, the Commission does not
wish to imply that the 'special interest' of the coastal,State
should take precedence per se over the interests of the other
70. 'Cf. 19.55 Report (Doc.A/2934) , poll
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States concerned-71 As may be seen, the situation is the same as
that explained with reference to the Resolution of the Specialized
Conference of Ciudad Trujillo; the coastal State, in principle,
always has a special interest in maintaining the productivity of
the resources of the high seas near to its coast, but the nature
and-scope of that interest may vary according to the case and
circumstar_ces.T}it seems to be the most reasonable and fair cri-
terion, bearing in mind that the special interest which the coastal
State is -acknowledged to have does not to need be exclusive and
overriding in order to merit and obtain suitable and effective
legal protection.
The right to unilateral on circums'~ances and. conditions of
its exe-rcic
Otherwise article 5LL diffetrs in no element from the 1953 draft,
except of course in the procedural clause contained in paragraph
3 which, like that in the other articles, will be considered later.
The same is not true of article 55, however, which reproduces
the form and substance oi' the ideas enunciated in articles 4. and
1-4 Lt d to i she Committee at its
Lion of the righ' to a opL
conservation measures which would be valid as tonother States,
Ai of draft.
u
s -
5 of the proposal which tre su mi e seventh session (1955). It is not difficult to see why recogni-
L d - in areas of the high seas unilateral
s
constitutes the key point of the wuo_e isc
This was undoubtedly the fundamental element i n the new system
we were goirgto propose for the conservation of the resources
of the sea. In this connexion, the Commission was mainly con-
cerned with three consideration. First, the recognition of the
unilateral action of the coastal State appeared to be the sole
possible means of remedying the loopholes and inadequacies of the
traditional system of international cc-operation. It was an objec-
tive and practical device amply ssuported by the experience 'of
more than half a century of effort to. achieve effective collec6..?
?ive regulation. Quite apart from thiscoasi deratio , theprrecogni-
tion of this power of the coastal State justified protec-
tion of the special interest' of that State in maintaining the
ources of the high seas near-to its
th
e res
productivity of
coast was to be ensured. This second consideration, in turn, was
f the Rome Co?iference on that point.
based on the conclas.ons Only, one problem in some ways the mo important of all, still
remained to be solved, namely the threatt to the freedom of fish-
ing in the high seas which permission to certain States to regulate
it unilateral might entail.
But even on this last point the difficulties were not insuper-
able. In the first place, the right was not going to be recognized
Su:(raar ointroduction
71. Cf. 1956 Report, paragraph
3lst meeting
articles 5O 59. See Y Record of the
(Doc.r,/CN.I-/SR.3 51)
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at ?
just as iV was. Its recognition would depend on the existence of
certain circumstances and its exercise would be subject to-a com-
bination of specific conditions. It should be sufficient to
establish what those circumsntances and conditions were, as is
done in the first two paragraphs of. the existing article 55 and,
were there still reason to fear that the conservation measure's
the coastal State might adopt in the. exercise of,this right would
not meet the requirements essential for its validity, an additional
safeguard could still be devised. This new safeguard was arbitra-
tion or, rather, the obligation of the coastal State to submit
this mode of eettlement any measures to which the other States
concerned objected. This-safeguard was also' included in the last
paragraph of the article. In view of all these. considerations,
the Commission considered not only that recognition-of this special.
right of the coastal State was essential to the new juridical
regime that it was evolving but that it did not deprive the other.
States of the necessary safeguards for their interests and rights
in the exploitation and conservation of the living resources of
the high sea,-.72
In its 1956?:report, the Commission explains when the coastal
State is entitled to take unilateral action and when it may exercas/
the right recognized in article 54. The criterion for distinguish-
ing between these two situations is the degree of need to take con-
servation measures. if there is an urgent need, the coastal State
may act in accordance with the provisions of article 55: If, on
the other hand, the need for conservation is not urgent, unilater-
al action will be uncalled for and the coastal State can only
exercise the right accordedit by article 54, namely, to take part
on an equal footing in any system of research and regulation
established for conservation purposes in-the areas adjacent to its
territorial sea. At .its, eighth session, the Commission also
envisaged the case, fairly often met with in practice; of areas of
the high seas adjacent to more than one coastal State. To solve
difficulties arising in such cases, the Commission states iii its
commentary that prior agreement between the various States will
be required.73 This solution is the logical one and, all events,
the only one that seems possible in such a case. Where there is
both diversity and simultanei ty 'of special interests, none of the
coastal States can claim exclusively for itself the right conferred
on all under article 55.
