JPRS ID: 10674 WORLDWIDE REPORT LAW OF THE SEA

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JPRS L/ 10674
21 July 1982
~l1/orldwide Re ort
p
~ LAW OF THE SEA
~FOUO 4/82)
Fg~$ FOREIGN BROADCAST INFORMATiON SERVICE
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NOTE
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JPRS L/10674
21 July 1982
WORLDWIDE REPORT
- LAW OF THE SEA
(FOUO ~4/82)
CONTENTS
WORLDWIDE AFFAIRS
~MAINICHI~ Views UN Sea Law Lonference Convention
( Editorial;~ MAIIJICHI DAILY iJEWS, 15 May 82 1
NEAR EAST AND NORTH AFRICA
INTER-ARAB AFFAIRS
Briefs
Division of Continental Shelf 3
SUB-SAHARAN AFRICA
, MAURITIUS
, British Sovereignty Over Chagos .Archipelago Disputed
(Jonathan M~Haruias AFRIQUE-ASI~, 10 May 82) 1~
USSR
Soviet Jurist Discusses Freed om of the Seas
(S. A. Gureyev; SOVETSKOYE GOSUDARSTVO I PRAVO~ Mar 82).. 9
- a - [III - WW - 136 FOUO]
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WORLDWIDE AFFAIRS
't�tAINICHI' VIEWS UN SEA LAW CONFERENCE CONVENTION
OW170949 Tokyo MANICHI DAILY NEWS in English 15 May 82 p 2
[Editorial: "For New acean Order"]
(TexC) The United Nations Conference on the Law of the Sea recently adopted an international
convention establishing rules for the use and exploration of the seas and seabed. This
is the first step toward establishing order in the oceans under the changed circumstances
of the 20th century.
'Clie convention which wound up nearly nine years of hard bargaining since DecemDer, 1973,
c~ontains some 320 articles and eight annexes covering, among others, seabed mining and
tlie establishment oC a 12-nautical-mile territorial sea limit and a 200-~ile exclusive
~economic zone for coas tal states with the right of innocent passage through territorial
scas and narrow straits.
It is indeed heartening to note t.hat the convention, although merel} a draft pending the
ratification of the countries concerned, received supporting votes from 130 countries
' including Japan, France and almost all Third World nations. The convention is to be
signed in Caracas. Venezuela, in December this year, and will most likely go into effect
in the latter part of the 1980s.
On the other hand, it is regrettable to note that the UN Conference on the Law of the Sea
which ortginally sc~ugti* the adoption of ths convention by consent had to make a deci5ton
on it by vote. I~oc. countries the United States, Israel, Venezucll and Turkey voted
agatnst It, while 17 nations, including the Soviet Union, Britain, West Cermany ~nd
several Gastern Guropean countries abstained. The absence of the ~;ao great powers, the
United States and the Soviet Union, means great problems ahead for the convention.
Altiiough the United S tates and the Soviet Union did not vote, it does not mean th~t they
will stay out of the convention permanently. The Soviet Union abstained because it felt
i~ w~s Uein~; discriminaCed agai.nst cqmpared with tlie United States on the question of.
pr~~Coction c~f advance investment in seabed development.
Thc Suviet Union, aUout the middle�of thLs April, made a decision on its own devel.opment
of scabed resources by a presidium d~cree. The decree is to be abolished if internattonril
.i};rec~ment ~n this matter i5 concluded by 1988. Thus, the Soviet Union is likely to take
~~:irt in lhe convention in the future.
~~n tlie othcr hand~ the prospects for U.S. participntion arc rather dim under the present
rirrumtitnnces. In the nintli session in 1980, ~ draCt convention was drawn up unofficlally
up~~nin~; the way tor er~rly concluston of the conference. However, the tenth session in
1981 :ind the llth sess ion this year encountered rough sailinq mainly because the U.S.
tiid~~ chan~ed its posi.ttim and rofu,ed to comp].y with Lhc gcneral trend.
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MOR OFFIC'IAI, l1SF. ONI.,Y
'I'I~~~ It~:~~;~m administration which was inaugurated in 1981 made an about-face from the position
uf the Carter administration which agreed to a'consensus process at the conference. The new
regime demanded that the draft convention, especially with regard to the passage concerning
seabed development, should be thoroughly reappraised.
Tlie U.S. contended tliat it could not protect its national interesCs or '.hose of private
enterprlses, nor could it obtain ratification at the Senate if the proaosed convention
were not rewritten.
In the llth session, the United States made some concessions Uut eventually it voted
ngainst the convention, demanding that its adoption be decided not by consent but by
vote. As it opposes the seabed development clause, there is a possibility that the United
St:ites may not participate in the convention at all.
Tlie United States ut present plays a very important role in development of the seaUed.
Its participation is, in a senae, considered essential. Especiully at this time when the
worid depends on the United States for seabed development technolosy and necessary capital,
its ~bsence is likely to reduce the proposal of seabed development by an international
organ to a mere pipe dream and, furthermore, dnm~se the authority of the convention itsclf.
The llnited States, too, will suffer a great deal for failing to participate in the con~en-
tion. Japan; a leading maritime nation, should call on the United States to exercise its
wisdom and take part in the convention. We all have to exert our utmost to make the
. proposed convention the constitutian of the sea in the true sense of the term.
