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The United Nations Conference on the Law of the Sea, Geneva, 1958
Published online by Cambridge University Press: 21 May 2009
Extract
On the night of Sunday 27—Monday 28 April 1958, the curtain fell on a diplomatic performance on the Geneva scene which had lasted for nine weeks: the Conference on the Law of the Sea. Driving back to the hotel from the Palais des Nations one could not help comparing the result of this Conference held under the aegis of the United Nations with the corresponding section of its predecessor of 1930 at The Hague, organised by the League of Nations, and being struck by two parallels and two differences. The two Conferences had in common that they had both been thoroughly prepared legally, and that it proved impossible to reach any agreement on one of the fundamental questions discussed, viz. the breadth of the territorial sea. But they differed in that, as far as the law of the sea was concerned, the Geneva Conference covered a much wider field than that of The Hague as it dealt not only with the territorial sea but also with the high seas and the continental shelf, and that they drew different conclusions from their failure to reach agreement on the breadth of the territorial sea, because while the Conference of 1930 ended with no convention at all concerning this subject, its successor of 1958 adopted one in spite of the important gaps left. The Conference of 1958 was moreover attended by a much larger number of States.
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References
1 86 States were represented: 79 Members of the United Nations (i.e. all 82, except Ethiopia and Sudan, with Egypt and Syria combined into the United Arab Republic after the opening of the Conference, and with the credentials of the Yemenite delegation eventually not approved), with 7 more States: the Federal German Republic, Switzerland, the Holy See (or Vatican City?), South Korea, Vietnam, San Marino and Monaco. Furthermore 7 Specialized Agencies and 9 intergovernmental organisations had observers there.
2 See A/Conf. 13/C. 1/L. 10 and paragraphs (5) and (6) of the I.L.C. commentary upon the pseudo-Article 3 in its Report of 1956 (p. 13).
3 The Conference split itself into five Committees I–V, but their labours resulted only in four Conventions. Committee V was set up with a view to studying the particular situation, in respect of the law of the sea, of States having no seacoast, as reflected in seven “principles” formulated in a Memorandum submitted by a preliminary Conference on Land-locked States, also held in Geneva shortly before the gathering of the Conference on the Law of the Sea, from 10 to 14 February, 1958 (compare Doc. A/Conf. 13/C. 5/L. 1). Its results were, however, in the event simply laid down in part of a phrase of the first Convention (Article 14, para. 1, dealing with the right of innocent passage through the territorial sea for ships of all States, whether coastal or not), and in similar parts of phrases in two Articles (2 and 4, dealing respectively with the contents of the principle of freedom of the high seas and with the right of every State to sail ships under its flag on them) and in one new article (3) of the second Convention, dealing with the right of transit, for any land-locked State, to and from the high seas, but only by common agreement with the States situated between itself and the sea and in conformity with existing international conventions, and on a basis of reciprocity. The relative importance of the matters dealth with in the five Committees separately, is evidenced by the number of pages of each of the printed volumes III-VII of the Conference: Committee I 285 pages, Committee II 163, Committee III 162, Committee IV 144 and Committee V 92.
4 Adopted on 27 April, 1958, on the report of the First Committee, A/Conf. 13/L. 28/Rev. 1 (A/Conf. 13/L. 52).
5 Adopted on 27 April, 1958, on the report of the Second Committee, A/Conf. 13/L. 17, with Add. 1 (A/Conf. 13/L. 53).
6 Adopted on 26 April, 1958, on the report of the Third Committee, A/Conf. 13/L. 21, with Add. 1 (A/Conf. 13/L. 54).
7 Many delegations which advocated extensive rights for the coastal State opposed the idea of compulsory arbitration, and vice versa.
8 Article 59-A being an additional Article adopted by Committee III, now numbered 12.
9 This article 60–A, of Icelandic origin, was eventually rejected in the Plenary. Comp. below, in the section concerning the third Convention (under e).
10 Adopted on 26 April, 1958, on the report of the Fourth Committee, A/Conf. 13/L. 12, with annex (A/Conf. 13/L. 55).
11 The Conventions were open for signature until 31 October, 1958.
12 Accession became possible after 31 October, 1958.
13 Entry into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations.
14 The Conference rejected the idea of denunciation of any of the four Conventions but, in stead, left open the possibility of revision of any of them, albeit in a very limited form. According to the relative final article obtaining in each of the four Conventions, any contracting Party may at any time after the expiration of a period of five years from the date on which the Convention concerned shall enter into force, make a request for revision by means of a notification in writing addressed to the Secretary-General of the United Nations. The decision on such a request rests entirely with the General Assembly with, as usual, a two-thirds majority.
