Summaries of the Work of the International Law Commission
Law of the sea — régime of the high seas
See also: Analytical Guide | Texts and Instruments
At its first session, in 1949, the Commission selected the regime of the high seas as a topic for codification to which it gave priority and appointed J. P. A. François as Special Rapporteur for it.
The Commission considered this topic at its second, third, fifth, seventh and eighth sessions, in 1950, 1951, 1953, 1955 and 1956, respectively. In connection with its work on the topic, the Commission had before it the reports of the Special Rapporteur,1 information provided by Governments and international organizations2 as well as documents prepared by the Secretariat.3
At its second session, in 1950, the Commission surveyed the various questions falling within the scope of the general topic of the regime of the high seas, e.g., nationality of ships, safety of life at sea, slave trade, submarine telegraph cables, resources of the high seas, right of pursuit, right of approach, contiguous zones, sedentary fisheries and the continental shelf.
At its third session, in 1951, the Commission, on the basis of the second report of the Special Rapporteur,4 provisionally adopted draft articles on the following subjects: the continental shelf; resources of the sea; sedentary fisheries; and contiguous zone.
At its fifth session, in 1953, the Commission, after examining these provisional draft articles once again in the light of comments of Governments, prepared final drafts on the following three questions: continental shelf; fisheries; and contiguous zone. The Commission recommended that the Assembly adopt by resolution the part of the report covering the draft articles on the continental shelf.5 In respect of the draft articles on fisheries, the Commission recommended that the General Assembly should approve the articles by resolution and enter into consultation with the Food and Agriculture Organization of the United Nations with a view to the preparation of a convention or conventions on the subject in conformity with the general principles embodied in the articles.6 As the Commission had not yet adopted draft articles on the territorial sea, it recommended that the General Assembly take no action with regard to the draft article on the contiguous zone, since the report covering the article was already published.7
The General Assembly, by resolution 798 (VIII) of 7 December 1953, decided to defer action until all the problems relating to the regime of the high seas and the regime of territorial waters had been studied by the Commission and reported upon by it to the Assembly. The question of the continental shelf was again brought before the Assembly at its ninth session, in 1954, by ten Member States, which asked the Assembly to avoid undue delay in giving substantive consideration to the question. By resolution 899 (IX) of 14 December 1954, the Assembly again deferred action and requested the Commission to submit its final report on the regime of the high seas, the regime of territorial waters and all related problems in time for their consideration by the Assembly at its eleventh session, in 1956.
At its seventh session, in 1955, the Commission considered certain subjects concerning the high seas which had not been dealt with in its 1953 report and adopted, on the basis of the Special Rapporteur’s sixth report,8 a provisional draft on the regime of the high seas, which was submitted to Governments for comments. The Commission also communicated the draft articles relating to the conservation of the living resources of the sea, which comprised a part of the provisionally adopted draft on the regime of the high seas, and the relevant chapter of its report to the organizations represented by observers at the International Technical Conference on the Conservation of the Living Resources of the Sea, which was convened by the Secretary-General in pursuance of General Assembly resolution 900 (IX) of 14 December 1954 and was held at Rome from 18 April to 10 May 1955. In preparing the articles dealing with the conservation of the living resources of the sea, the Commission took account of the report of that Conference.9 At its eighth session, in 1956, the Commission examined replies from Governments and from the International Commission for the Northwest Atlantic Fisheries and drew up a final report on the subjects relating to the high seas, which was incorporated by the Commission in its consolidated draft on the law of the sea.
At the Commission’s eighth session, in 1956, all the draft provisions adopted by the Commission concerning the law of the sea were recast so as to constitute a single coordinated and systematic body of rules. At the same session, the Commission adopted a final draft on the law of the sea, containing seventy-three articles and commentaries thereto.10 The Commission noted that, in order to give effect to the project as a whole, it would be necessary to have recourse to conventional means. Accordingly, in submitting the final draft to the General Assembly in 1956, it recommended that the General Assembly should summon an international conference of plenipotentiaries.11
In accordance with the recommendation of the Commission, the General Assembly, by resolution 1105 (XI) of 21 February 1957, decided to convene an international conference of plenipotentiaries “to examine the law of the sea, taking account not only of the legal but also of the technical, biological, economic and political aspects of the problem, and to embody the results of its work in one or more international conventions or such other instruments as the conference may deem appropriate”.