Case of a non-coastal with a special interest in conservation
The last substantive provision of the draft article 56, deals
72. Cf 1955 Report (Doc.A/2934) , p.12. See also- paragraphs (11).
and(12) of the introduction to articles 50-59.
73. Cf. 1956 report, paragraphs (2) and (3) of.the commentary on
article 55.
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with a. siti.tation not envisaged in any of the drafts prior to 1955,
namely.the case of States which, though its nationals are not
engaged in fishing 'sin an area of the high seas not adjacent to
its coast", has, a special interest in the conservation of the re-
sources of that area: According to the Conuris,sion's commentary
"this case may arise, for instance, if the exhaustion of the re-
s.our. ces ? of the sea in the area. would affect the results of fish-
ing in another area t,ihere the nationals of the State' concerned do
engage in fishinr;,". Yet another case was thought of during the
discussion of this article, namely, that of a State which, like-
wise not a coastal State, has a special interest in maintaining
the productivity of particular resources not exploited by its
nationals but whose exploitation is an important factor for its
economy or for the f eeding of its population. The draft accords
this new category of interested the "right to request those States
whose nationals do exploit the resources to take the necessary
conservation measures and also urcvides a procedure for making
its request effective. As the "special interest" of this State
cannot be put on the same footing as that of the coastal State,the
draft naturally does not confer the same rights on both categories
of State. 74
The system of compulsory arbitration in the draft
The remaining, provisions of the draft deal with the settlement
of disagreements between States in connexion with the adoption or
application of conservation measures. The first (article 57,
paragraph 1) stipulates that any disagreements under article 52,
53, 54, 55 and 56 shall, at the request of any of the parties, be
settled by an arbitral commission of seven members, unless the
parties agree to seek a solution by another method of settlement.
Accordingly the draft, though authorizing the Parties to settle
their differences by any other mutually acceptable method or pro-
ulsory arbitration in the
for cui
id
p
es
cedure of settlement, prov
event of their being able to agree on that point. At its eighth
session, some iiiombers of the Commission opposed .the system of the
d or
itt
e
draft, proposing that all the procedural clauses be om
at least that a general obligation be established to seek peaceful
settlement in the manner provided for in Article 33 of the-Charter
of the United Nations. The Commission decided, however, to keep
the system, considering that ""in proposing for States rights over
the high seas going beyond' existing international law, the Corn-
not rely on the due functioning of the general rules
ion could
i
.
m
ss
for the peaceful settlement of disputes, but would have to create
74. Ibid., paragraph (1) of the commentary on the Article.
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effective safeguards for the settlement of disputes by an impartial
r safeguards . l5
The method of settlement established by article 57 is, further-
more, not one compulsory arbitration pure and simple. If one of
the Parties fails to make the appropriate nominations for consti-
tuting the arbitral commission within a period of three months
from the date of the request for arbitration, the article provides
for a procedure to enable all or part of that commission to be,
constituted without the co-operation of the parties. Thus, the
draft has adopted the arbitration system which was first introduced
by the General Act for the Pacific of International Disputes,
signed at Geneva in 1928, and which was later incorporated in the
American Treaty on Pacific Settlement (Pact of Bogota)-and numerous
recent-bilateral agreements. According to this system, the consti-
tution, working and award of the arbitral body do not depend on
the agreement of the parties, as in the traditional system. In
reality, as the practice of this institution has amply shown, this
is the best way of ensuring the efficacy of the obligation to
resort to arbitration. That does not, of course, mean that the
system should be applied in all cases with equal rigidity. Inter-
national disputes being supremely varied in nature, it would not
be logical or practical to subject them all to the same procedure.
The procedure proposed by the Commission for sttling the disputes
envisaged in the draft is fully justified in view of the fact that
the disputes involved are in connexion with the resources of the
sea whose conservation comes under the exclusive competence of no
particular State.
Article 57 contenmlates two different situations in connention
with the constitution of the arbitral commission: (a) that of a
dispute between two States or a dispute between several States
divided into two opposing groups, each group being homogeneous as
regards the interests to be. safeguarded; and (b) the case of sevcra.-
parties to-'the dispute divided.into more than two groups, each
with different interests. .s the Commission points out in its
report, the first case will be the more frequent. If, on either
side, there are several States party es to the dispute, they may
join together and act as one party in regard to the appointment
of arbitratorts. in that case, there is no need to depart from
the usual methods in forming the arbitral commission. Each State,
or, each group of States, will appoint two arbitrators, only one of
whom may be a national of the State or one of the States appointing
75. !bid., para_;raphs. (17) and (18) of the introduction to articles
50-59. See also the discussion on the subject in the Summary
Records of the 352nd and 353 rd Meetings (Docs.A/CN.4?SR.352
and 353, respectively) ctivelry) .