COPYRIGHT: Mainichi ~aily News [1982]
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INTER-ARAB AFFAIR$
BRIEFS
DIVISION OF CONTINENTAL SHELF--Tunisians and Libyans will open talks on the
division of the continental shelf at the end of the month of May. But with
the three-month deadline to reach an agreement, set by the International Court
of Justice (The Hague), expiring on May 24, an extension will certainly be
imposed; moreover, such an extensior. was anticipated by the International Court
- of Justice. [Text] [Paris JEUNE AFRIQUE in French No 1115, 19 May 82 p 75]
[COPYR~GHT: Jeune Afrique GRUPJIA.1982]
CSO: 5200/5007
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~ MAURITIUS
~ BRITISH SOVEREIGNTY OVER CHAGOS AitC~IIPELAGO DISPUTED
Paris AFRIQUE-ASIE in French 10 1Nay 82 pp 32-33
[Article by Jonathan M'Haruia: "Negotiationa with a Trap in Them"j
[Text] It's not ~ust before the people of Saint-Malo that ~
Great Britain flaunts its old colonial demons. Without
mentioning Ireland, there are AtilJ. numerous examples of
~ the "confetti of the Empire" from which a savage beast could
emerge. From the Chagos Archipelago, for example, with the
acandal of Diego Garcia.
The status of the peoples of the Chagos Archipel$go~, expelled from their
islands between 1965 and 1973, was the sub~ect of an agreement reached in
Port Louis, Mauritius, on 27 March. On this date a multiparty Mauritian
, delegation--composed amang others, of political figures, including Paul
Berenger, secretary general of the l~i [Mauritian Militant Movement], and
representatives of the Chagos Islandera Fraternal Organization [Comite
Ilois-OF], led by Minister of Soc~al Security Kailash Purryag--met with a
delegation �rom the British Foreign Office, led by Sir Leonard Allinaon,
under secretary of state.
By the tp;ms of this agreement, the Chagos Island community, members of which
have for some years been called "the Palestinians of the Indian Ocean," is
to receive $0 million rupees** from the British Government as a"final"
settlement and 20 million rupees from the Mauritian Government in the form
of land. That is to come into effect in June, af ter the new Mauritian par-
liament, elected in the same month, will have approved legislation concerning
establishment of a special body created to manage this aum of money.
The difficult riegotiations between the two parties--the final phase lasted
for a week--were marked by a characteriatic piece of blackmail on the part
of the British. The latter included in the agreement a clause under which
Mauritius, whatever its new government may be, could no longer claim
sovereignty over the Chagos Archipelago once the settlement is paid.
* The Chagos Archipelago includes, in particular, the island of Diego Garcia.
One French Franc equals 1.7 Mauritian rupees.
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At a certain moment, the british delegation even brought out the point that
compensation would not be paid except on condition that this clause was .
approved. Faced with the categorical re~ection of this clauae by the
Mauritian side and especially by the Chagos Islanders and a refusal to give
in to this shameful and typically colonialiat blackmail, the British delega-
tion agreed, with London's approval, to separate the two aspects of the
din~ute;~that is, Diego Garcia from Mauritian sovereignty over the Chagoa
Archipelago and compensation for the Chagos Islanders, toward whom Great
Britain, which forced them into exile in 1965, has responsibilitiea and
moral obligations.
It was a*_ this stage of.the negotiations that Paul Berenger asked the British
delegation for a copy of the agreement which it was proposing. At several
points the text made mention of the Britiah Indian Ocean Territory (BIOT),
a colonv created by the British out of Mauritian and Seychelles territories
annexed in 1965. Since then, the Seychelles claimed and obtained the return
of ti:eir islands. The Mauritian delegation then insisted that the term BIOT
be abolished, as its very mention could be interpreted as "de facto"
recognition of the ceseion of the Chagos Archipelago.
After having brutally announced, and in the purest colonialist spirit, that
"you must sign or we will take back the money offered," the Britieh ended up
_ by taking out the reference to the BIOT. However, they insisted that it
appear at least once, in the absence of which, they alleged, the text of the
- agreement would hav~ no validity before the Britieh Parliament..
T~ao Mauritian amendmen~s seekin$ to indure that "this agreement ia without
pre3udice to the qses~ion of Mauritian sovereignty over the Chagos
Archipelago" were subsequently rejected by the British. It was at this
p^int that the latter began to use a shameful and unacceptable procedure in
the old tradition of "divide and conquer." Addressing themselves to the
representatives of the Chagos Islandera, the British held out to them an
offer of 4 mi.llion pounds sterling, in this way going over the heads of the
other Mauritian delegates.
At the same time the Mauritian Ministry of Justice informed. the delegation
that, from its poini of view, the mention of the term BIOT in the agreement
did not exclude an eventual Mauritian claim to the Chagos~Archipelago. The
Ministry also explained to the Mauritian delegation that there were three
stages in the processing of an agreement of thie kind: the delegations
initial the agreement; the governments sign it officia:.ly; and it is sub-
sequently ratified by the parliaments of the two co~mtries.
The Mauritian delegation thus had to choose between initialing the agreement
in the light of the advice of the Mauritian Minietry of Justice and then
consulting other experts in the f ield of international treaties--particularly
. as the agreement could not enter into eff.ect before the electiona scheduled
for 11 June--or asking the Bri.tish to leave the draft text on the negotiating
table while waiting for experts to examine ~t in detail.
Taking into account the impatience and ev~n despair of the Chagos Islandera,
which certain parties were beginni:~g to utilize, the Mauritian delegation
chose to initial the agreement.
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Lastly, to inaure that the agreement, as drafted, woulsl not be pre~udicial
to an official demand before some international body and before the inter-
national community for the return of the Chagos Archipelago to Mauritius, the
Mt~i, the Chagos Islanders Fraternal Organization, and the organizations
supporting the islanders' cause first of all sought the views of an inter-
national lawyer, in this case Prof Andre Oraison, and called for an examina-
tion of the text by a group of experts from several countriea, meanwhile
asking the Mauritian Government to delay the official signature of the
agreen.ent . '
Professor ~raison, author of a study on the Chagos Archipelago, in which he
supports the view that Mauritius has the ri&ht to claim this archipelago,
holds the view that the text of the agreemerit could be interpreted as "de
facto" recognition by an independent Mauritius of the cessian of the Chagas
" Archipelago during the colonial period.
