Summaries of the Work of the International Law Commission
Law of the sea — régime of the territorial sea1
See also: Analytical Guide | Texts and Instruments
At its first session, in 1949, the Commission selected the regime of the territorial waters as a topic for codification without, however, including it in the list of topics to which it gave priority. At its third session, in 1951, in pursuance of a recommendation contained in General Assembly resolution 374 (IV) of 6 December 1949, the Commission decided to initiate work on the regime of the territorial waters and appointed Mr. François as Special Rapporteur for that topic as well.
The Commission considered this topic at its fourth and from its sixth to eighth sessions, in 1952 and from 1954 to 1956, respectively. In connection with its work on this topic, the Commission had before it the reports of the Special Rapporteur2 and information provided by Governments.3
At its fourth session, in 1952, the Special Rapporteur submitted a report4 dealing in particular with the question of baselines and bays. With regard to the delimitation of the territorial sea of two adjacent States, the Commission, at that session, decided to ask Governments for information concerning their practice and for any observations they might consider useful. The Commission also decided that the Special Rapporteur should be free to consult with experts with a view to elucidating certain technical aspects of the problem. The group of experts met at The Hague in April 1953, chaired by the Special Rapporteur.5 In his third report on the regime of the territorial sea,6 which was submitted to the Commission in 1954, the Special Rapporteur incorporated changes suggested by the experts and also took into account the comments received from Governments on the delimitation of the territorial sea between two adjacent States.
At its sixth and seventh sessions, in 1954 and 1955, the Commission adopted provisional articles concerning the regime of the territorial sea, with commentaries, and invited Governments to furnish their observations on the articles.
At its eighth session, in 1956, the Commission drew up its final report on the territorial sea, incorporating a number of changes deriving from the replies from Governments, which was incorporated by the Commission in its consolidated draft on the law of the sea.7
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.8 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.9
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.10
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.11
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.12
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 Seas13 and the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes14 came into force on 30 September 1962. The Convention on the Continental Shelf15 came into force on 10 June 1964; the Convention on the Territorial Sea and the Contiguous Zone16 on 10 September 1964; and the Convention on Fishing and Conservation of the Living Resources of the High Seas17 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.18
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.19
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),20 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 At its fourth session, in 1952, the Commission decided, in accordance with a suggestion of the Special Rapporteur, to use the term “territorial sea” in lieu of “territorial waters”. See Yearbook … 1952, vol. II, document A/2163, para. 37. The General Assembly, in its relevant resolutions, continued using the term “territorial waters” in the title of the topic. (see Analytical Guide for individual documents)
2 See Yearbook … 1952, vol. II, document A/CN.4/53; ibid., 1953, vol. II, document A/CN.4/61 and Add.1; ibid., 1954, vol. II, document A/CN.4/77; and ibid., 1956, vol. II, document A/CN.4/97; as well as amendments proposed by the Special Rapporteur to the provisional articles concerning the regime of the territorial sea in document A/CN.4/93 (ibid., 1955, vol. II). (see Analytical Guide for individual documents)
3 See Yearbook … 1953, vol. II, document A/CN.4/71 and Add.1 and 2; and ibid., 1956, vol. II, documents A/CN.4/97/Add.2 and A/CN.4/99 and Add.1–9; as well as document A/CN.4/90 and Add.1–6 incorporated in Yearbook … 1955, vol. II, document A/2934, annex. (see Analytical Guide for individual documents)
4 See Yearbook … 1952, vol. II, document A/CN.4/53. (see Analytical Guide)
5 For the report of the experts, see the annex to the addendum to the second report of the Special Rapporteur. See Yearbook … 1953, vol. II, document A/CN.4/61/Add.1. (see Analytical Guide)
6 See Yearbook … 1954, vol. II, document A/CN.4/77. (see Analytical Guide)
7 For the use of the Commission in its work on the subject of the territorial sea, the Secretariat published a volume in the United Nations Legislative Series entitled “Laws and Regulations on the Regime of the Territorial Sea” (ST/LEG/SER.B/6, United Nations publication, Sales No. 1957.V.2).
8 See Yearbook … 1956, vol. II, document A/3159, para. 33.
9 See Yearbook … 1956, vol. II, document A/3159, paras. 27 and 28.
10 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.
11 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.
12 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.)
13 United Nations, Treaty Series, vol. 450, p. 82.
14 United Nations, Treaty Series, vol. 450, p. 169.
15 United Nations, Treaty Series, vol. 499, p. 311.
16 United Nations, Treaty Series, vol. 516, p. 205.
17 United Nations, Treaty Series, vol. 559, p. 285.
18 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.
19 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.