Monday, May 9, 2011

Brief Outline of the History & Development of the Law of the Sea


By Lesther Antonio Ortega Lemus
1.      Origins of the Law of the Sea

The law of the sea as a discipline is not new, although its distinct and independent existence could be set at the first half of the XXth century, as the result of the different international efforts to codify it and to reach consensus on the basic rules that had emerged throughout the practice of states in the precedent five centuries, and rooted in the very beginning of human civilization.

Avoiding the long journey of tracing back the very first expressions of regulatory norms for the conduct of human activities at sea, it is enough to state that the more important that the interaction with the sea became for an empire or human agglomeration, the more common the attempts to regulate the latter became, and those regulations went from simple assignment of competences to officers, to claim large areas of the sea under the exclusive control of that reign.  Nevertheless, it is important to highlight some of those events as they contributed in one way or the other to the current status of development of the law of the sea.
1.1.From the Romans to the Colonial Empires

Although there are earlier examples of sea-related regulations made by various human groups predating the Roman Empire[1], most of them were more of the maritime law kind, regulating the relations of cargo owners with ship owners, offences committed onboard, compensation, liability, etc[2].  Some others related to judicial decision and precedents that through the usages and customs of merchants rose as a branch of the Lex Mercatoria: the Lex Maritima[3].

Leaving such expressions behind, scholars have discussed the value of the many references in the roman texts about the regime of the Mare Nostrum[4], however it must be reminded that such a semi-enclosed basin, was under the exclusive control of the Roman Empire, which meant that it was the sole user of the waters and resources, leaving aside any consideration of an international regime[5].

The real first instances where the regime of the seas came into discussion were the claims made by some realms, like Venice[6] over the Adriatic Sea[7], or Genoa on the Ligurian Sea.  That phenomenon spread around in Medieval Europe, as the situation in the Baltic Sea, Northern Sea, Irish Seas and other spaces which were claimed by the Swedish, Danish, English[8], etc.

These claims usually were sustained in the ruler’s commercial and military power, and demanded from third parties tolls and taxes by the mere transit through those waters.  But once the small City-States declined in power and the larger empires arose, claims also grew in extension and complexity.

The most famous example of the aforementioned is the Treaty of Tordesillas[9] (1494), concluded between the sovereigns of Spain and Portugal, to modify the Pope’s Bull Inter Cætera II (1493)[10], which itself modified a previous treaty concluded by the former under the name of Alcáçovas-Toledo in 1479[11].  By that Treaty and the previous agreements, both kingdoms literally divided the world in two, including the oceans and navigation routes.  From that division, monopoly over the commerce and navigation to and from their subsequent colonies sprung, as well as the fierce reply from other nations by means of supporting buccaneers and pirates, or issuing letters of marque[12], as well as making a wide use of the institution of the privateer and the maritime prize.
1.2.       Mare Liberum, Mare Clausum and the Territorial Sea

As a result of one incident involving the monopoly over the commerce around Johor exercised by the Portuguese, the vessel Santa Catarina was captured and brought back as prize by the Captain Jakob van Heemskerck to Dutch port.  Before it was cleared as prize by court, a young lawyer by the name of Hugo Grotius was asked to deliver his opinion over the morality of the prize[13].  As a product of that request he wrote a whole book under the title De Rebus Indicis, which was not published by him, but by an editor until 1868 by the title De Iure Prædare Commentarius.  However, chapter XII of such book was published under the title Mare Libervm Sive De Iure Qvod Batavis Competit Ad Indicana Commercia Dissertatio in 1608[14].  Nowadays that short chapter is regarded as the beginnings of the Law of the Sea.

A clear exercise of advocacy, Grotius argued in favor of the liberty of the seas and oceans based on principles and writings of famous authors that stretch from biblical texts to the very founders of international law like Francisco de Vitoria[15].  That freedom covered the whole of the oceans, with a few very narrow exceptions: inlets, gulfs, inner seas, straits and what he defined as “…all the expanse of sea which is visible from the shore”[16].  Later on such phrase will be regarded as the predecessor of the Territorial Sea[17].

Unexpectedly, the most forceful replies came from the British, specifically from two authors: John Selden with his book Mare Clausum Seu De Dominio Maris Libri Duo[18], which was published in 1618, and William Welwod[19] in chapter XXVIII of his book An Abridgment of All Sea-Lawes[20] (1613) and later on with the book De dominio maris juribusque ad dominium precipuè spectantibus assertio brevis ac methodica[21] (1615).  In any case, replies came from all over Europe, being the best crafted the one of the Portuguese Fray Serafín de Freitas De Justo Imperio Lusitanorum Asiatico, which earned the following description: “L’ouvrage est remarquable; l’auteur défend avec un rare talent une mauvaise cause[22].