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it. Failing agreement. between the parties, the other three members
of the commission will be appointed by the Secretary-General of the
United Nations, after consultation with the President of the Inter-
national Court of Justice and the Director-General of the United
Nations Food and Agriculture Organization, from nationals of States
not parties to the dispute. In the second case the above method
cannot be applied and recourse must be had to an impartial authority
which will apoint the whole arbitral commission. In this case too'
the most appropriate authority seems to be the Secretary-General of
lrhe-United Nations, acting after consultation with the two authori-
ties previously mentioned. In view of the-diversity of the inter-
ests involved, the number of arbitrators will have to be fairly
large. Hence the International Law Commission provides for an
arbitral conuriission of seven members to be appointed from amongst
properly qualified persons, experts in legal, administrative or
scientific matters appertaining to fisheries, depending upon the
nature of the dispute.76 Such were the considerations underlying
the changes made at the eight session in the corresponding article
approved by the Commission in 1955.
Criteria to be applied in settling various die utes
:.rticle 58 covers two distinct questions which must be considered
separately. The first is merely that of the criteria to be applied
by the arbitral commission in settling the various disputes re-
ferred to it. When the dispute involves unilateral mesaures
adopted by the coastal State, the commission will apply the cri-
teria listed in article 55, paragraph 2. This follows logically
from that provision of the draft, since such measures will be
valid as to other States only if they are in accordance with those
criteria. Ho:wrever, in view of the different types of disputes 'en-
visaged in tho other articles of the draft, those criteria, cannot
of course.wholly apply in?every other case. Accordingly; the
arbitral commission will have to be left some. discretion as to the
way of applying them-in the light of the peculiar circumstances of
each case. In.its 1956 report, the Commission found it advisable
to formulate certain guiding principles in that connection which
indicate the reasons why the criteria enunciated in article 55
cannot be applied in the same manner.
In all cases it is for the arbitral cormisssion to determine: (a)
whether scientific findings demostrate the necessity of conserva-
tion measures to make possible the- optimum sustainable productivity
of the stock or stocks of fish; (b) whether the measures do not
discriminate against foreign fishermen. In the case of article 52,
53, 54 and 55, the arbitral? commission has 'to determine: whether
the specific measures.are based on scientific findings and ap-
propriate for the purpose. In determining. appropriateness, the
elements of effectiveness and practicability are to be considered
as well as the relation between the expected benefits, in terms
76. !bid. , commentary on Article- 57.
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of maintained and increased productivity, and the cost of applica-
tion and enforcement of the proposed measures. In the case of
article 56, the criteria of the previous paragraph will be slightly
different, as the State requesting the fishing State to thke ne-
cessary measures of conservation would be a non adjc.cent and non
fishing State. Such a State would be concerned only with the
continued productivity of the resources. Therefore, the matter to
be determined would be not whether the measures are appropriate
for the ppurpose but the adeq_cy of the overall conservation pro-
gramme.7"l Thus paragraph 1 of article 58 is not to be regarded
as designed-to 'subject the conservation measures unilaterally
adopted by a coastal State to a special and stricter regime. Indeed
the intention behind the article is precisely to subject those
measures adopted by agreement among States to similar conditions
and requirements, in view of the fact that the end pursued in all
cases is fundamentally the same.
Suspension of the measures in dispute
In its second paragraph, article 58 specifies that the arbitral
commission may decide that pending its award the measures in
dispute shall not be applied. .ccordinr to article 53, the measures
adopted by a State to regulate fishing by its nationals (article
51) and those adopted by two or more States (article 52) shall be
applicable to nationals of third States who wish to engage fish-
ing in the same area. In the same way, the measures adopted unila-
terally by a coastal State shall remain in force until the arbitral
decision in announced. The first case has already been referred
to, Let us i.ow consider the second provision which in the period
between the Commission's two sessions was criticized by certain
governments. The Commission nevertheless considered the continua-
tion in force of such unilateral measures 'to be "essential". "If
objections by another State to the unilateral regulations of the
coastal State sufficed to suspend their application, the whole
purpose of the article (5-5), which is to give the coastal State
right to take measures in case of urgent need, would be frustrated.."