The United Nations Conference on the Law of the Sea met at Geneva from 24 February to 27 April 1958. Of the eighty-six States represented there, seventy-nine were Members of the United Nations and seven were members of specialized agencies though not of the United Nations.
The final report of the Commission on the law of the sea had been referred to the Conference by the General Assembly as the basis for its consideration of the various problems involved in the development and codification of the law of the sea. In addition to this, the Conference had before it more than thirty preparatory documents, prepared by the United Nations Secretariat, by certain specialized agencies and by a number of independent experts invited by the Secretary-General to submit studies on various specialized topics. One question which had not been covered in the report of the Commission, namely, the question of free access to the sea of land-locked countries, was dealt with in a memorandum submitted to the Conference by a preliminary conference of land-locked States which met at Geneva from 10 to 14 February 1958 prior to the convening of the United Nations Conference.12
In view of the wide scope of the work before it, the Conference established five main committees: First Committee (territorial sea and contiguous zone); Second Committee (high seas: general regime); Third Committee (high seas: fishing and conservation of living resources); Fourth Committee (continental shelf); and Fifth Committee (question of free access to the sea of land-locked countries). Each committee submitted to the plenary meeting of the Conference a report summarizing the results of its work and appending draft articles as approved. The Conference agreed to embody these draft articles, some in amended form, in the following four separate conventions: the Convention on the Territorial Sea and the Contiguous Zone; the Convention on the High Seas; the Convention on Fishing and Conservation of the Living Resources of the High Seas; and the Convention on the Continental Shelf. The work of the Fifth Committee did not result in a separate convention, but its recommendations were included in article 14 of the Convention on the Territorial Sea and the Contiguous Zone and in articles 2, 3 and 4 of the Convention on the High Seas.13
In addition to the four Conventions, the Conference adopted an Optional Protocol of Signature concerning the Compulsory Settlement of Disputes, which provides for the compulsory jurisdiction of the International Court of Justice, or, if the parties so prefer, for submission of the dispute to arbitration or conciliation. The texts of the Conventions and Protocol are reproduced in annex V, section A. The Conference also adopted nine resolutions on various subjects, including the matter of convening a second United Nations Conference on the Law of the Sea.14
The Final Act of the Conference was signed on 29 April 1958. All the Conventions remained open for signature until 31 October 1958, by all States Members of the United Nations or of any of the specialized agencies and by any other States invited by the General Assembly to become a party; since that date they have been open to accession by all such States. The Optional Protocol was open to all States becoming parties to any of the Conventions. The Conventions were subject to ratification. The Optional Protocol was subject to ratification, where necessary, according to the constitutional requirements of the signatory States. Each of the Conventions was to come 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.
The Convention on the High Seas15 and the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes16 came into force on 30 September 1962. The Convention on the Continental Shelf17 came into force on 10 June 1964; the Convention on the Territorial Sea and the Contiguous Zone18 on 10 September 1964; and the Convention on Fishing and Conservation of the Living Resources of the High Seas19 on 20 March 1966. By 3 October 2003, fifty-one States were parties to the Convention on the Territorial Sea and the Contiguous Zone, sixty-two States were parties to the Convention on the High Seas, thirty-seven States were parties to the Convention on Fishing and Conservation of the Living Resources of the High Seas, fifty-seven States were parties to the Convention on the Continental Shelf and thirty-seven States were parties to the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes.
