Introduction

Law of the sea is also known as Maritime law which is that branch of public International
Law which regulates the rights and duties concerning the regulation of states with respect to
the sea. It governs the legal rules regarding ships and shipping. It is one of the principal
subjects of international law and is a mixture of the treaty and established or emerging
customary law.
The law of the sea forms the basis of conducting maritime economic activities, the
codification of navigation rules and to protect oceans from abuse of power. It covers rights,
freedoms and obligations in areas such as territorial seas and waters and the high seas,
fishing, wrecks and cultural heritage, protection of the marine environment and dispute
settlement.

Freedom of the Open Sea:

History and Development:
A conviction had grown in the beginning of the 15th Century that States could extend their
sovereignty over certain parts of the Open Sea. In 1493, the Pope Alexander VI, divided the
New World into two halves one to the Portuguese & the other to Spaniards. Inspired by this,
Spain claimed a major portion : in Pacific & the Gulf of Mexico and Portugal claimed
sovereignty over the whole of the Indian Ocean. Great Britian had claimed the North Sea, the
Narrow Seas,'& the Atlantic.
These claims were not merely formal. Many ceremonials were in vogue. To fish in North
Sea, the party was to take out Licenses from the U.K. & when in 1636 the Dutch attempted to
fish, it was compelled to pay penalty. When Phillip II of Spain was coming to England to
marry Queen Mary, the British Admiral fired at his ship in 'British Sea' as he did not lower
his flag, in honour of the English Flag !
In 1580, the Spanish Ambassador in England, Mendoza, lodged a complaint with Queen
Elizabeth, against Drake, who had made a successful journey to the Pacific. Elizabeth
declared that vessels of all nations could navigate on the Pacific Ocean sinces the sea and the
air were common to all. This was the germ, out of which grew the freedom of the Open Sea.
In 1609 Grotius wrote his 'Mare Liberum' (12th Chapter of De Jure Belliac Pacis)
commending the freedom of the Open Sea. John Selden attacked Grotius and wrote his 'Mare
closum' commending the closed seas concept, but this failed

The genesis of Law of Sea

Grotius also known as the father of modern International law, led to the formulation of
maritime law which is one of the recently developed branches of International Law. During
the 17th century, the doctrine of “freedom-of-the-seas” emerged wherein it was considered
that the seas were free to all nations but belonged to none of them. The Law of the sea has
always been in a state of flux, changing and creating a new regime as per the state’s own will.
There existed certain tension between “the free sea” and “the closed sea” which waned for
centuries, generally with the powerful states arguing that the sea was free to all, and the
smaller States arguing for transnational limitations on what maritime powers could do to
navigate the oceans and exploit their resources.
It was during the 20th century due to vast development in the technology and the commerce
department, many nations began to make jurisdictional claims so that they could protect their
interest and the gradual enlargement of territorial sea initiated the need for the codification of
the law to create uniformity.
Over a series of discussions and conferences, four conventions on the law of seas evolved in
1958, namely called Geneva convention on the law of sea developed but the conventions
failed to address several issues like the urgent need to regulate the usage of minerals of the
deep-sea beds and high sea.
In 1982, the third UN conference adopted the Convention on the Law of the Sea
(UNCLOS) consisting of 320 articles and 9 Annexes, along with 4 resolution. A significant
portion of the convention was a replica of the old Geneva convention however several new
factors were also dictated which are as follows:
 It expanded the scope regarding the matters of the new legal regime of the deep
sea bed and economic zones.
 The territorial sea now extended up to 12 nautical miles limit.
 In cases of dispute, the convention provides compulsory judicial settlement at the
request of one of the parties.
 The convention also describes the formation of an international tribunal of the law
of the sea for helping in settlements of disputes.
 The convention also deals with the regime of archipelagic states, the waters
between the islands are declared archipelagic waters, where ships of all States
enjoy the right of innocent passage.

Major Maritime zones along with the rights and duties provided under the specific zones

Territorial seas
This is the traditional Canon-Shot or the Maritime Belt Rule. The Origin of this can be traced
to Bynkershoeck (an ardent follower of Hugo Grotius). In 1702 he published his work 'Essay
on Sovereignty over the Sea', in which he commended that the Maritime State could
dominate only such width of the Maritime waters as lay within the range of a Canon-Shot
from the shore batteries. He was the first jurist to enunciate this in terms of Canon Shot. In
later years, the range was fixed at the instance of a military expert of those days called
Galiani. He stated that the maximum range for the Canon Shot was 3 miles from the shore.