Without the vigilance of the MNIlri, and principally of its secretary general,
Paul Berenger, as well as a number of lawyers, would Mauritius have supported
a second cession of the Chagos Archipelago, and this time on a permanent
basis? This was the more possible, since the Mauritian Government alleged
that the use of the term BIOT did not constitute an obatacle to a claim to
the Chagos Archipelago.
Whatever the case, the British objective was, through this agreement as
initially drafted, to permanently "muzzle" a future government formed by the
rAtM and the PSM [Mauritian Socialist Party], as the present government never
sought ~o challenge the occupation of the CY~agos Archipelago by t"r?e British.
It is clear, to the British and, moreover, to the Americans, that the Mi~Ilri
and the PSM, in power tomorrow with a solid case and international solidarity
already secured, will make the retrocession of the Chagos Archipelago and
the dismantling of the base on Diego Garcia real ob~ectives of struggle.
People of Saint-Malo? No, from the Chagos Archipelago
During the last 17 years the sufferings of 942 families of Chagos Islanders
deported to Mauritius by the British have revealed the revolting and anti-
patriotic attitude of the government under Prime Minister Sir Seewoosagur
Ramgoolam toward these uprooted people. The present government has never had
the interests of the Chagos Islanders at heart. Between 1965, when Great
Britain detached the Chagos Archipelago from Mauritius at the request of the
United States so that a military base might be built there, and 1973, the
islanders were forced to move away.
In Mauritius there was simply no plan to welcome these "Palestinians of the ,
Indian Ocean." A study carried out by Herve Sylva, a Mauritian teacher, at
the request of the Mauritian delegation, make~ it clear that since they were
forced into exile the islanders have been housed ~�::d~r indescribable condi-
tions. In the shanty town areas of Port-Louis, Roche-Bois, Cassis and Pointe-
aux-Sables, for example, it was noted that up to 31 persons were living in
3 rooms, that 21 other persons lived in 2 rooms, that 14 others were in a
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1-room efficiency flat, and that 8 families were living in camps set up for
cyclone refugees. These figures clearly reflect the situation in which the
whole Chagos Islander community lives.
There have been many cases of premature death, of suicide and even of
insanity. A number of Ch~agos Islanders have been forced into prostitution
to support their families, to say nothing of the situation of unemployment
which affects many heads of families, with the usual consequences.
In 1972, or 7 years after the detachment of the Chagos Archipelago, the
British Government granted compensation of 650,000 pounds sterling* for the
rehabilitation of the Chagos Is~andera over and above a sum of 3.0 million
~ pounds sterling paid to the Mauritian atate to compensate it for the loss of
the archipelago. In view of the "good will" displayed by the qovernment,
it was necessary to have several demonstrations sponsored by the Chagoa
Islanders Fraternal Organization and a number of hunger strikes before the
government of Prime Minister Sir Seewoosagur Ramgoolam agreed to pay part of
this compensatfon to the Chagos Islanders in 1978.
A new hunger strike had to be organized in December 1980 to insure that the
582 adults and 727 children, who had received nothing, would also be compen-
sated.
In view of the indifference displayed by the government eight Chagos '
- Islanders women began a third hunger strike in April 1981. This was the
longest (20 days) in the history of the Chagos Islanders movement. An agree-
~ ment put an end to the hunger strike on 11 April 1981. On the one hand it
provided for the payment of the second installment of compensation and, on
the other hand, for the establishment of a multiparty Mauritian delegation
charged with going to London to uegotiate for the payment of 158 million
rupees in additional compensation. The London negotiations, held in June and
July 1981, were broken off, as we know, by reason of the attitude displayed
by Great Britain and the gap between the Mauritian demand (158 million
rupees) and the British offer (31 aillion rupees).
It should be emphasized that the Mauritian Government, which has the habit
of playing on the misery of the people tio make them swallow a long snake, as
it were, had previously arranged secretly, and in complicity with Great
Britain, for the visit of a British lawyer, Bernard Sheridan, for the purp~se
of persuading the Chagos Islanders to accept a sum of 1.25 million pounds
sterling in exchange for renouncing any right to return to their native
island.
It was the P4IM which, in January 1980, denounced this scan~al in which the
government of Prime Minister Sir Seewoosagur Ramgoolam was involved and the
purpose of which was to legitimize the abandonment of the Chagos Archipelago
to the benefit of Great Britain and the United States, which are using Diego
Garcia for military purposes.
* In i972 the British Pound was worth 12 F.rench Francs.
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Certain members of the government of Sir Seewoosagur Ramgoolam, who did not
hesitate to claim in parliaIIent and in the press that "Diego Garcia is
Brit3.sh," did everything in their power to persuade the Chagos Islanders to
renounce their rights to Diego Garcia. These ministers, who are more inclined
to defend British interests than those of their own country, exploited the
misery ancl despair of the Chagos Islanders by making them believe that the
only chance af getting compensation from London was to renounce all their
rights to Diego Garcia once and for all.
If it has become clear today that Sir Seewoosagur Ramgoolam was personally
and directly responsible for the detachment of the Chagos Archipelago from
Mauritian terrttory in 1965; it is still he and his government who bear the
responsibility for the ab~ect misery in which the people exiled from Diego
Garcia now live. ~
Even if we consider that financial compensati~n, however substantial it may
be, can never make up for the suffering which the Chagos Islander community
has endured since 1965, the exiles from the Chagos Archipelago have been
supported in their struggle to obtain compensation by the MNA~[ and various
uther organizations.