To digress somewhat this article is not merely designed to'take
the.special interest of the coastal State, it also safeguards the
general interest of the international community by-,'making it
possible to adopt conservation measures immediatly in case of
urgent need. In the Commission's opinion, "the power-given to
the arbitral commission under article 58, paragraph 2, to suspend
application pending its award seems an adequate safeguard against
abuse.,,78 This power is base on the procedural principle that
courts and certain administrative bodies may hold up the applica-
tion of a measure in dispute until the question of its validity
77. Ibid., commentary on ~*:rticle 55.
78. Ibid., paragraph ('+) of the commentary on Article 55.
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would make arbitrary use of this power,-either to suspend applica-
tion of the measures if their adoption has been justified, or to
allow them to continue in force if there was no really must urgent
need for them to be adopted, or if the coastal State did not act
in accordance with the other requirements of article 55.
is decided. In the case with which we are concerned, since the
unilateral measures can only be adopted in situations where
"scientific evidence shows that there is an urgent need"-for them,
it would be unreasonable to assume that the arbitral commission
Nature and scope of the decisions of the arbitral commission
The last article of this draft, like that in the draft of the
}previous year, deals with the nature and scope of the decisions
that the arbitral commission may take. At its eighth session
(1956), the Commission went more thoroughly into this point. As
was clearly brought out during the discussion, article 59, in the
first place, establishes that the arbitral commission's decisions
shall be binding only upon the parties to a dispute; they will
have no effect erga omnes. Secondly, the arbitral commission may,
in addition to giving a ruling on the points in dispute, issue
recommendations to the parties on the conservation measures in
considers appropriate. Such recommendations will not, however,
be binding on the parties unless they have requested the commission
to make them, but they will merit the closest atten_tion.79 The
value of this last provision of article 59 must not be underesti-
mated. Although the recommendations that the arbitral commission
may make to the parties are not strictly binding upon them, they
are bound to be of the greatest use to the parties, and to all
States when conservation measures have to be taken, unilaterally
or collectively, in fishing areas or with regard to stocks of fish,
provided that the recommendations are applicable.
Idea and basic purpose of the international Law Commission's draft
A more detailed account of the draft prepared by the Interna-
tional Law Commission at its seventh and eighth sessions hardly-
seems necessary. The account already given, combined with that
in the previous section, provides sufficient material for a
proper appreciation of the more outstanding features of the system
which the draft establishes for the conservation of the living
resources of the sea. We would however like to emphasis one
element which-seems of primary importance. It is plain to see
that the fundamental idea of the draft is the diversity of
79. Ibid., commentary on Article 59. See also Summary Record
of the 355th: Meeting (Doc. l /CN.4JSR.355)
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legitimate interests at the present day which merit recognition
by international law; and that its sole purpose is to ensure
adequate and effective legal protection of all those interests.,
As will emerge from' the next chatper, this idea and this purpose
dominate the legal regime of the "sea in-the present state of its
development.
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CHAPTER V
CONCLUSION: THE NEW INTERNATIONAL LAW OF THE SEA
The foregoing study has brought out the profound transformation
that the international law of the sea has undergone as a result
of technical progress and its economic and social repercussions.
This transformation has, of necessity, detracted from the .absolute
character of the fundamental concepts and principles of the regime
of the high seas. What we are faced with here is not merely the
emergence of new rules of law within the framework of the old
system; it is rather the fact that the traditional concepts and
principles are undergoing a substantial evolution. By way of con-
clusion, let us recapitulate the problems now raised by the use
and conservation of the resources of the sea and the solutions
available in the present state of international law.
26. THE NEW CONCEPT OF THE "SPECIAL INTEREST" OF THE COASTAL
STATE
The special interest of the coastal State under traditional
international law
Strictly speaking, traditional international law did not recog-
nize any interest of the coastal State distinct from that posses-
sed by the other States in the use and conservation of the wealth
of the sea. Although the coastal State could exercise exclusive
rights for both purposes.in its territorial waters, on their bed
and in their subsoil, the recognition of such rights was not
specifically designed to ensure special protection for the inter-
-est that the said State might have in the wealth in the immediate
neighbourhood of its coasts. This-maritime extension-of sover-
eignty. But, apart from these rights, it was not admitted that
the coastal State could have a "special interest" in the use and
conservation of the resources to be found in areas of the high
'seas contiguous to its territorial sea, nor, accordingly., that
it must be-acknowledged to have greater rights than the other
States whose nationals exploited those resources. Thus, inter-
national law recognized only one category of "interested State".
viz., that whose nationals were engated in exploiting the marine
wealth. And it recognized only one right enjoyed equally by all,
namely, freely to exploit that wealth, subject to the limitations
that each imposed on its nationals'or that the States agreed upon
among themselves.