It is that part of the sea which is directly next to the coastline and bounded by the high seas.
Article 2 of the Geneva Convention on the Territorial Sea and UNCLOS Article 3 both
express that states exercise sovereignty over this zone subject to the provisions of the
respective conventions and other rules of international law. This was intended to highlight
that the limitations upon sovereignty in this area set out in the Convention are non-
exhaustive. The territorial sea forms an undeniable part of the land territory to which it is
bound so that a cession of land will automatically include any band of territorial waters.

According to UNCLOS, it is believed that every coastal state has Territorial sea. The
sovereignty of the coastal state extends to the seabed and subsoil of the territorial sea and the
airspace above it. The coastal States exercise a wide variety of exclusive power over the
territorial sea which depends largely on the municipal law rather the international system.
Coastal states can control the entry of foreign vessels from trading or fishing activities to
preserve it for their own citizens.

a. Width of the Territorial sea

Width of the territorial sea up to which the states can exercise sovereignty has been subjected
to a long line of historical development. Initially, it started with the “cannon-shot” rule
wherein it stated that width requirement in terms of the range of shore-based artillery,
however during the 19th century it changed to 3-mile rule by the Scandinavians claimed 4
miles.
THE CONTROVERSY REGARDING THE WIDTH OF THE MARITIME BELT
The powerful maritime States today support a three-mile limit on the maritime belt, whereas
other States like Norway, Sweden, Spain and Portugal claim that the range of maritime belt
must be much wider. The minimum limit of three-mile rule can be taken to have found
universal acceptance, but regarding the maximum width of the belt, there does not seem to be
any unanimity. The Hague Codification Conference of 1930 could arrive at no definite
agreement on the breadth of the belt as some States vehemently opposed it.
Subsequently, the International Law Commission examined the problem of the width of the
maritime belt and its draft proposal came to be examined by the Conference of the States,
known as the International Law Conference on the law if the sea, held at Geneva in 1958.
This Conference, attended by 87 nations, revealed an utter lack of unanimity amongst the
nations regarding the width of the maritime belt. The powerful maritime States insisted that
the limit must be three miles, whereas certain South American nations claimed that the
maritime belt should extend to 200 miles in width. With varying views on the width of the
maritime belt, the following two principles seem to have emerged from the Conference:
(i) the maximum width of a maritime belt must be 12 miles
(ii) the minimum width of a maritime belt must be three miles

The limit to exercise jurisdiction over the territorial sea became clear only after the first
world war, Article 3 of the 1982 Convention, however, notes that all states have the right to
establish the breadth of the territorial sea up to a limit not exceeding 12 nautical miles from
the baselines. This is clearly in line with state practice. For determining the measurement of
this range two methods have been laid down which are as follows:

Low water line method and Straight Baseline method:

It was the Anglo Norwegian Fisheries case which propounded the principle regarding the
determination of the baseline w.r.t geographical realities.
In this case, Norway, by its Decree of July 1938, defined its fishing zone by reference to a
base line, draw through 48 selected points on the main land or islands or rocks at a
considerable distance from the main land. The sea, enclosed by these lines and a line parallel
to those lines at a distance of four miles, were to constitute the zone. The result of this
definition in the decree was that large stretches of sea came to be claimed as the territorial
waters of Norway, and other States were excluded from exercising rights of fishing. Great
Britain claimed that this definition of the base line was contrary to international law. The
dispute of the base line was referred to the International Court of Justice. The Court held by a
majority that Norway’s definition of baseline was not inconsistent with international law.
This view was based mainly on the fact that, traditionally, the waters covered by the decree of
Norway, were an exclusive preserve of Norwegian fisherman, and that the lengths fixed by
the decree were reasonable.

According to Starke, the three main points laid down in the Anglo-Norwegian Fisheries case
are the following:
(i) Provided that the littoral State can satisfy an international tribunal of the reasonableness
and justice of defining the territorial sea by reference to base lines, and provided further that
it has not acted arbitrarily, this method may be followed.
(ii) Such base lines need not be drawn parallel to the low-water mark on the coast, so long as
the general direction of the shore is followed.
(iii) The waters of bays and gulfs may be deemed part of the territorial waters
notwithstanding that the distance between the headlands is greater than ten miles.

b. The Right of Innocent Passage

The right of foreign merchant ships (as distinct from warships) to pass unhindered through
the territorial sea of coast has long been an accepted principle in customary international law,
the sovereignty of the coast state notwithstanding.