The initiative taken by Sir Seewoosagur Ramgoolam to arrange for a resump-
tion of the negotiations in London, after their breakdown in July 1981, can
only be interpreted as a rescue operation undertaken in view of the elections
in June, in which his government is seriously threatened.
COPYRIGHT: 1982 Afrique-Asie
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USSR
SQVIET JURIST DISCUSSi,S FREEUOM OF THE SEAS
Moscow SOVETSKUYE GOSUDARSTVO I PRAVO in Russian No 3, Mar 82 pp 104-110
[Article by Docto.r of Legal.Sciences S. A. Gureyev, senior scientist, Institute of
_ State and Law, USSR Academ,y of Sciences: "Freedom of thp High Seas"]
[Text] The World Ocean now has enormo~is significance to the life of peoples on
our planet. It is criss-crossed by marine routes handling cargo equivalent to abou'~
80 percent of international trade. The ~~Torld Ocean is also a"treasurehouse" of
significant living and mineral resources making an important contribution to pro-
viding the populations of different cauntries with foodstuffs and their economies
with minerals. This is why all states are devoting a great deal of attention to
the proceedings of the Third UN Conference, which has the job of developing and
adopting a new convention on the law of the sea. The draft convention on the law
of the sea, which was drawn up at the conference,* developed the basic principle
of international law of the sea--freedom of the high seas.
Formation of the Principle of Freedom of the High Seas
This principle evolved in the 15th-17th centuries during an acute struggle
between the major feudal states of those times--Spain and Portugal, which
had divided the seas between themselves on one hand and some states in which the
~ capitalist means of production was undergoing development, mainly England and France,
and later on Holland, which argued for recognition of freedom of the seas, on the
other ((1),pp 8-24; (2) pp 45-56). The demands for development of worldwide economic
ties between states on the basis of international division of labor in the interests
of thP bourgeoisie of all countries gradually led to increasingly broader recogni-
tiori of the principle of the freedom of the high seas. It was conclusively con-
~ firmed as a conventional norm of international law in the second half of the 18th
century ((1), p 16; (3)). As A. L. Kolodkin validly noted, "the principle of free- ~
dom of the high seas arose in the era of capitalism's maturation and rise to the
top, in the period of decline of feudal claims to the right of ownership of the
se.as, and it was confirmed as a rule of international law as the result of establish-
ment of the capitalist means of production, in the period of formation of the world-
' wide market and victory of bourgeois revolutions" (4).
*A decision was made at ~he lOth Session of the Third UN Conference on the Law of
the Sea (1981) to make the previously developed unofficial text the official draft
convention on the law of the sea.
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The content of the principle of the freedom of the high seas did not remain constant.
While in the beginning freedom of navigation and freedom of fishing were inherent
elements of this principle which concurrently enjoyed independent significance, in
the last third of the 19th century a new element of freedom of the high seas came
into being in connection with the development of communication r~sources--the freedom
to lay submarine cables and pipelines. "One of the consequences of the freedom of
the high seas," notes D. Kolombos, "is the right of a state to lay submarine tele-
graph cables from its own shores to the shores of other states expressing their
consent to establish communication" ((2), p.333). The laying of the first cable
~ between Dover and Calais in 1851 and later on of the Atlantic cable between Europe
and America necessitated internati~nal legal protection of submarine cables. It
was with this purpose that the International Convention on Protection of Submarine
Telegraph Cables was adopted in 1884.
Development of aviation in the late 19th and early 20th centuries served as the
cause for formation of the principle of the freedom to fly over the high ~eas.
This principle arose out of a conflict between two theories: "freedom of the air-
space" ar.d extension of t'~e sovereignty of a state to the airspace above its terri-
tory ((`i), pp 51-64). Both conceptions were proposed for discussion during the
diplomatic conference held in Paris in 1910.
Article 1 of the existing 1944 Convention on International Civil Aviation states:
"Every state has full and exclusive sovereignty over i:he airspace above its terri-
_ tory." The order of granting permission to foreign aircraft to fly over state terri-
tory, including territ~rial waters, was also documented in international law of the
air. Concurrently with recognition of the principl~ of a state's sovereignty over
the airspace located above its territory, "freedom of the airspace" was limited to
space located outside the limits of the territories of states, and the principle of
freedom to fly over the high seas was confirmed in international law.
The principle of freedom of scientific research on the high seas became a conven-
tional rule of international law, in my opinion, in the late 19th and early 20th
centuries. Although scientific research on the World Ocean has a distant history,
it did not transform into an independent form of man's activities on the seas and
oceans until the late 19th century. Circumnavigations of the planet by Russian
navigators--I. F. Kruzensht~rn and Yu. F. Lisyanskiy (1803-1806) and F. F. Belings-
gauzen and M. P. Lazarev (1819-1821)--laid the basis for fundamental scientific re-
search on the World Ocean. But scientific research on the World Ocean began develop-
ing especially swiftly followinq World War II, in the era of the scientific-technical
revolution. Major scientific research fleets are now appearing in many countries.
Research is being conducted in both national and international programs. Not only
scientific research vessels but also platforms, buoys, submersibles, oceanic data
collection systems and other apparatus are being employed for this purpose. The
Soviet Union is making a substantial contribution to scientific research on the
World Ocean. A resolution of the UN General Assembly dated 21 December 1968
approved the International Decade of Ocean Research in 1971-1980.