The controversy that captured the mind of scholars centers in the opposing doctrines of Grotius and Selden and it is until now the most celebrated and quoted as giving birth to the adversarial forces that shaped modern Law of the Sea into a balance between the freedom of the seas and the power of coastal states.

States (any form thereof) decided over that extension of sea that was under their control that Grotius had recognized as an exception to the freedom of the seas. 

The original dimension referred by Sassoferrato was two days of navigation, distance that amounts to a hundred miles (1478 meters), opinion that Gentili supported.  Grotius, on the other hand, expounded in Mare Liberum, a choice for the reach of the human eye, capacity that according to what the practice evidences, was different from nation to nation, as it was calculated and claimed 21, 14 or 15 miles (England and France, Scotland, and The Netherlands correspondingly). 

However, the criterion that emerged triumphant was expressed by Grotius, in his most celebrated work De Iure Belli Ac Pacis, where he propounds that the width of that strip of sea should be restricted to the capacity of the coastal state to exercise an effective control over it[23].

As a maxim, Grotius rule needed to be translated into practical terms, and it was finally made by another Dutch writer, Cornelius van Bynkershoek who, in his book De Dominio Maris Dissertatio (1703) states that such control necessarily depends on the effective range of the weapons of the kingdom: “…Terræ potestas finitur ubi finitur armorum vis”[24].  Although it is contested[25], most scholars attribute the determination of the range of the cannon shot in those times to the Italian Ferdinand Galiani[26], who measured it at three nautical miles or a league (although the Scandinavian Countries used a league of 4 miles or “German league”[27]).

States quickly established a practice on their maritime claims[28] based on the “cannon shot rule” or similar.  Treaties[29] were concluded between powers paying due regard to it and as such it survived until the XXth Century.

Inevitably, claims were not uniform and sooner rather than later States found different reasons to justify different widths to claim as i.e. protection zones, neutrality zones, customs zones, fishing zones, and the list goes on[30].

1.3.        A Need For Uniformity: Unilateralism And The Conferences Of The XXth Century

1.3.1.      The Hague Conference of 1930

By the 1920’s the League of Nations identified that the lack of uniformity and the growing claims related to maritime territories presented huge risks to peace and stability.  Following the premise that codification of International Law would help avoid conflict, preparatory works commenced around 1924[31] and called for a conference for the progressive codification of international law in 1930, in The Hague[32].  Together with subjects like problems of nationality and State responsibility, the issue of territorial waters was taken into account and finally dealt by the second commission of the conference[33]

Due to the strong fragmentation of the 48 participating States’ position, no agreement was reached with regards to the width of the territorial sea.  Nevertheless, the above evidenced that the so-called “three mile rule” was not a uniform rule at all[34].  It is under these conditions that the world entered the II World War.

1.3.2.      Truman’s Effect

The 28th of September 1945, President Truman published Presidential Proclaims 2667 & 2668, the first one dealing with the Continental Shelf and the second one with offshore fishing resources.  The effect of the combined interpretation of both proclaims by other states possibly was the main thrust for the change that the Law of the Sea experienced in the next decade.

Through the first one of the proclaims, President Truman made a claim over the offshore subsoil mineral resources beyond the three nautical miles that the United States of America traditionally claimed as Territorial Sea.  This was seen as a sovereignty claim over the whole of the continental shelf itself (and not the resources) by, especially, the Latin American countries and led to a wave of claims which were inaugurated by Mexico (1945) and followed by Argentina & Panama (1946) Costa Rica (1948), Honduras & Brazil (1950), Nicaragua (1961) and Uruguay (1969), all based on the US assertion[35].

It is also worth highlighting the claims made by the South Pacific countries in 1947, namely the Chilean and Peruvian claims[36], which reached the 200 nautical miles expressly and by 1952 gave way to the first treaty around that number[37], the South Pacific Permanent Commission (or CPPS[38]), being the main precedent to the Exclusive Economic Zone figure that arose in the United Nations Convention on the Law of the Sea (UNCLOS) in 1982.

Several other national claims were subsequently made, again, concentrating in Latin America.  A number of important regional conferences dealt with the issues of the different maritime claims regarding the Territorial Sea and the Continental Shelf, as well as the emerging “epicontinental sea” or “patrimonial sea[39].