UNCLOS in its Article 19 provides for an exhaustive list of activities for which the passage is
considered as innocent, the main factor to keep in mind is peace, good order, or security of
the coastal State. Article 24 prohibits coastal States from hampering the innocent passage of
foreign ships through the territorial sea unless specifically authorized by other Articles of the
LOSC.

Discrimination among other states or cargoes is prohibited for the Coastal States, however,
when it is found to be that any foreign Ship has committed any violation of the aforesaid rule
of the convention, the coastal states have the power to forbid entry of such ship or take any
measures as they deem necessary for their security.

c. Jurisdiction
The 'Territorial Waters' is an area over which the maritime State has exclusive sovereign
rights. Sometimes jurisdiction is extended. The leading case - Lotus Case decided by P.C.I.J
in 1927. A French, Steamer, the LOTUS, collided with a Turkish Vessel on the high seas due
to gross negligence of officer of Lotus. The Turkish vessel sank, and 8 Turkish nationals
died. Turkey based its claim on the ground that the negligence on board Lotus, had its effect
on Turkish vessel & hence, on a portion of Turkish territory. Held, Turkey was entitled to
succeed.

a) The Maritime State has exclusive fishery rights and also it may reserve its right of
cabotage (to navigate between two ports of the Maritime State itself)

b) The Maritime State has sovereignty over the surface, the subsoil, and" the super incumbent
air space (1958 convention).

c) There is a customary rule of International law of allowing 'innocent passage' through the
territorial waters. (Recognised & defined by the 1958 convention).

d) The Maritime State has exclusive jurisdiction- Civil, Administrative, Sanitation, Custom
and Criminal. However, in respect of foreign vessels passing through territorial water the
jurisdiction is limited as per the convention of 1958.

The leading case is the Corfu Channel case 1949.

Facts were: Mines had been laid within the territorial belt of Albania during October 1946.
British Vessel passing through the belt, struck the mine on 22 nd Oct. 46 & was damaged.
Subsequently, the British Govt. on, 13 th November Conducted the mine sweeping operations.
It sued Albania for damages contending that Albania was responsible or had knowledge
about the mines.
The I.C.J. held (i) Albania was liable & (ii) U.K. has violated Albania's sovereignty, as she
has' swept the mines without Albania's permission.

e) Right to 'hot pursuit', (to-chase and seize a vessel that has isolated the Maritime laws of a
State) is recognised. But this ends when the vessel enters the territorial waters of any other
State.
' Leading Case 'The I am alone' (Canada V.U.S.). 'I am alone', a British vessel (Regd. in
Canada) was suspected of smuggling liquor within 10 miles off U.S. coast (L'ouisiania)
"Wolcot" & later another vessel Dexter set out to seize her & hence made a hot chase. Both
were able to reach at a distance of 200- miles off the coast. They gave warning, but later fired
at. The men on deck died & it was sunk. Commissioners were appointed to decide
(i) the right of hot pursuit (ii) Whether sinking was justified.

Held, U.S. had the right of hot pursuit & could use reasonable force to bring to port the
suspected vessel. But sinking in this case was not reasonable force, and hence illegal. The
1924 Convention between U.K. & U.S. discussed and as International Law does not
recognise use of unreasonable force. U.S. was guilty & 25,000 dollars were awarded as
compensation to the
families of persons who died.

The Geneva Conference of 1958 on the Law of the Sea adopted a convention on the territorial
sea, based on the draft article of the International Law Commission. The following principles
were laid down in the Convention:
(a) The normal base line for measuring the breadth f the territorial sea is the low water line
along the coast
(b) In localities where the coast line is deeply indented or cut, or if there is a fringe of islands
along the coast in its immediate vicinity, the method of straight base line adjoining the
appropriate points may be implied
© Where the method of straight base line is applicable, an account may be taken of the
economic interest peculiar to the region concerned, the reality and importance of which are
clearly evidenced by a long usage.
(d) The drawing of such base line must not depart to any appreciable extent from the general
direction of the coast, and the seas lying within the lines must be sufficiently closely linked to
the land domain.
(e) The system of straight base line may not be applied in such a way as to cut off the
territorial sea of another State from the high seas.