In addition to the decisive contribution made by states to the development and con-
firmation of the principle of the freedom of the high seas, we should also mention
the contribution made by individual scholars as well as by nongovernment and intra-
governmental international organizations to development of the concept and content
of this principle and to codification of international law pertaining to this area.
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The content of the principle of the freedom of the high seas is revealed and its
basic elements are spelled out in particular in a declaration drawn up by the
- Institute of International Law at one of its conferences in (Lozan) in 1927, and
in the draft "Laws on Marine Jurisdiction in Peacetime," prepared in 1926 by the
~ International Law Association. Later on the effort to codify international law
on the regime of the sea was conducted by the UN Commission on International Law,
which prepared drafts placed at the basis of the 1958 Geneva conventions on t~:~
law of the sea. In them, universally recognized principles and rules of the regime
of the sea, to include the principle of freedom of the high seas were codified and
developed further. The 1958 Geneva Convention on the High Seas clearly describes
the essence of the principle of the freedom of the high seas: "The high seas being
open to al.l nations, no state may validly purport to subject any part of them to
its sovereignty." Further on the convention indicates the inherent ele~r,ents of the
freedom of the high seas, which are organically interrelated and which, in their
sum total, make up a single whole ((6), pp 62-68). 1'he freedom of the high seas
"comprises, inter aZia: 1) freedom of navigation; 2) freedom of fishing; 3) freedom
to lay submarine cables and pipelines; 4) freedom to fly over the high seas" ((6),
pp 211-230). Thus this list is not exhaustive in nature, as is indicated in another
provision of the Geneva c~nvention, according to which: "These freedoms, and others
which are recognized by the general principles of international law shall be exer-
cised by all states..." (Article 2). They include, for example, the freedom of
scientific research on the high seas (7,8).
Each of the elements listed here also has independent significance ~s a less-general
principle in relation to the more-general--the freedom of the high seas. Thus it
was validly noted in the Soviet legal literature that the principle of the freedom
to fly in international airspace (this applies to all aircraft above the high seas
and to civil aircraft above Antarctica) is one of the fundamental principles of
international air law ((5), p 48), which is a subdivision of general international
law .
The definition of the high seas rest upon, besides their legal characteristics
(1--they are not under the sovereignty of any one state; 2--they are open to all
states on an equal basis), a geographic characteristic--their location outside the
1~.;,~ts of territorial waters.
Influence of the Principl` of Freedqm of the High Seas on Development of Other
Principles and Rules Regulating the Regime of the Sea.
~ The principle of innocent passage of foreign vessels through the territorial sea
came into being under the influence of the principle of the freedom of the high seas
and achieved broad international recognition. Obviously without the right of inno-
cent passagc:, all states would in fact be deprived of the possibility of exercising
the freedom of navigation and developing normal worldwide economic ties and cooper-
ation in other pursuits. The English lawyer J. Brownlee validly noted that from
a historical standpoint, the right of innocent passage is associated with the pro-
vision that "the maritime regions are in principle the high seas, with some limita-
tions in favor of the coastal states." "As a question af policy," he continues,
"innocent passage is a sensible form of compromise between the need for marine
communication and thz interests of a coastal state" ((9) p 308).
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The principle of the freedom of the high seas also had an influence on the develop-
ment of the freedom of innocent passage of vessels through international straits
connecting two parts of the h~.gh seas, and their overflight by aircraft ((10); (11),
pp 119-136). From the standpoint of international law, the r~gime of navigati.ng in
straits conr~cting two portions of the high seas, in which the princi.ple of the
freedom of navigation and the freedom to fly is in effect, canno~t be defined by
any principle other than the freedom of passage through them by vessels and flight
over them by aircraft.
International straits have tremendous significance to development of cooperation
between states in foreign economic ties, and to ensuring the security of states.
Documentation of the principle of the freedom of passage through such straits in
the new convention on the law of the sea, developed at the Third UN Conference, is
~ extremely important for the reason that most states have now expanded their terri-
torial waters to the 12-mile limit. Under these conditions many of the most impor-
tant straits are within the overlapping territorial waters of coastal states. A
balanced and mutually acceptable splution to this important problem was reached in
the draft convention on the law of the sea (12). The solution is based on the
principle of combining the freedom of passage and the guarantees that states
bordering on straits would be able to exercise rights accounting for their interests,
thus ensuring both the safety of passage of vessels and flight by aircraft on one
hand and the security of coastal states on the other. According to the draft all
vessels and aircraft enjoy the right of ~ransit passage through straits utilized
for inter.national shipping and connecting one region of the high seas (economic zone)
with another region of the high seas (economic zone), and that no obstacles may be
placed in the way of such passage. Transit passage is an exercise of freedom of
navigation and flight solely with the purpose of continuous and swift transit
through a state (articles 37 and 38 of the drafts). There must be no interruptions
in transit passage (Article 44).
The principle of the freedom of the high seas, which includes the principle of
the freedom of navigation, is having an influence on the development of the princi-
ple of archipelago passage through marine corridors and of flights through air corri-
dors established by an archipelago state in archipelago waters (Clause 2, Article 53
of the draft convention on the law of the sea). Archipelago passage through such
corridors is an exercise of the right of normal navigation and flight solely with
- the purpose of continuous, swift and Lmhindered transit from one portion of the high
seas or economic zone to another portion of the high seas or economic zone. Such
marine and air corridors cross archipelago waters and contiguous territorial sea,
and they include all normal routes of passage used as routes for international
stiipping or flight over archipelago waters (clauses 3, 4 Article 53 of the draft).