1.3.3.      The 1958 United Nations Conference

After the failed attempt of the Hague Conference of 1930 to regulate the “territorial waters” question, and the failure of the League of Nations itself, it was to the United Nations to pick up the unfinished business of its predecessor, particularly in the view of the massive number of uneven claims that arose after 1945.

In compliance with Article 13 of the United Nations Charter[40], the International Law Commission (ILC) was set up in 1947 and by 1949 a list of issues to be dealt with was in place.  Without delay, the issues of the Territorial Sea and the High Seas were identified to be priorities and as such work was done; this concluded in 1956, when a draft[41] containing 73 articles with corresponding comments was released.

A diplomatic conference was convened and gathered from the 24th of February to the 27th of April 1958 in Geneva, to discuss the draft articles prepared by the ILC.  The result of that meeting were four conventions on: a) the Territorial Sea and Contiguous Zone[42], b) the Continental Shelf[43], c) the High Seas[44], d) fishing and conservation of the living resources of the High Seas[45], and the Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes[46].

Most of the contents[47] of the four conventions were a mere codification of the current evolution of the Law of the Sea so far.  Despite the success in bringing uniformity in many aspects of the law (which has outlasted the conventions themselves) no agreement was reached in the important issue of the breadth of the Territorial Sea. Another major failure that has been attributed to the Conference was its fractioned approach by concluding separate conventions instead of a single holistic instrument as envisaged by the ILC.  That situation allowed states to benefit of acceding only to one or more of the Geneva Conventions and exclude those that were against their interest, the settlement of disputes being the most compromised section.

However, the Optional Protocol did enter into force in 1962 and has 38 parties[48].  It provides compulsory jurisdiction to the International Court of Justice with regards to any of the four Geneva Conventions (with exception to Articles 4-8 of the Convention on Fishing and Conservation of the Living Resources of the High Seas, to which Articles 9-12 are applicable). The protocol also provides for the option of resorting to Arbitration (Article III) or Conciliation (IV) within the period of two months after the notification of the existence of a dispute to the other party.


 1.3.4.      The 1960 United Nations Conference

Following the erroneous idea that two years would be enough time span to fix the short comings of the previous Conference, the United Nations convened a new diplomatic conference on the Law of the Sea, again in Geneva, from 17th of March to the 26 of April 1960[49], which worked with no preparatory background and in a single committee[50].

Being its main goal to find consensus with regards to the breadth of the Territorial Sea and now the Fisheries claims, the Conference was again a failure, although the proposal of adopting a 6 mile Territorial Sea plus a 6 mile Fishing Zone ended up just one vote away of being approved[51].

1.4.        A Constitution for the Oceans

1.4.1.      The Maltese Trigger

1967 will be remembered as the year where the Ambassador to a newly independent small island state impelled the General Assembly of the United Nations into what would be the biggest negotiation process in diplomatic history: Arvid Pardo, from Malta delivered his notable speech[52] about the riches of the ocean’s deep floor and how those should be designated as a common heritage of mankind.  What in practice happened was the beginning of the revolution of the Law of the Sea.

Almost immediately a special committee was set to study the peaceful uses of the oceans’ floors.  The former quickly became a Commission and in a few years went from its original 35 members to 86. It gave to the General Assembly the “Moratorium Resolution”[53] which the latter approved in December 17th 1970 the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction[54].

The General Assembly convenes a diplomatic conference to deal with all issues of the Law of the Sea and asks the aforementioned Commission to do the preparatory works.

1.4.2.      The Third United Nations Conference on the Law of The Sea

The Conference[55] was convened for a first session in 1973 in New York.  The work begun on the basis of a preliminary list of subjects prepared by the preparatory commission, rendering the exercise a creative one, and not one of discussion and approval of a previously arranged draft, as was the case of the 1958 Conference.

The Conference worked on four commissions that dealt separately with all issues now included in the UNCLOS.  The fourth of those commissions was the one dealing with the settlement of disputes provisions.  The mechanism to take decisions was agreed on a three tier process: firstly, consensus, secondly, a period of reflection, and thirdly, a qualified majority vote[56].  Only once there was a need to recur to vote and it was on the final approval of the Convention itself.

The Conference met from 1973 until 1982 and most of the years it met twice, making the conference the longest diplomatic effort to conclude an international instrument.

Finally, the Conference adopted a text composed by 320 articles divided in 17 Parts, complemented by 9 Annexes (88 Articles) and 4 Resolutions all which form an integral part of the Convention, without the general possibility to make reservations[57], as the text was devised as a “package deal” due to the serious exercise of balance of compromises made by the different negotiating states.