On 10 December 1958, the General Assembly, by resolution 1307 (XIII), asked the Secretary-General to convene a second United Nations Conference on the Law of the Sea to consider further the questions of the breadth of the territorial sea and fishery limits, questions which had been left unsettled by the first Conference on the Law of the Sea. Eighty-eight States were represented at the second Conference, which was held in Geneva from 17 March to 26 April 1960. The Conference failed to adopt any substantive proposal on the two questions before it. It did, however, approve a resolution expressing the need for technical assistance in making adjustments to their coastal and distant-waters fishing in the light of developments in international law and practice.20
At its twenty-fifth session, the General Assembly, by resolution 2750 C (XXV) of 17 December 1970, decided, inter alia, to convene in 1973 a conference on the law of the sea which would deal with the establishment of an equitable international regime — including an international machinery — for the seabed and the ocean floor and the subsoil thereof beyond the limits of national jurisdiction. The conference would also deal with issues concerning the regimes of the high seas, the continental shelf, the territorial sea (including the question of its breadth and the question of international straits and contiguous zone), fishing and conservation of the living resources of the high seas (including the question of preferential rights of coastal States), the preservation of the marine environment (including, inter alia, the prevention of pollution) and scientific research. The Assembly, by the same resolution, instructed the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction provided for in General Assembly resolution 2467 A (XXIII) of 21 December 1968, enlarged to eighty-six members, to act as a preparatory body for the 1973 conference and to prepare draft treaty articles embodying the international regime — including an international machinery — for the area and resources of the seabed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction, and a comprehensive list of subjects and issues relating to the law of the sea and draft articles on such subjects and issues.21
The Conference held eleven sessions, from 1973 to 1982. On 10 December 1982, it adopted the United Nations Convention on the Law of the Sea (courtesy of the Oceans and Law of the Sea web site),22 which includes 320 articles and nine annexes. It also adopted a Final Act to which are annexed, inter alia, resolutions and a statement of understanding. The Convention remained open for signature until 9 December 1984 at the Ministry of Foreign Affairs of Jamaica and also, from 1 July 1983 until 9 December 1984, at United Nations Headquarters in New York. It entered into force on 16 November 1994, twelve months after the date of deposit of the sixtieth instrument. As of 3 October 2003, one hundred forty-three States had deposited instruments of ratification. It may be noted that a number of articles of the 1982 Convention are based on those of the 1958 Conventions. In accordance with paragraph 1 of article 311 of the 1982 Convention, that Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958.
1 See Yearbook … 1950, vol. II, document A/CN.4/17; ibid., 1951, vol. II, document A/CN.4/42; ibid., 1952, vol. II, document A/CN.4/51; ibid., 1953, vol. II, documents A/CN.4/60 and A/CN.4/69; ibid., 1954, vol. II, document A/CN.4/79; and ibid., 1956, vol. II, documents A/CN.4/97 and A/CN.4/103. (see Analytical Guide for individual documents)
2 See Yearbook … 1950, vol. II, document A/CN.4/19; ibid., 1953, vol. II, document A/CN.4/70; ibid., 1954, vol. II, document A/CN.4/86; and ibid., 1956, vol. II, documents A/CN.4/97/Add.1 and Add.3, A/CN.4/99 and Add.1 to 9 and A/CN.4/100; as well as document A/CN.4/55 and Add.1, Add.1/Rev.1 and Add.2–6 incorporated in Yearbook … 1953, vol. II, document A/2456, annex II. (see Analytical Guide for individual documents)
3 See Yearbook … 1950, vol. II, documents A/CN.4/30 and A/CN.4/32; and document A/CN.4/38 (see Analytical Guide for individual documents). In addition, the Secretariat published volumes in the United Nations Legislative Series entitled “Laws and Regulations on the Regime of the High Seas” (volume I of which covers laws and regulations relating to continental shelf, contiguous zones and supervision of foreign vessels on the high seas (ST/LEG/SER.B/1, United Nations publications, Sales No. 1951.V.2) and volume II covers laws relating to jurisdiction over crimes committed abroad or on the high seas (ST/LEG/SER.B/2, United Nations publications, Sales No. 1952.V.1)) and “Laws Concerning the Nationality of Ships” (ST/LEG/SER.B/5 and Add.1, United Nations publication, Sales No. 1956.V.1) as well as a supplement to those volumes (ST/LEG/SER.B/8, United Nations publication, Sales No. 59.V.2).