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The new concepts of-the "special interest" and its two main forms
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of expression in contemporary law
The situation,-in present day international law has changed con-
siderably, and in some respects radically; for instance, with to
the natural resources of the sea bed and subsoil of the continental
and insular shelves and-other submarine areas. The fact of there
being "a geographical continuity and physical unity between the
insular and continental territory of each State and its respective
submarine shelf, which forms a geographic unit with the adjoining
land", as the Caracas Conference put it, together with other con-
siderations of an economic kind, has led to the recognition of
the exclusive right of the coastal. State to use and benefit from
those resources. This, as will be seen, is a radical change. Not
only has an extension of the coastal Statets competence been
admitted beyond the bounds of the territorial sea but, what is
more, the rights accorded it exclude the ocher States from the
use of and benefit from the wealth to be found or discovered in
the sea-bed and subsoil of the submarine areas adjacent to its
territory.
This has 'opened the way for a tendency to recognize other special
rights, though of different nature and scope, but also in areas of
the high seas, for the purpose of conservation of other maritime
resources. Recognition of these rights is based on similar con-
sideration: the ",special interest" of the coastal State in main-
taining the productivity of the living resources of the high seas
near to its coasts. This concept, which represents the great
contribution of the Rome Conference to the definition of the spec?
interests of the coastal State, has not only provided a basis for
the rights that States is acknowledged to have but has also
enabled their content and scope to be defined. But the point to
be made at the moment is'not the specialized and limited nature
of this other extension of State competence but the fact that
the existence has been admitted of a distinct category within
the traditional concept of the "interested State", namely, that
of coastal States with a "special interest" in maintaining the
productivity of the living resources to be found beyond the bounds
of their territorial seas.
Other forms of expression of this concept
These, then, are the two main forms of expression of the new
concept of the "special interest" of the coastal State. But'the
rights to which we have referred are not the only ones that this
State enjoys or may'enjoy in the new legal system in order to
protect its interest intdie use and conservation of the resources
of the sea near to its coast. As will be recalled, when the con-
figuration of its territory permits, the coastal State is not
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bound to follow its coastline when tracing the baseline of its
territorial sea and may declare the stretches of sea between its
coast and the straight baselines to be "internal waters". The
consequences of this system are obvious as far as the right to
use the resources to be found in those waters in concerned. And
the position is the same if, in certain circumstances, the State
is acknowledged to have the right to the exclusive exploitation
of the living resources in certain areas of sea, or of certain
particular species, outside its internal and territorial waters.
27. THE PROTECTION OF THE "GENERAL INTEREST" UNDER THE NEW LEGAL
ORDER
The "general interest" also an essential object of legal protean-.
tion
Now neither the recognition of the special interests.of the
coastal State nor the forms of legal protection which are coming
to be accepted has substantially affected the interest of the
international community in the use and conservation of the wealth
of the sea. On the contrary, protection of the "general interest"
is an equally fundamental purpose of the new legal order which
is coming into being. The extensions of competence of the coastal
State which are now coming to be recognized have not deprived the
other States of the various rights of use and exploitation they
possess under the principle of the freedom of the seas. As will
have been observed, concurrently with the recognition of these
extensions of competence, the necessary safeguards have been pro-
vided for the free use of and benefit. from the sea both as a
source of wealth and as an international highway.
Safeguards for the general interest in the system applying to
the submarine areas
This statement is true even with regard to the right reserved
by the coastal State to explore and exploit the natural resources
of the submarine areas adjacent to its territory. Undoubted) r,
this exclusion of the other States is, strictly speaking, more
apparent than real,'since international law already admitted the
validity of the national claims which had been made with respect
to certain resources beyond the bounds of the territorial sea.
The only difference really is that occupati.on,is no longer a con-
dition sine qua non of this right. For the rest, recognition of
the coastal State's exclusive right to the use and exploitation of
these resources has not affected the regime of the high seas ap-
plicable to the waters over the submarine area in qubstion.
Though the exploration or exploaation of these areas may at some
time involve some interference with navigation or fishing, it can
in no case abolish these two freedoms of the sea or submit their.
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exercise to any restriction whatsoever.
Safeguards for the general interest in the system for the con-
servation of the living resources of the high seas
Nor is the "general interest" affected in its essentials if the
coastal State is accorded special rights-for the conservation of
the living resources in areas of the high seas contiguous to its
territorial sea. For the right to take unilateral conservation
measures is not necessarily incompatible with the freedom of the
other States concerned to use those resources nor with the right
that those States also possess with regard to the adoption and ap"T
plication of such measures. Unilateral action by the coastal
State would not be in order unless it had initiated negotiations
with the other States unless agreement had not been reached within
a reasonable period of time. Even if those conditions were ful-
filled, the unilateral yea sures would not be valid as to those
States unless they fulfil-led certain other requirements. Finally,
should disputes arise between those States and the coastal State
over the measures adopted or applied by the latter, there would
still remain the resort to compulsory arbitration in accordance
with the procedure we have already considered. This all goes to
show that under the new system for the conservation of the living
resources of the sea, the "general interest" would enjoy all the
necessary safeguards to protect it against any arbitrary, unjusti-
fied or unsuitable measures that the coastal State might adopt.