[1] See Anand, R. P.  Origin and Development of the Law of the Sea. Martinus Nijhoff Publishers, The Hague 1982.
[2] Particular reference must be made to the Arthashastra, by Kautilya and the Code of Manu, both product of the wisdom accrued in the Indian Continent between 3rd and 2nd centuries B.C. See supra.
[3] See Tetley, William The General Maritime Law – The Lex Maritima. Syracuse Journal of International Law and Commerce Vol. 20 (1994) P.105
[4] In particular those in the Instituta – DigestSee. García del Corral, D. Idelfonso L. Cuerpo del derecho civil romano. Primera parte: Instituta- Digesto. Libro II, título II “De la Instituta del Señor Justiniano”. P. 30
[5] See Clingan, Thomas A. The Law of the Sea, Ocean Law and Policy. Austin & Winfield 1994. P.11 and De Pauw, Frans Grotius and the Law of the Sea Tr. Arthern, P.J. Université de Bruxelles, Institut de Sociologie, 1965. P.7
[6] Gomez Robledo, Antonio  Fundadores del Derecho Internacional.  UNAM, México 1989 P.125
[7] The annual ceremony Sposalizio del Mare symbolized that relationship, whereby the Doge of Venice would throw a ring into the sea while expressing the following formula: Desponsamus te, mare. In signum veri perpetuique dominii N.A.
[8] De Pauw. Op. Cit. P. 9-13
[9] Full image of the original kept by the Spanish Historical Archives at : http://www.mcu.es/archivos/docs/Documento_Tratado_Tordesillas.pdf Last visited July 20th 2010
[10] A translation to English available at http://www.catholic-forum.com/saints/pope0214a.htm ; last visited July 20th 2010
[12] See Ortega Gaytán, Jorge Antonio Los Marinos. CEDHIM Guatemala 2005 P.107-109
[13] The incident is described in Zemanek, Karl. Was Hugo Grotius really in favour of the freedom of the seas? Journal of the History of International Law Vol 1 (1999) Kluwer Law International Law P.49
[14] Chronology of the publications available at the introductory note by James Brown Scott to the Mare Liberum Translation by Ralph Van Deman Magoffin, published by the Carneige Endowment for International Peace in 1916.  Full book available at http://files.libertyfund.org/files/552/0049_Bk.pdf Last visited July 20th 2010
[15] Many critics agree that Grotius’ Mare Liberum is a systematic exposition of the writings of Francisco de Vitoria and Fernando Vázquez de Menchaca, as well as others like Alberico Gentili, Bártolo de Sassoferrato, Luis de Molina, Baldo de Ubaldis inter alia.  A description of their writings and influence in the development of the Law of the Sea (in Spanish) in Ortega Lemus, Lesther Antonio Elementos para la delimitación maritima de Guatemala en el Mar Caribe USAC Guatemala 2007 P.21-34 available at:  http://docs.google.com/leaf?id=0B1_W1-ytb_vFMDE0MjA0NjYtZGRmZi00OWJjLThjYWEtZTkxZWFhOTkyY2Zm&sort=name&layout=list&num=50
[16] Grotius, Hugo.  The Freedom of the Seas .  Carnegie Endowment for International Peace. Oxford University Press 1916. P.37
[17] It is the opinion of the undersigning author, as well as a few others that the first reference to the Territorial Sea was made by Bártolo de Sassoferrato in his opus De Fluminibus seu Tyberiadis et alluvione dated 1355 (pari modo / mare vicinum).  See Ortega Lemus Op. Cit. P.22-23
[18] Full book in English available at http://gallica.bnf.fr/ark:/12148/bpt6k93658h.r=.langEN Last visited July 20th 2010
[19] It must be highlighted that Grotius wrote a reply to that first work of Welwod, but did not publish it. An English translation of the said is available at http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=859&layout=html#chapter_66189 Last visit July 20th 2010
[20] Full book available at http://gallica.bnf.fr/ark:/12148/bpt6k93680p.r=.langFR Last visited July 20th 2010
[21] Full book available at http://gallica.bnf.fr/ark:/12148/bpt6k95967s.r=.langFR Last visited July 20th 2010
[22] Nys, Ernest.  Les origines du droit international.  A. Castaigne.  Bruxelles (1894) P.383  Book available at http://gallica.bnf.fr/ark:/12148/bpt6k24370b.image.langFR.f1.pagination Last visited July 20th 2010