Other aspects of the territorial sea are

Internal water
As per Article 8 of UNCLOS, internal waters include that part of the sea which does not
belong to either the high seas or the territorial rather covers all the waterways on the
landward side of the baseline. One of the major differences between the Territorial sea and
the internal water is that there exists no right of innocent passage in case of the former.

Bays
Bays are one of the major complex issues under maritime laws, it may enclose a line which
leaves internal waters on its landward side and provides a baseline for delimiting the
territorial sea.
Islands
The 1958 convention defines Islands consist of a naturally formed area of land, surrounded
by water, which is above water at high tide. These islands are capable of forming continental
shelf zone, Exclusive Economic zone, Contiguous zone, territorial sea zone however if there
is no habitat capable of surviving on an island it may not form EEZ. Where there exists a
chain of islands which are less than 24 miles apart, a continuous band of the territorial sea
may be generated.

Archipelagic states: Group of Islands

The states having above such characteristics has sovereignty over the waters enclosed by the
baselines subject to limitations created by the provisions of this Part of the convention. These
limitations consist of the right of innocent passage for ships of all states, and, unless the
archipelagic state designates sea lanes and air routes, the right of archipelagic sea lanes
passage through the routes normally used for international navigation.

Contiguous zone
The doctrine of contiguous zone is closely connected with the concept of territorial sea or
maritime belt in international law. States which felt that the 3-mile territorial sea did not
provide adequate safeguards to the specific interests of the coastal state (in particular to its
revenue and health regulations) have claimed jurisdiction and control over some additional
“contiguous zone” in which limited powers of control could be exercised. The Geneva
Conference adopted a convention on the contiguous zone. Paragraph 2 of Article 24 or Part II
of the Convention on the territorial sea, limits the extent of the contiguous zone to twelve
miles from the base line from which the breadth of the territorial sea is measured.
Part 1 of Article 24 of the Convention provides that in a zone of the high seas contiguous to
the territorial sea. The coastal State may exercise the control necessary to prevent and punish
the infringement of its customs, immigration, fiscal or sanitary regulations.
It must be noted that coastal State has no sovereignty over the contiguous zone. This is the
difference between the contiguous zone and the territorial sea. Over the contiguous zone, the
State exercises the control necessary for the purpose mentioned above, but it exercises no
jurisdiction, in the words of Sir Gerald Fitzamaurice, ‘the power is primarily that of the
policemen, rather than of the administrator or the judge.’

Thus it can be concluded that contiguous zone is that part of the sea which is located beyond
and adjacent to the territorial waters of the coastal states. The development of this zone arose
due to the need of the state to strengthen its regulation over the territorial sea.

It extends up to 12 nautical miles from the territorial sea, the object of this zone is only for
certain purposes as provided in the article 24 of the convention like to prevent infringement
of customs, immigration or sanitary laws of the coastal state, or to conserve fishing stocks in
a particular area, or to enable the coastal state to have exclusive or principal rights to the
resources of the proclaimed zone. The formation of this zone is only for special purposes as
prescribed in the convention, it does not provide any air and space rights to the states.

Continental Shelf

This zone arose due to the concept of Geography wherein as per 1982 convention, it includes
a natural seaward extension of a land boundary. This seaward extension is geologically
formed as the seabed slopes away from the coast, typically consisting of a gradual slope (the
continental shelf proper), followed by a steep slope (the continental slope), and then a more
gradual slope leading to the deep seabed floor. The limit up to which its length extends up to
200 nautical miles.

These three areas, collectively known as the continental margin, are rich in natural resources,
including oil, natural gas and certain minerals.

The coastal states exercise an extensive sovereign-rights over this zone for the purpose of
exploiting its resources. The coastal state may, under article 80 of the 1982 Convention,
construct and maintain installations and other devices necessary for exploration on the
continental shelf and is entitled to establish safety zones around such installations to a limit of
500 metres, which must be respected by ships of all nationalities.