15 A propos des bases juridiques des prétentions des Etats riverains sur le plateau continental: les doctrines du “droit inhérent”, in Festgabe für Alexander N. Makarov, Abhandlungen zum Völkerrecht, pp. 81–101.Google Scholar
16 Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 15Google Scholar, in particular answers to Questions I and II at p. 29.
17 The most important Conventions which played a part in the discussions, in particular in Committees I and II, were the following: the two Conventions of September 23, 1910 (Brussels) for the Unification of Certain Rules of Law respecting Assistance and Salvage at Sea and respecting Collisions at Sea; the Convention of April 10, 1926 (Brussels) for the Unification of Certain Rules relating to the Immunity of State-owned Vessels, with Additional Protocol of May 24, 1934; the Convention respecting Loadlines (London) of July 5, 1930; the Convention of June 10, 1948 (Brussels) on the Safety of Life at Sea and the International Regulations for Preventing Collision at Sea, of the same date; the two Conventions of May 10, 1952 (Brussels) for the Unification of Certain Rules relating to the Arrest of Sea-going Ships, and to Penal Jurisdiction in Matter of Collision or other Incidents of Navigation; the Convention of May 12, 1954, for the Prevention of Pollution of the Sea by Oil. Compare also the Conventions of March 14, 1884, for the Protection of Submarine Cables, and of July 2, 1890 (Anti-Slavery Act of Brussels).
18 Compare Georges Scelle, Obsession du territoire in a recent collection of essays, reviewed in this Tijdschrift, vol. V (1958), p. 321.Google Scholar
19 My italics, J.H.W.V.
20 See Annex to this paper, p. 21.
21 Japan had already introduced a proposal to the same effect in Committee I (A/Conf. 13/C. 1/L. 130), then limited to articles 5 and 7. This proposal, with a sub-amendment of Jugoslavia (extending it to all articles on the determination of the sea areas concerned, L./151), was referred for discussion to the Plenary. There it was introduced as Doc. A/Conf. 13/L. 38.
22 See I.C. J. Reports 1951, p. 160.Google Scholar
23 An amendment intended to lay this down in express words was proposed by the Jugoslav delegation (A/Conf. 13/C. 1/L. 135), but not voted upon.
24 A synoptical table prepared by the Secretariat of the Conference (A/Conf. 13/C. 1/L. 11, with Corr. 1 and 2) gives a general survey of the breadths adopted by all of the participating States in their municipal legislation.
25 Canadian proposal, previously adopted by Committee 1: 35–30–20; United States proposal: 45–33–7; U.S.S.R. proposal: 21–47–17; Eight Powers proposal: 39–38–8.
26 In the meantime the General Assembly of the United Nations resolved to espouse a suggestion made to it by the Conference, to the effect of convening a second Conference for further consideration of the questions of the breadth of the territorial sea and of exclusive fishing rights, if any, to be held in the spring of 1960.—Other ideas ventilated in the Conference were already rejected there: no support was forthcoming for the Peruvian suggestion of periodical conferences to be held on the law of the seas, and no majority could be obtained for the idea of “freezing” the existing situation in respect of the breadth of the territorial sea until the successful end of the second Conference (A/Conf. 13/L. 49).
27 I.C.J. Reports 1951, p. 132.Google Scholar
28 Passage was declared to be innocent (Article 15, para. 3) so long as the ship does not use the territorial sea for committing any act, inter alia, “contrary to the present rules”. These, in their turn (Article 17, para. 1), empowered the coastal State to take the necessary steps to protect itself against acts prejudicial to—undefined—interests which it is authorized to protect “under the present rules” and to require passing vessels to comply with regulations enacted by it on—equally undefined—subjects again “in conformity with the present rules”.
29 This was the final result of a series of amendments: A/Conf. 13/C. 1/L. 15 (Jugoslavia), L. 29 (Denmark), L. 30 (Italy), L. 64/Rev. 1 (Canada, Denmark, Italy, Jugoslavia) and L. 132 (United Kingdom). It was in the event adopted by roll call (29–23–14).
30 The words “if such suspension is essential” were substituted for the words proposed by the I.L.C. “if the coastal State should deem such suspension essential” (combined amendment of the Netherlands, Portugal, United Kingdom and United States of America, A/Conf. 13/C. 1/L. 70).
