Control of offshore natural resources emerged as a central issue as regards the law of the sea after World War II. In particular, the increasing demand for petrol prompted coastal States to extend their jurisdiction over natural resources on the continental shelf. At the same time, in response to the depletion of marine living resources, claims on these resources on the high seas were increasingly advocated by the coastal States. In this context, on 28 September 1945, United States President Truman issued his Proclamations on the Continental Shelf and on Fisheries, respectively. The Truman Proclamations marked the starting point of the new development of the law of the sea.
Against that background, the ILC came to wrestle with the codification of the law of the sea. The ILC, established by the UN General Assembly in 1947, aims to promote the progressive development of international law and its codification. This body commenced its work on the codification of the law of the sea at its first session in 1949, and J. P. A. François was appointed as the special rapporteur on the regime of the high seas. In its eighth session in 1956, the ILC submitted its final report on ‘Articles Concerning the Law of the Sea’ to the UN. This report provided the basis for the work at the First UN Conference on the Law of the Sea (UNCLOS I).
UNCLOS I was convened in Geneva on 24 February 1958, and eighty-six States participated. UNCLOS I successfully adopted four conventions and an optional protocol on dispute settlement:
(i) The Convention on the Territorial Sea and the Contiguous Zone,
(ii) The Convention on the High Seas,
(iii) The Convention on Fishing and Conservation of the Living Resources of the High Seas,
(iv) The Convention on the Continental Shelf, and
(v) The Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes.
In addition, UNCLOS I adopted nine resolutions concerning nuclear tests on the high seas, pollution of the high seas by radioactive materials, fishery conservation, cooperation in conservation measures, human killing of marine life, coastal fisheries, historic waters, convening of a Second UN Conference on the Law of the Sea, and a tribute to the ILC.
A remarkable result of this Conference was that the traditional dualism in the oceans was established in the Geneva Conventions as lex scripta. Article 1 of the Convention on the High Seas stipulates:
The term ‘high seas’ means all parts of the sea that are not included in the territorial sea or in the internal waters of a State.
It follows that the 1958 Geneva Conventions divided the ocean into three basic categories: internal waters, territorial sea and high seas. Internal waters and the territorial sea are subject to the territorial sovereignty of the coastal States. This was clearly confirmed in Article 1 of the Geneva Convention on the Territorial Sea and the Contiguous Zone
(hereinafter the TSC):
The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.
At the same time, the freedom of the high seas, including that of fishing in the high seas, was explicitly laid down in Article 2(2) of the Geneva Convention on the High Seas. In light of its Preamble, this provision can be considered as a codification of customary international law.
Furthermore, the legal institution of the continental shelf was embodied in the Convention on the Continental Shelf. Under Article 1(1) of the Convention, the continental shelf is ‘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 superjacent waters admits of the exploitation of the natural resources of the said areas’. 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 airspace above those waters by virtue of Article 3. Accordingly, the continental shelf in the legal sense is part of the seabed and subsoil of the high seas.
It should also be noted that the contiguous zone, which may not extend beyond 12 miles from the baseline, was provided in the TSC. As appears from Article 24(1) of the TSC, ‘[i]n the zone of the high seas contiguous to its territorial sea’, the contiguous zone is part of the high seas.
Despite the valuable contributions at UNCLOS I, two key issues were left open. One issue concerns the maximum breadth of the territorial sea. As the territorial sea is under the territorial sovereignty of the coastal State, that State can monopolise natural resources there. In light of the increasing demand for marine resources, it was only natural that the breadth of the territorial sea became a serious issue at UNCLOS I. In this regard, all the countries of the Soviet and Arab blocs and most Asian, African and Latin American States favoured the 12-mile limit of the territorial sea, while many maritime States claimed that the 3-mile rule was the only rule under international law. In the end, the ILC had to recognise that international practice was not uniform as regards the traditional limitation of the territorial sea to 3 miles. As a consequence, no rule was adopted with respect to the breadth of the territorial sea. However, attention should be drawn to Article 24(2) of the TSC, which provides: The contiguous zone may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is measured.
Given that the contiguous zone lies outside the territorial sea, this provision would seem to signify that the breadth of the territorial sea could not exceed the maximum limit of 12 nautical miles under the TSC. The ILC took the view that international law did not justify an extension of the territorial sea beyond 12 miles, even though the ILC had taken no decision as to the breadth of the territorial sea up to the limit of 12 miles.
The second issue relates to a mechanism for peaceful settlement of international disputes. It is impossible, or at least very difficult, to formulate perfectly clear and detailed rules that do not give rise to disputes as to their interpretation and application. Hence, effective mechanisms for dispute settlement constitute an essential part of a treaty. At UNCLOS I, however, a compulsory mechanism of dispute settlement could be established only as a separate instrument owing to opposition by many States to the mechanism of settlement either by the ICJ or through arbitration. To date, only thirty-eight States have become parties to the Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes.
source: The International Law of the Sea, Yoshifumi Tanaka