28. THE PROBLEM OF THE BREADTH_ OF THE TERRITORIAL .S:EA
Point of departure for considering and settling this problem
As pointed out when studying the problem now arising in connexion
with the breadth of the territorial sea, any argument or opinion
that might be put forward on the subject would be completely devoid
of foundation if it did not take account of all the interests and
competences which the coastal State is now being recognized as
having or that it has proclaimed for the exploitation or conserva-
tion of the resources of the sea beyond the bounds. of its territo-
rial waters. Furthermore, nobody can fail to realize that the
lack of uniformity evident in present practice and the reluctance
to admit the validity of extensions beyond the traditionally ac-
cepted limits are mainly due to the conflict of interests which has
arisen in connexion with the right to use and conserve the re-
sources to be found in the areas affected by those. extensions. The
y interest in. navigation, and security or other considerations also
weigh in favour or against, as the case may be, a greater breadth
for the territorial sea, but undoubtedly to.a much less degree. It
vri.ll _ accordi ngly much facilitate the solution of this problem of
the breadth of the territorial sea if it is considered in the
light of all the new interests and rights of the coastal State and
of those interests and rights which other States have in the use
of and benefit from the sea.
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In this connexion, the point of departure must logically be as
follows. When the tendency to broaden the. territorial sea first
emerged and developed international law accorde the coastal State
no right in the high seas other than that,of claiming by occupa-
tion certain natural resources of the submarine areas adjacent
to its territory. In the "contiguous zone" its competence was
limited to the right to take steps to prevent or punish infringe-
ments of certain local laws, It was not accorded the right, with
the. nature and scope not attributed to it, of exclusive exploita-
tion of all the resources of the sea-bed and subsoil of the con-
tinental and'insular shelves or of other submarine areas as far as-
the depth of the superjacent waters permits'of their explitation,
nor was its right recognized to take unilateral measures to con-
serve the living resources in areas of the high seas contiguous to
its territorial seg.. i~ccordingly, if the greater breadth which
it is sought to give to the territorial sea is simply- for one of
the other of the above purposes, recognition of these new rights
would enable the coastal State to achieve its ends without any
need to broaden its territorial sea. L_s far as conservation is
concerned, the right accorded the coastal State is admittedly
not of the same nature as that it is acknowledged to have in the
case of a "contiguous zone" in fife proper sense of the term, but,
as we have already seen when there is an urgent need to take
measures for the purpose of conservation the situation is practic-
ally the same.
Recognition of these two new rights solves the problem of course,
only in the t7--o cases to which we have just referred: there still
remains a third case in which the coastal State has a distinct
purpose in extending its territorial sea. We have in mind that
in which its object is to acquire an exclusive right,of use and
exploitation in'respect of the living resources to be found outside
the traditional limits of the territorial sea. In point of fact
this is the only case in which solution of the problem continues
to present serious difficulty, with the aggravating circumstance
that it is possibly the case which arises most frequently in prac-
tice. Even here, however, the difficulties are not *insuperable.T'he
breadth to be assigned to the territorial sea is not a cuestion
coming under the internal and sole jurisdiction of the coastal
State. I-s the International Court of Justice declared in the Inglo-
Norwegian Fisheries case, "I.lthough it is true that the act of
delimitation is necessarily a unilateral act because only the
coastal State is competent to take it, the validity of the delimita-
tion with regard to other States depends upon international law.11
It is this premiss, tb which no one could seriously object, which
provides not only the point of departure for judging the problem in
the situation to which we refer but also the very key to its sjlutaon.
Situations settled'by international practice
international law, in fact, recognizes the legit .imacy of certain
titles and of special circumstances which the. coastal State has
invoked as a justification for extending its territorial sea and
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for that extension to be valid with respect to third States.
'Historic rights'? constitute an indisputable title, as the case of
the, Scandanavian countries shows. The fact that all the States
in the same region have fixed a common limit, with the apparent
acquiescence of others, as has happened in the case of the coastal.
States of the Mediterranean, also appears to be a circumstance or
a title that such States can invoke vis-a=;ris other States. But
there are two other situations concerning which there too,can be no
doubt. One is that of States which have undertaken by treaty
mutually to recognize a certain breadth of the territorial sea. And,
by analogy, no State could object to the breadth fixed by another
for its territorial sea, if it claims an equal or greater breadth
for. its. own.