If an archipelago state does not establish marine or air corridors, the right of
archipelago passage through marine corridors may be exercised on routes usually em-
ployed by international shipping. There must be no interruptions in archipelago
passage (articles 54 and 44 of the draft convention).
Nbdern Trends in the Development of the Principle of Freedom of the High Seas
The problem of establishing the status of 200-mile economic zones is having a direct
influence on development of the principle of the freedom of the high seas today.
The Third UN Conference on the Law of the Sea revealed two opposing positions on
this issue. The "territorialist" delegations voted for establishing a 200 nautical
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milc limit for territorial waters or for bringing the regime of the economic zone
as closely as possible in line with ~he regime of territorial waters. They asserted
that an economic zone is not a part of the high seas, and that it is a zone sui
gener'is, in which the rights of noncoastal states must be clearly restricted only
by stricly defined freedoms.
Another sizeable group of delegations, including the IISSR, voted in the conference
in favor of recognizing the economic zone to be part of the high seas having excep-
tions favoring coastal states, ones which would be established by the new conven-
tion on the law of the sea (particularly in regard to sovereign rights on living
and mineral resources). Inasmuch as this proposal, and others like it, were not
reflected in the unofficial summary text to be used in the negotiations, the USSR
delegation proposed including, in the draft convention, the provision that no state
could subordinate any part of the sea within the limits of the territorial waters
to its sovereignty. A similar proposal was made by the "Group of Fifty-Three"--
that is, intracontinental countries enjoying a geographically disadvantageous posi-
tion, and almost all sea powers. Despite the fact that the unofficial sumanar~?
text for negotiations and the draft convention on the law of the sea do not directly
foresee the appropriate provisions,we would have to agree with the West German lawyer
G. Jaenicke that following the sixth session of the conference, a balance was
reached between the rights of a coastal state and the rights of other states in
an economic zone--that is, a certain compromise was reached on the issue of the
economic zone's legal status ((13), pp 488-489, 491). Nbreover zhe provisions on
the status of the economic zone contained within recent drafts of the convention
provide, in my opinion, the grounds for the conclusion that this zone is in fact
interpreted as part of the high seas, with some exceptions in favor of the coastal
state, as is evidenced by the following facts.
According to Article 55 of the draft convention on the law of the sea, an
economic zone is a region which is within the limits of the territorial sea and
is contiguous to it, and consequently to which the sovereignty of the coastal
states does not extend. According to Article 58 of the draft convention, within
an economic zone, "all states enjoy the freedoms, indicated in Article 87, of
navigation and flight, of laying submarine cables and pipelines and of other forms
of uses of the sea which are legal from the point of view of international law,
which relate to these freedoms, such as those associated with the operation of
vessels, aircraft and submarine cables and pipelines, and which are compatible
with other provisions of this convention."
Of interest is the fact that this article contains a reference to Article 87, "The
High Seas." Thus the freedoms that are exercised in an economic zone are unambigu-
ously qualified as freedoms of the high seas. Jaenicke validly notes that "these
freedoms, therefore, apply to the economic zone in the same quality and in the same
volume as they apply to the high seas" ((13~, p 490). According to Clause 2,
Article 58 of the draft convention, articles 88-115 (that is, all of the basic
provisions of Section VII, "The High Seas") and other corresponding norms of inter-
national law apply to the economic zone, inasmuch as they are not incompatible with
Section V of the draft convention pertaining to the economic zone. Thus Article 89,
which states that "No state has the right to purport to subject any part of the
high seas to its soveriegnty," also applies to the economic zone. Thus we avoid
~ the danger of "creeping jurisdiction" and gradual transformation of an economic zone
into sea space under the sovereignty of a coastal state--that is, into territorial
waters ((13), p 491).
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According to the draft convention (Clause 2, Article 56) coastal states exe~-
cising their riqhts and performing their responsibilities accurding to the conven-
tion in an economic zone must account for the rights and responsibilities of other
states in proper fashion. Nor should we fail to note that in distinction from the
firet drafts (for example the revised unified text for negotiations (14)), Article
56 of the draft convention on the law of the sea does not establish exclusivc
jurisdiction of a coastal state in relation to, for example, scientific research.
It simply foresees jurisdiction in relation to scientific research and protection
and con.ervation of the marine 2nvironment, and it cites the appropriate provisions
of the draft. Article 56 of che draft thus does not have independent significance,
and it must be applied to the issue of the extent of a coascal state's jurisdiction
over a particular area only in combination with provisions concerned with a parti-
cular form of activity in the economic zone. In and of themselves, however, the
concepts "sovereign rights," "exclusive jurisdiction" and "jursidiction" do have
definite semantic meaning. Thus we could hardly agree with the West German lawyer
L. Gundling, who sees only a difference in terms here, and not in meaning. In his
opinion, the a_~tinction made in Article 56 of the draft convention between the
concepts "sovereign rights" an d"jursidiction" does not exclude the notion that a
coastal state also enjoys exclusive rights in relation to scientific research and
co:itrol over pollution. In this connection he concludes that. for practical pur-
poses the unofficial summary text for ne~3otiations (and consequently the draft
conventioii on the law of the sea, which. says the same thing in regard to this
issue) did not alter the nature of the rights of a coastal state in comparison with
the previous drafts of the convention, and that the compromise represented by the
phrase "jurisdiction foreseen in the present convention" is only an apparent com-
promise ((15), pp 627,638,639).
Let us examine the trends in devel.opment of the basic freedoms of the high seas today.
a) Freedom of Navigation and Exclusive Jursidiction of a State Over Vessels
Carrying Its Flag
The draft convention on the law of the sea affirms the provision according
to which both coastal states and states without access to the sea
enjoy the freedom of navigation on the high seas, including in economic zones.