31 In signing the first Convention, Tunisia has already declared that it “does not consider itself bound by the provision of article 16, paragraph 4”.
32 Apart from a few changes in the wording of the draft Articles (such as: “the criminal jurisdiction of the coastal State should not be exercised…” in place of: “A coastal State may not take any steps …” at the beginning of Article 19, para. 1, and “(if the consequences of the crime extend) to the coastal State” in place of: “(…) beyond the ship” in para. 1 sub (a), most of the alterations consist of additions to them of major or minor importance (Article 18, para. 2 in fine: no charges upon passing vessels to be discriminatory; Article 19, para. 1, new litera (d): permissibility of action against them also for the suppression of illicit traffic in narcotic drugs; new para. 3: obligation to advise the consular authority of the flag State; new para. 5: no exercise of criminal jurisdiction on board a foreign vessel proceeding from a foreign port and only passing through the territorial sea, in connection with a crime committed before its entry; Article 22, para. 1: reference to Article 18 on the levying of charges with a view to making it applicable to non-commercial State ships also; para 2: new proviso reserving the immunities traditionally enjoyed by such vessels).
33 Regrettably, the terminology employed for this and its sister category of vessels differs in the two Conventions concerned: whereas Article 9 of the second Convention correctly speaks of “ships owned or operated by a State and used only on government non-commercial service”, subsection C of Section 111 of Part 1 of the first Convention (Articles 21 and 22) refers to “government ships operated for (non-) commercial purposes”.
34 The text of this Article 33A ran as follows:
“For the purpose of the present Convention ships owned or operated by a State and used only on government non-commercial service are ships which, being owned or operated by a government, fall into one or other of the following categories:
(i) yachts, patrol vessels, hospital ships, fleet auxiliaries, military supply ships, troopships;
(ii) cable ships, ocean weather ships, vessels carrying out scientific investigation, fishery protection vessels;
(iii) vessels employed in services of a similar character to (i) and (ii).”
35 A German amendment intended to eliminate the requirement of previous authorization: 22 for, 35 against, 8 abstentions; a Netherlands amendment, excluding both previous authorization and notification: 17–38–10. The other amendments asked for extension of the provision to ships transporting any kind of nuclear weapons (Jugoslavia) and to government ships operated for noncommercial purposes (Greece).
36 Czechoslovakia—a land-locked State!—already made a reservation in the following terms: “In view of the fact that the Conference has not adopted a special article concerning the passage of warships through the territorial waters of foreign States, the Government of the Czechoslovak Republic deems it necessary to stress that articles 14 and 23 cannot in any sense be interpreted as establishing a right of innocent passage for warships through the territorial waters.” Other signatories made corresponding, but less explicit reservations.
37 Paragraph 3 deals with the delimitation of adjacent or opposite contiguous zones. See below.
38 Fisheries Case (United Kingdom v. Norway), Judgment of 12 18th, 1951Google Scholar: I.C.J. Reports 1951, p. 131Google Scholar: “In these circumstances the Court deems it necessary to point out that although the ten-mile rule has been adopted by certain States both in their national Taw and in their treaties and conventions, and although certain arbitral decisions have applied it as between these States, other States have adopted a different limit. Consequently, the ten-mile rule has not acquired the authority of a general rule of international law.”
39 I.C.J. Reports 1951, p. 116.Google Scholar
40 Compare the map in this Tijdschrift, vol. I (1953/1954), p. 256/257Google Scholar, for Svaerholthavet the section between the numbers 12 and 11, for Lopphavet the section between the numbers 22 and 20.
41 The United Kingdom delegation had withdrawn their proposed paragraph 3: “Base-lines shall not be drawn to and from drying rocks and shoals”, although this was also proposed by the I.L.C. It was, however, re-introduced in a modified form by Mexico (A/Conf. 13/C. 1/L. 99, sub/4) and eventually carried in the Plenary. It now reads: “Base-lines shall not be drawn to and from lowtide elevations unless lighthouses or similar installations which, are permanently above sea level have been built on them.” The subject of low-tide elevations generally is dealt with in Article 11, according to which, although their low-water line may be used as the base-line where they are situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, they do not have a territorial sea of their own. An amendment intended to make in this respect also an exception for elevations on which lighthouses and similar installations have been built, failed.
41 For a short time during the discussions in Committee I mention was made, in this context, of “acquisitive prescription”, a dangerous concept to play with in respect of territorial sovereignty, and which was accordingly eliminated.
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