Criteria for dealing with other situations
When the situation is not one of the above, the validity of an
extension of the territorial sea beyond the traditional limit will
have to be considered in the light of the two main interests in-
volved in the question, i.e. the special interest or needs of the
coastal State an the "general interest'?, particularly when the
latter takes the form of a "acquired right't of third States in the
areas of sea covered by this new extension. As far as the first
interest in concerned, there can be no doubt that the existence
of a national interest or need justifies a claim of this type by
the coastal State. In truth, the "historic rights" which certain
States are now recognized to have as an adqquate title to the
breadth they have given to their territorial sea, or the closing
line drawn for certain bays, originally sprang from nothing else
than special interests or needs of the States concerned. It would
therefore be unjust and illogical to refuse to admit the same
situation in the case of those States which, though they cannot
claim historic titles, can claim to have present interests and
needs which may be vital for their economic development or the
feeding of their pbpulation. In this connexion we would refer
to the considerations put forward with reference to the claims of
certain States to the exclusive exploitation of the living re-'
sources of certain areas of the sea or of certain species beyond
the limit of their territorial waters. If those zones or rights
of exclusive exploitation were recognized, the legitimate interests
of the coastal State could be served without any need to extend
the territorial sea,in-L-n.area in which other rights or obligations
are involved that are quite unrelated to the specific purpose of
the claims.
However, as likewise pointed out-when considering these claims,
their legitimacy and, consequently, their admissib:.lity, must be
conditioned by the existence of the "general interest" in the use
and exploitation of the living resources of the high seas. The
needs of the coastal State cannot be the sole factor deciding a
question in which this ??.ggjeral interest" in normally involved
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and which at times interests and rights of other States are at
stake which are equally or more legitimate than those invoked by
the coastal State. The problem, as can be seen, now becomes much
more complicated but could likewise be solved in accordance with
international law. Once again we find ourselves faced with two
possible cases: one in which there is only the "general interest"
in the area affected by the extension of the territorial sea, and
the other in which "acquired rights" of third States exist in the
area. It is only the First case however that could really give
rise to difficulties. One would have to weigh the two interests
against each other, the "special interest" or the needs of the
coastal State and the "general interest" or the needs of the.
international cort-imunity with regard to the use and exploitation
of the resources to be found in the area of the high seas affected
by the extension This could be done either by taking account of
the circumstances involved in each particular case and appraising
the different needs whose satisfaction is sought, or by fixing a
mimum limit beyond which no extension of the territorial sea
would be valid. T---his limit could be of a general kind to enable
a :smaller one to be fixed which be in accordance with the special
geographical features or established custom of certain areas.
Special position when "historic" fishing rights exist
The second case mentioned naturally does not raise these dif-
ficulties; it is the case of a coastal State which, in extending
its territorial sea beyond the traditional limit, appropriates
areas of the high seas where nationals of a third State have been
regularly engaging in fishing from time immemorial. The latter
State is then in the position of a holder of a "historic right"
of the same kind and validity as that invoked by the coastal States
themselves in extending their territorial sea. This is in fact
an instance of title by prescription, a State having legitimately
acquired a right which the coastal State must respect if it decides
to extend its territorial sea. Or, to put things another way, if
the new "special interest" of the coastal State in an area tradi-
tionally part of the high seas constitutes a legitimate title for
widening its territorial sea, the right invoked by a third State
whose nationals were exploiting the resources of that area con-
sistently, and far earlier must be equally legitimate. As a matter
of fact in such cases the interest and the right of the non-coastal
State may at times be more legitimate than those of the coastal
State itself, as happens, for instance, when the latter's nationals
do not engage at all or in only on a small scale fishing in the
area in question.
Forms and procedures for the settlement of disputes
In a word, the problem of the breadth of the territorial sea,
though complicated, is not impossible to solve. Factors con-
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tributing to its solution at the present time, in the manner and
to the extent we have indicated, are the recognition of the right
of the coastal State with respect to the submarine areas adjacent
to - its, territory and the right which it must be acknowledged to
have for conservation purposes. The only problems remaining to
be settled are the two last-mentioned cases and, in final analysis,
only the first of them. But for its settlement, in the event of
the States concerned not agreeing, expressly or tacitly, on a
solution, there always remains the resort to the means and pro"
cedures established by international law for the pacific settle-
ment cf conflicts of interests between States.