According to the 1958 Geneva Convention on the Hiqh Seas a vessel must sail under
the flag of one state only and, save in exceptional cases expressly ~~rovided for
in international treaties and in the convention itself, it is subject to its ex-
clusive jurisdiction on the high seas. Exceptions to exclusive jurisdiction are,
according to the convention, in particular: The right to pursue a foreign merchant
vessel for violation of the laws and regulations of a coastal state; intervention
in a vessel's acts of piracy and engagement in slave trade. All of these provi-
sions have been carried over the draft convention on the law of the sea. Excep-
tions to the exclusiv~ ;~~r~sdiction of a state over vessels of its flag on the
high seas are esta~iished by all states on a voluntary, mutual and equal basis in
the interests of_ developing cooperation between them in various areas, to include
in international shipping.
It should be noted that additional exceptions to the exclusive jurisdiction of the
state over vessels of its flag on Lhe high seas, based on the freedom of naviga-
tion, are now underqoing formulation ~~r have been form�~.ated. Such exceptions
may occur in the following cases: 1) ac;cifiGi;~s leading to pollution of the sea
by oil and other harmful substances (see the existing 1969 international convention
concerned with intervention on the high seas in cases of accidents leading to
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pollution by oil, and the 1973 protocol supplementing it); 2) unsanctioned broad-
casting from vessels on the high seas (Article 109, aubclause "c", Clause 1,
Article 110 of the draft convention on the law of the sea); 3) violations of inter-
national rules and standards of preventing pollution, halting pollution and contain-
ing pollution by a foreign vessel in an economic zone, as a result of which a coaet~l
state may subject such a vessel t~ inspection ancl even initiate pursuit, on the
assumption that certain conditions are complied with (Article 220 of the draft con-
vention).
~ b) The Freedom to Fly
The draft convention on the law of the sea carries over the provisior~ of the Geneva
Convention on the High Seas according to which freedom of the high seas includes
_ the freedom to fly. This m~ans that every state, be it coastal or noncoastal,
has the right to fly its civil and military aircraft over the high sc~as, including
economic zones, unhindered.
c) The Freedom to Lay Submarine Cables and Pipelines
This freedom of the high seas is also included in the list contained in Clause 1,
Article 87 of the draft convention. Moreover it is qualified in the article that
the freedom to lay submarine cables and pipelines is enjoyed by a state in com-
pliance with the provisions of Section VI, "The Continental Shelf." The reference
is primarily to Article 78 of the draft, according to which "the exercise of a
coastal state's right in relation to the continental shelf must not infringe upon
shipping a:zd other rights and freedoms of other states foreseen by this convention,
or cause any unjustified interference in the exercise of these rights."
We should consider, furthern?ore, Article 79, which indicates that all states i~:ave
the right to lay submarine cables and pipelines on the contine~ntal shelf in accord-
ance with the provisions of this article. Z'hese provisions include: 1) a coastal
state may not imped~ the laying or maintenance of cables and pipelines, subject to
its right to take reasonable measures for the exploration of the continental shelf,
exploitation of the natural resources of the latter and prevention, containment and
maintenance of control over pollution by pipelines; 2) the route for such pipelines
on the continental shelf are determined with the consent of the coastal state. In
my opinion this is the point of view from which we should interpret the provision
of the draft convention according to which all states enjoy the freedom of laying
submarine cables and pipelines in an economic zone (Clause 1, Article 58). Although
according to Subclause "a" of Clause 1, Article 56 the regime of the economic znne
extends to all natural resources, including nonliving resources on the sea bed and
within its subsoil, the actual utilization of mineral resources is governed by the
regime of the continental shelf.
d) Freedom of Fishing ((16), pp 659-707)
Examining the freedom of fishing today, we would first need to note that the action
of this freedom is limited only to those areas of the high seas which are within
the limits of 200-mile economic zones. In an economic zone, a coastal state enjoys
the sovereign rights to explore, exploit and conserve living resources, and t�o con-
trol these resources (Subclause "a" of Clause 1, Article 56).
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Thus regulation of fishing in.economic zones is within the competency of coastal
states (articles 61 and 62 of the draft). In this case the quite deliberate use of
the term "sovereign rights" in application to living resources means, in my opinion,
that a coastal state's rights pertaining to this i~sue are the broadest in compari-
son with its other rights in an economic zone. Second, we need to turn attention to
the fact that because fishing gear is undergoing significant technical improvement,
the responsi.bility of all states to seek ways to cooperate in the conservaLion of
the living resources of the high seas is becoming an incrPasingly more important
element of the principle of the freedom of fishing on the high seas. Existing in
a close mutual relationship, the freedom of fishing and conservation of livinq re-
sources are, in my opinion, elements of the single princa..ple of freedom of reason-
able and scientifically grounded fishing on the high seas.
Conservation of living resources on the high seas beyond the limits of eronomic
zones is withi.n the competency of states engaged in fishinq. In this cor~nection we
- need to tur:� attention to the statement in Article 87 that all states enjoy the
freedom of fishinq in compliance with the conditions spelled out in Section 2.