4 See Yearbook … 1951, vol. II, document A/CN.4/42.
5 See Yearbook … 1953, vol. II, document A/2456, paras. 62 and 91.
6 See Yearbook … 1953, vol. II, document A/2456, paras. 94 and 102.
7 See Yearbook … 1953, vol. II, document A/2456, paras. 105 and 114.
8 See Yearbook … 1954, vol. II, document A/CN.4/79.
9 Report of the International Technical Conference on the Conservation of the Living Resources of the Sea, 18 April–10 May 1955, Rome (United Nations publication, Sales No. 1955.II.B.2).
10 See Yearbook … 1956, vol. II, document A/3159, para. 33.
11 See Yearbook … 1956, vol. II, document A/3159, paras. 27 and 28.
12 See Official Records of the United Nations Conference on the Law of the Sea, Geneva, 24 February–27 April 1958, vol. VII, Fifth Committee (Question of Free Access to the Sea of Land-Locked Countries) (United Nations publication, Sales No. 58.V.4, vol. VII), Annexes, document A/CONF.13/C.5/L.1.
13 In pursuance of a resolution adopted by the First United Nations Conference on Trade and Development at Geneva in June 1964, the General Assembly, on 10 February 1965, decided to convene an international conference of plenipotentiaries to consider the question of transit trade of land-locked countries and to embody the results of its work in a convention and such other instruments as it might deem appropriate. The United Nations Conference on Transit Trade of Land-locked Countries, at which the Governments of fifty-eight States were represented, met in New York from 7 June to 8 July 1965. The Conference adopted the Convention on Transit Trade of Land-locked States and two resolutions. United Nations, Treaty Series, vol. 597, p. 3.
14 United Nations, Treaty Series, vol. 450, p. 58. Resolution VII on Regime of Historic Waters was adopted as a follow-up to the adoption by the Conference of paragraph 6 of article 7 of the Convention on the Territorial Sea and Contiguous Zone, under which the regime established by the Convention for bays “shall not apply to so-called ‘historic’ bays”. Further to this resolution, the General Assembly, by resolution 1453 (XIV) of 7 December 1959, requested the Commission:
“ ... as soon as it considers it advisable, to undertake the study of the question of the juridical regime of historic waters, including historic bays, and to make such recommendations regarding the matter as the Commission deems appropriate.”
The Commission requested the Secretariat to undertake a preliminary study of the topic and decided at its fourteenth session, in 1962, to include the topic in its programme of work, but without setting any date for the start of its consideration or appointing a Special Rapporteur. The Secretariat study is reproduced in the Yearbook … 1962, vol. II, document A/CN.4/143. At its nineteenth session, in 1967, the Commission considered whether to proceed with the study of this topic. The Commission’s report summarized the views expressed as follows:
“Most members doubted whether the time had yet come to proceed actively with either of these topics. Both were of considerable scope and raised some political problems, and to undertake either of them at the present time might seriously delay the completion of work on the important topics already under study.” (see Yearbook … 1967, vol. II, document A/6709/Rev.1, para. 45.)
15 United Nations, Treaty Series, vol. 450, p. 82.
16 United Nations, Treaty Series, vol. 450, p. 169.
17 United Nations, Treaty Series, vol. 499, p. 311.
18 United Nations, Treaty Series, vol. 516, p. 205.
19 United Nations, Treaty Series, vol. 559, p. 285.
20 See Official Records of the Second United Nations Conference on the Law of the Sea, Geneva, 17 March–26 April 1960 (United Nations publication, Sales No. 60.V.6), Annexes, document A/CONF.19/L.15, annex.
21 In 1970, the Secretariat published a volume in the United Nations Legislative Series entitled “National Legislation and Treaties Relating to the Territorial Sea, the Contiguous Zone, the Continental Shelf, the High Seas and to Fishing and Conservation of the Living Resources of the Sea”(ST/LEG/SER.B/15, United Nations publication, Sales No. 70.V.9) followed by three volumes entitled “National Legislation and Treaties Relating to the Law of the Sea” (ST/LEG/SER.B/16, United Nations publication, Sales No. 74.V.2; ST/LEG/SER.B/18, United Nations publication, Sales No. 76.V.2; and ST/LEG/SER.B/19, United Nations publication, Sales No. 80.V.3) in 1974, 1976 and 1980, with the main purpose being to provide as complete and up-to-date information as possible for the participants in the Third United Nations Conference on the Law of the Sea.