[23] Grotius, Hugo  The Rights of War and Peace.  Trans. A.C. Campbell.  M. Walter Dunne Publisher 1901  P.104 Full book available at http://files.libertyfund.org/files/553/0138_Bk.pdf Last visited July 20th 2010
[24] Bynkershoek, Cornelius van.  De dominio maris dissertatio.  Carnegie Endowment for International Peace. Oxford University Press 1923.
[25] Heinzen, Bernard G. The Three-Mile Limit: Preserving the Freedom of the Seas  Stanford Law Review, Vol. 11 No. 4 (1959) P.616
[26] Galiani, Ferdinand De’ doveri de’ principi neutrali verso i principiguerreggianti, e di questri verso i neutrali; libro due.  Full book available at http://gallica.bnf.fr/ark:/12148/bpt6k93706j Last visited July 20th 2010
[27] Heinzen.  Op. Cit. P.618
[28] Ibíd.
[29] Ortega Lemus. Op. Cit. P.51
[30] Ibíd. P.51-55
[31] American Society of International Law.   United Nations Documents on the Development and Codification of International Law.  Supplement to American Journal of International Law, Vol. 41 No. 4 (1947) P.67-80
[32] Miller, Hunter.  The Hague Codification Conference.  The American Journal of International Law, Vol. 24 (1930) P.674-693
[33] Ortega Lemus.  Op. Cit. P.57
[34] Ibíd.
[35] Ortega Lemus. Op. Cit. P.63-65
[36] Székely, Alberto.  Derecho del Mar.  UNAM 1991 P.16
[37] Ortega Lemus.  Op. Cit. P.68
[39] Ortega Lemus. Op. Cit. 68-74
[40] United Nations Department of Public Information.  Charter of the United Nations and Statute of the International Court of Justice.
[41] United Nations. Yearbook of the International Law Commission, 1956, Vol. II P. 265-301
[42] Convention on the Territorial Sea and Contiguous Zone. Available at United Nations Treaty Collection: http://treaties.un.org/doc/Publication/UNTS/Volume%20516/volume-516-I-7477-English.pdf
[43] Convention on the Continental Shelf.  Available at the United Nations Treaty Collection: http://treaties.un.org/doc/Publication/UNTS/Volume%20499/volume-499-I-7302-English.pdf
[44] Convention on the High Seas. Available at the United Nations Treaty Collection: http://treaties.un.org/doc/Publication/UNTS/Volume%20450/volume-450-I-6465-English.pdf
[45] Convention on Fishing and Conservation of the Living Resources of the High Seas.  Available at the United Nations Treaty Collectionn: http://treaties.un.org/doc/Publication/UNTS/Volume%20559/volume-559-I-8164-English.pdf
[46] Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes.  Available at the United Nations Treaty Collection: http://treaties.un.org/doc/Publication/UNTS/Volume%20450/volume-450-I-6466-English.pdf
[47] For a detailed discussion of the precedent works, the Conference and the structure and contents of the Geneva Conventions of 1958 see Ortega Lemus Op. Cit. P.74-100
[49] Meseguer Sánchez, José Luís.  Los espacios marítimos en el nuevo derecho del mar.  Madrid, España: Marcial Pons Ediciones Jurídicas y Sociales, S.A., 1999. P.35
[50] Ortega Lemus.  Op. Cit. P.101
[51] Thus, it was confirmed by then that the “three-mile-rule” was a fallen idol: Gilbert Le Droit International Public de la Mer Vol. III P.468
[52] A copy of the famous speech is available at:  https://docs.google.com/leaf?id=0B1_W1-ytb_vFYzk2ZWY2ZDUtZGYyZC00OThhLWI5NWUtODQ1YmUzMTAzYjc4&sort=name&layout=list&num=50 The undersigning author wishes to express his gratitude to Prof. Dr. David Attard for providing him with a copy of Ambassador Pardo’s speech.
[53] UN General Assembly Resolution 2574 (XXIV), 15th December 1969.  Available at http://daccess-ods.un.org/TMP/958431.4.html
[54] UN General Assembly Resolution 2749 (XXV), 17th December 1970.  Available at http://daccess-ods.un.org/TMP/7240948.html
[55] A detailed description of the Conference and its products available at Ortega Lemus Op. Cit. P.118-135
[56] Erasmus, Gerhard  Dispute Settlement in the Law of the Sea. P.21 in Acta Juridica 15 (1986)
[57] Article 309 of the Convention precludes Parties to use Reservations unless specifically provided by the Convention itself (e.g. Article 298 that provides for “exceptions” to the compulsory settlement of disputes mechanisms)


Lesther Antonio Ortega Lemus

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