This section, which is titled "Control of the Living Resources of the High Seas
~ and Their Conservation," foresees that: 1) All states have the right to allow their
subjects to engage in fishing in the high seas in compliance with a number of con-
ditions (Article 16 of the draft); 2) all states implement measures found necessary
to conserve the living resources of the high seas, or they cooperate with other
states in the implementation of such measures in relation to their subjects.
e) Freedom of Scientific Research
The principle of the freedom of scientific research was stated for the first time
(in universal international conventionsl in the draft convention on the law of the
sea among other fundamental principles composing the freedom of the high seas;
this is an undoubtable merit of the draft. But at the same time it is important
to consider that the action of this principle is limited to those areas of the high
seas which are outside the limits of economic zones. In the latter, the coastal
state exercises jursidiction in relation to marine scientific research. This
jurisdiction is not exclusive for the following reasons. Coastal states exercising
their jurisdiction have the right to regulate, grant permission for and conduct
marine scientific research within their economic zone and on their continental
shelf. Suc:~ research is conducted by other states and competent international
organizations with the consent of the coastal state. But under normal ci+-:LL.~nstances
the latter gives consent for marine scientific research exclusively for peacpful
purposes and to expand scientific knowledge on the marine environment for the
good of all mankind. At the same time a coastal state may refuse to give consent
to another state or to a competent international organization to con9uct scientific
research, at its own discretion and in cases stYictly established by the draft,
and particularly if such scientific research has direct significance to the explora-
tion and exploitation of living and mineral natural resources by the coastal state.
Despite this provision, coastal states cannot refuse to give consent for scientific
research projects that are to be conducted on the continental shelf beycnd the
200 nautical mile limit and outside those regions which coastal states may at
any time officially declare to be regions of present or future--within reasonable
time--exploitation or exploration of the natural resources (Article 246 of the
draft convention on the law of the sea).
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Such are the basic trends in development of the principle of the freedom of the
high seas today, and of their realization in the draft convention on the law of
= the sea.
'Th~ USSR and other socialist countries are making a significant contribution to
the proceedings of the Third UN Conference on the Law of the Sea. They are deci-
sively i:+ favor of preserving the universally recognized principles of the inter-
national law of the sea in the new convention, to include the freedom of the high
seas and the freedom of passage of marine vessels through international straits
joining two portions of the hicrh seas, and of flights over them by aircraft; they
are also in favar of a balanced and :Z~atually acceptable solution to the issue as
to the status of the economic zone and other fundamental problems of the law of
the sea. The freedom of the :~igh se~s h~s exceptional significance to many develop-
ing states, which need to expand econ~mic and com~nercial ties with other countries
and which are developing their own national merchant tnarines.
The freedom of the high seas is a universally recognized imperative principle of
modern international law. It is the most important legal means of ensuring peace-
ful coexistence among states with different socioeconomic systems, and development
and deepening of their cooperation in different areas.
_ BIBLIOGRAPHY
1. Molodtsov, S. V., "Mezhdunarodno-pravovoy rezhim otkrytogo morya i kontinental'-
nogo shel'fa" [The International Legal Regime of the High Seas and the
Continental Shelf], Moscow, 1960.
2. Kolombos, D., "Mezhdunarodnoye morskoye pravo" [International Law of the Sea],
Moscow, 1975.
3. Kunz, J., "The Changing Law of Nations (Essays on International Law)," Ohio,
1968, p 35.
4. "Sovremenno~e mezhdunarodnoye morskoye pravo. Rezhim vod i dna Mirovoga
okeana" (Modern International Law of the Sea. The Regime of the Waters and
Floor of the World Oceai~] , Nbscow, 1974, p 26.
5. "Mezhdunarodnoye vozdushnoye pravo" [International Air Law], Book 1, Moscow,
1980.
6. ::�~1.odkin, A. L., "Mirovoy okean. Mezhdunarodno-pravovoy rezhim. Osnovnyye
pr~blemy" [~e World Ucean. The International Regime. Basic Problems],
Mos ;ow, 1973.
~
7. Vyso.skiy, A. F., Pravovyye problemy svobody nauchnykh issledovaniy v Mirovom
okean~" [Legal Problems in the Freedom of Scientific Research in the World
Ocean], Kiev, 1974, p 160.
8. Calfisch, L., and Piccard, J., "The Legal Regime of Marine ScientiEic Research
and the Third United Nations Conference on the Law of the Sea," ZEITSCHRIFT FUR
AUSLANDISCHES OFFENTLICHES RECHT UND VOLKERRECHT, Vol 38, No 3-4, 1978, pp
848-901.
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9. Brounli, Ya., "Mezhdunarodnoye pravo" [International Law], Vol 1, Nbscow, 1977.
10. Barabolya, P. D., "Problems of International Straits," in "Sovetskoye gosudarstvo
i m~~hdunarodnoye morskoye pravo" [Z'he Soviet State and International Law of the
Sea], Moscow, 1977, pp 19-33.
11. Zhudrd, A. K., and Dzhavad, Yu. IQ~.," Morskole pravo" [Law of the Sea), Moscow,
1974.
12. A/Conf. 62/L.78, 28 August 1980.
13. Jaenicke, G., "Die Dritte Seerechtskonferenz der Vereinten Nationen. Grund-
problems im Uberblick," ZEITSCHRIFT FUR AUSLANDISCHES OFFENTLICHES. RECHT
UND VOLKER~CHT, Vol 38, No 3-4, 1978.
14. A/Conf. 62/WP. 8/Rev. 1/Part II, 6 May 1976.
15. Gundling, L., "Die exlusive Wirtshchaftszone," ZEITSCHRIFT FUR AUSLANDISCHES
OFFENTLICHES RECHT UND VOLKERRECHT, Vol 38, No 3-4, 1978.
16. Wolfrum, R., "Die Fischerei auf Hoher See," ZF.ITSCHRIFT FUR AUSLANDISCHES
OFFENTLICHES RECHT UND VOLKERREQiT, Vol 38~ D;o 3-4, 1978.
COPYRIGHT: Izdatel'stvo "Nauka", "Sovetskoye Gosudarstvo i pravo", 1982
11004
CSO: 5200/1000 END
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