29. ROLES OF THE PRINCIPLE OF THE FREEDOI'MI OF THE SEAS IN
CONTEMPORARY INTERNP T1ONAL LAW
The need to revise the traditional concept of the freedom of the
seas
By way of conclusion to our study it may perhaps be of value to
revert to an observation we made at the beginning of the Introduc-
tion tD the effect that, in the face of the prfound technical and
economic transformation that has taken place in recent times,
certain traditional concepts and principles of the international
law of the sea"will perforce need revising in the light of present
needs and intereststt. As we pointed out at the time, that work
of revision has already begun and it should surely be possible to
carry it through without relinquishing any of the fundamental
postulates of that legal order or depriving any legitimate interest
of proper safeguards. The general recapitulation which we have
made in the foregoing section has provided an opportunity of
confirming both that this work of revision has already been under-
taken and also that it has not proved necessary to relinquish the
postulates on which the legal regime of the sea was based or to
ignore any legitimate interest. This does not however mean that
it will be possible in future to continue to conceive of the
"freedom of the seas" in traditional terms or that the principle
in which it was formulated can continue to play its former
function.
Opinion of Professor Gi del
Professor Gidel, the deepest of contemporary thinkers on the sub-
ject, has observed in this connexion that "freedom of the high
seas was nothing more than - a negation; it was the opposite of
the idea of sovereignty of the high seas... This idea of freedom
of the high sea, although essentially negative, could not fail to
have positive consequences. Directed against exclusive use, it
necessarily develop into the idea of equal use. Opposition to
the establishment of sovereignties over the high seas arises from
a desire to make free use of them oneself. Ships of all nation-
alities have an equal right to make use of the high seas in every
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possible way, but the idea of equal only comes second." In his
view, "the purely negative general concept of freedom of the high
seas which confined each individual fuser' of the high seas to an
attitude of complete abstention as regards all the others, does
not conform to the aspirations of the international community.
Such a concept could, very largely, be adapted to the use of the
sea as a means of communication. It does not fit in with the use
of the sea as a source of wealth." In formulating these remarks,
Gidel was guided by the two-fold consideration that the sea is not
an inexhaustible source of wealth, and that non-interference,
which formerly protected freedom of communications on the high
seas, cannot legitimately be invoked to imperil the conservation
of the wealth of the high seas.
Position of the International Law Commission
It is this concept of the freedom of the seas that underlies
article 27 of the draft submitted by the International Law Com-
J. mission in its final report to the General Assembly. In the com-
mentary on the article, it points out that ,any freedom that is
to be exercised in the interest of all entitled to enjoy it, must
be regulated. Hence, the law of the high seas contains certain
r rules, most of them already recognized in positive international
law, which are designed, not to limit or restrict the freedom of
the high seas, but to safeguard its exercise in the interests of
the entire international community.,, Among these rules it mentions
specifically, "the rights of States relative to the conservation
of the living resources of the high seas? and "the rights of
coastal States with regard to the continental shelf". The re-
gulation of the freedom of the se& formulated by the Commission
with respect to the utilization and conservation of its wealth
shows in fact that this is the only path to be followed at the
present day if the rational exploitation of that wealth is to be
ensured and the interests and rights of all are to be safeguarded.
The new conception of the principle of the freedom of the seas
The freedom of the seas, conceived solely as "the opposite of the
sovereignty of the sea", involves the idea of absolute freedom
of use and exploitation of its resources. As long as those re-
sources were inexhaustible or were not liable to waste, damage
or extermination as a result of the means and methods used to
exploit them, any form of regulation would have been bound to be
unjustified. At the present day, however, especially if the
economic and social repercussions of technical advances are born
in mind, this concept of the freedom of the seas is logically
inadmissible. Even in traditional international law itself the
principle of the freedom of the seas as far as it concerns freedom
of navigation was not absolutely free from limitations. The
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right of boarding and search, the right of pursuit ah other rights
which the State was ackhoinrledged to possess on the high seas
clearly show that the possibility of abuse of freedom of naviga-
tion had made it necessary to place certain restrictions on the
use of the sea as an international highway. Accordingly, the
same possibility of abuse of the freedom to use the resources
of the seas new makes it necessary to place certain limitations
on the exercise of that freedom.
In conclusion we may add that the principle of the freedom of
the seas can effectively fulfil its role only if conceived in
such terms. In view of the form now taken by the problems relating
to the use and conservation of the resources of the sea, it is
idle to hope that this principle can continue to serve as a jus-
Quite
tification for the unrestricted exploitation of such wealth.
on the contrary: the experience of recent years shows that it
would be by no means going too far to state that the very con-
tinued application of the principle may depend on the manner in
which the right to exploit that wealth is regulated.
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