However, there are certain problems associated with the continental shelf as follows:
(1) the delimitation of the contingent shelf
(2) the nature of the rights of the coastal State over the shelf
(3) the status of the superjacent waters
(4) the right of the coastal states to lay down submarine cables and to raise constructions and
installations
(5) where two or more States are contiguous to the same continental shelf – the boundary of
division.
These questions have not been as yet satisfactorily answered by definite rules of international
law. However, the Geneva Conference of 1959 on the Law of the Seas adopted a Convention
on the Continental shelf based on the draft articles prepared by the International Law
Commission. The Geneva Convention defines the Continental Shelf as follows:
(a) to the seabed and subsoil of the submarine areas adjacent to the coast, but outside the area
of the territorial sea, to a depth of 200 metres or beyond that limit, to where the depth of the
suprajacent waters admits of the exploitation of the natural resources of the said areas
(b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

The Convention further adopted the following rules regarding the continental shelf:
(i) The coastal state exercises, over the continental shelf, sovereign rights for the purpose of
exploring it and exploiting its natural resources. Such rights are the exclusive rights of the
coastal State.
(ii) The rights of the coastal State over the continental shelf do not affect the legal status of
the superjacent waters as high seas or that of the air-space above that water.
(iii) Such exploitation or exploration of the natural resources must not result in any
unjustifiable interference with navigation, fishing or the conservation of the living resources
of the sea.
(4,5,6,7 copy from jhabwala page 108)

Exclusive Economic Zone (EEZ)

The object for this zone arose due to controversy regarding fishing zones. Due to a lack of
regulation of limit regarding fishing zone, states began to claim the wide depth of region
under this zone. In the case of Tunisia vs Libya, the court regarded that the concept of
Exclusive Economic Zone can be associated as a part of Customary International Law.
Article 55 of the UNCLOS describes the extension of this region from the baseline is up to
200 nautical miles from the breadth of the territorial sea.
In the case of Coastal states as per article 56 of the convention, these states have sovereign
rights over the Exclusive Economic Zone for the purpose like:

Exploiting and exploring, conserving and managing natural resources

For the establishment of an artificial island, Marine Scientific research

iii. Other rights as specified in part IV of the convention.

In case of other states, it provides rights and duties of that which can be compared to the high
seas such as freedom of navigation, laying of pipelines and submarine cables, they have to
keep in mind the rights and duties of Coastal states during the exercise of their own power.

EEZ and Continental shelf is almost similar in nature however the major point of difference
between the two is that under the 1982 convention a continental shelf can exist without an
EEZ but there cannot be an EEZ without the demarcation of the Continental shelf.

a. Delimitation of the continental shelf

The measurement of the range of this zone has led to several controversies and a long line of
legal custom that has led to the need for the evolution of this concept. In the case of
Nicaragua vs Honduras, the international court has dictated on the importance of the
establishment of a maritime boundary.

The concept of the median line has been used to determine the delimitation of the territorial
sea within the opposite and the adjacent coast. Initially, the issue was taken up in the North
Sea Continental Shelf cases, wherein the Court took the view that delimitation was based
upon consideration and weighing of relevant factors in order to produce an equitable result.

Later, in the case of Libya Vs Malta, the Court emphasised the close relationship between
continental shelf and economic zone delimitations and held that the appropriate methodology
was first to provisionally draw an equidistant line and then to consider whether circumstances
existed which must lead to an adjustment of that line.

High Seas and Deep Ocean Floor

This includes that region of the sea which exists beyond the EEZ and does not form part of
the territorial sea. The essence of this region is that no state acquires any sovereign right over
this zone. As per the Article 87 of the 1982 Convention, high seas are open to all states and
that the freedom of the high seas is exercised under the conditions laid down in the
Convention and by other rules of international law. The jurisdictional right in case of high
seas depends upon the nationality of the ship, and the consequent jurisdiction of the flag state
over the ship.

It is for the flag state to determine rules and regulations therefore a ship without a flag will be
excluded from the privilege under this zone. This was also highlighted by the Permanent
Court of International Justice in the Lotus case, where it was held that ‘vessels on the high
seas are subject to no authority except that of the state whose flag they fly.’

Conclusion
Law of the sea is concerned with public order at sea which has been codified in the form of
United Nations Convention on the Law of the Sea and signed on December 10, 1982. It
provides rules and regulations that helps to maintain peace and security over the usage of the
sea.

The code provides a set of comprehensive rules which divides the oceanic region into 5
maritime zones and it has set the limit to 12 nautical miles for the coastal states to exercise
their sovereignty without any conflict. It aims to resolve the dispute amicably with the help of
international tribunal for the law of the sea.