New Departures in the North Sea
| Date | 01 March 1978 |
| Published date | 01 March 1978 |
| DOI | 10.1177/001083677801300101 |
| Author | Clive Archer |
| Subject Matter | Articles |
New
Departures
in
the
North
Sea
1
CLIVE
ARCHER
Department
of
Politics,
University
of
Aberdeen
Archer,
T.
C.
New
Departures
in
the
North
Sea.
Cooperation
and
Conflict,
XIII
,
1978,
1-19.
The
article
outlines
the
change
in
the
status
of
the
North
Sea
brought
about
by
international
agreement,
regional
arrangements
and
the
individual
actions
of
the
coastal
states.
The
high
seas
regime
there
has
been
undermined
and
new
legal
regimes
are
emerging.
The
type
of
regime
adopted
in
the
various
areas
of
activity,
for
example
oil
exploitation
or
fisheries,
depends
not
just
on
wider
international
developments
but
also
on
pressure
from
interest
groups
and
the
balance
of
advantages
offered
to
the
coastal
states
by
the
new
system.
I.
INTRODUCTION
As
a
result
of
recent
developments,
the
traditional
freedom
of
the
high
seas
has
been
whittled
away.
This
process
has
been
conspicuous
in
the
North
Sea
where
increased
activity
has
been
controlled
by
regional
agreements
and
by
the
extension
of
the
littoral
states’
’territoriality’
to
the
former
high
seas.
This
article
will
outline
the
changes
in
the
status
of
the
North
Sea,
will
examine
the
emerging
legal
regimes
covering
activity
there
and
will
consider
some
of
the
forces
pressuring
for
change
in
one
direction
or
another.
II. BACKGROUND
By
the
end
of
the
nineteenth
century,
coastal
states
were
generally
recognised
as
having
a
territorial
sea
stretching
out
three
miles
from
the
base
line,
which
was
often
the
low
water
mark.
Although
by
the
Second
World
War
there
was
a
diversity
of
opinions
concerning
both
the
width
of
territorial
sea
and
the
extent
of
its
subjection
to
coastal
state
sovereignty,
it
was
agreed
that
beyond
the
territorial
sea’s
limits
was
the
high
sea
where
’no
state
or
group
of
states
may
claim
any
right
of
sovereignty,
privilege
or
preroga-
tive
over
any
portion
or
place
any
obstacle
to
the
free
and
full
use
of
the
sea.’
Whilst
one
legal
authority
wrote
concerning
the
concept
of
the
high
seas
that
’all
nations
enjoy
all
rights
and
all
privileges
in
and
over
all
of
the
sea
be-
yond
the
limit
of
territorial
waters’2
the
notion
tended
to
be
neither
so
absolute
nor
so
monolithic
in
practice.
Benefi-
ciaries
were
expected
to
perform
certain
duties,
whether
helping
with
the
suppres-
sion
of
slavery
and
piracy
or
following
generally
accepted
rules
of
navigation
or
helping
fellow
mariners
in
distress.
The
’freedom
of
the
high
seas’
was,
more
precisely,
not
one
freedom
but
included
several
freedoms
such
as
those
of
naviga-
tion,
flight
over
the
high
seas,
fishing
and
the
right
to
lay
submarine
cables
and
pipelines.3
Even
these
rights
were
ex-
pected
to
be
exercised
’with
reasonable
regard
to
the
interests
of
other
states’4
enjoying
their
own
freedom
of
the
high
seas.
Furthermore
little,
if
anything,
was
said
in
the
pre-war
discussions
about
the
status
of
the
high
seas
as
to
the
seabed
and
the
subsoil
thereof.
Even
postwar,
there
was
disagreement
whether
they
were
res
communis
omnium,
as
the
seas
above
them
are
assumed
to
be,
res
nullius,
and
therefore
open
to
annexation,
or,
as
one
writer
suggested,
in
a
legal
vacuum.5
The
freedom
of the
high
seas
grew
out
of
particular
historical
circumstances
and
is
not
an
immutable
notion.
It
can,
and
has
been,
undermined
in
three
ways.
First,
unilateral
action
can
be
taken
by
2
a
state
or
states,
extending
out
their
jurisdiction
into
the
high
seas
and
at-
tempting
to
enforce
this
change
or
to
have
it
accepted
by
other
states.
Secondly,
a
group
of
states
may
attempt
a
regional
adjustment
of the
rules
and
regulations
governing
a
particular
part
of
the
world’s
seas
and
again
hope
for
a
wider
accept-
ance
of the
change.
Finally,
a
develop-
ment
in
the
internationally
accepted
law
of
the
sea
can
be
brought
about
by
the
international
community
gathered
togeth-
er
as
at
the
various
United
Nations
Conferences
on
the
Law
of the
Sea.
Thus
it
is
possible
that
in
such
areas
as
the
North
Sea,
some
of
the
high
seas’
freedoms
may
be
eroded
whilst
others
are
upheld;
some
may
be
completely
undermined
whilst
others
are
allowed
only
to
exist
conditionally;
one
attitude
may
be
taken
towards
the
status
of
the
seabed
whilst
another
is
applied
to
that
of
the
waters
above
it;
some
changes
may
take
place
by
international
agreement,
some
by
regional
arrangements,
some
by
unilateral
action
and
even
some
by
a
blend
of
methods.
III.
RECENT
CHANGES
Since
the
Second
World
War,
the
neat
division
of the
North
Sea
into
the
three
mile
strip
of
territorial
sea
around
the
littoral
states
and
the
remaining
high
seas
has
gradually
been
eroded
by
changes
in
generally
accepted
law
and
practice,
joint
agreements
between
the
North
Sea
littoral
states
and
by
the
individual
action
of
some
of
these
countries.
1.
General
Changes
Changes
affecting
the
status
of
the
high
seas
generally
have been
accepted
by
the
world
community
of
states
at
the
two
United
Nations
Conferences
on
the
Law
of
the
Sea
(UNCLOS)
of
1958
and
1960
and
further
developments
are
presaged
by
the
present
UNCLOS
negotiations.
These
changes
fall
into
three
groups:
(i)
The
Extension
of
the
Territorial
Sea: -
The
major
development
under
this
heading
has
come
in
the
accepted
width
of
territorial
waters.
By
1958
those
wanting
a
three
mile
zone
were
already
in
a
minority
at
UNCLOS
I
but
there
was
no
agreement
whether
there
should
be
an
increase
to
six
or
twelve
miles
and
UNCLOS
II
in
1960
failed
to
produce
a
compromise.
However,
it
was
indirectly
accepted
that
the
territorial
sea
should
not
extend
beyond
twelve
miles
from
the
base
line
as
this
was
the
width
agreed
for
the
contiguous
zone
and
the
territorial
sea
together.
Certainly
at
the
present
round
of
UNCLOS
talks,
there
has
been
a
general
acceptance
of
a
twelve
mile
territorial
sea
as
a
minimum.6
This
has
meant
a
transfer
of
a
band
of
the
North
Sea
out
of
the
category
of
high
seas
into
that
of
territorial
sea,
though
whether
this
territorial
sea
comes
under
the
sovereignty
of
the
coastal
state
or
is
still
res
communis -
the
common
heritage
of
mankind -
is
open
to
argument.
That
the
coastal
state
exercises
some
form
of
sovereignty
has
become
increasingly
accepted. 7
(ii)
The
Creation
of
Contiguous
Zones
and
Other
Special
Zones: -
In
this
case
a
contiguous
zone
is
meant
to
be
a
part
of
the
high
seas
but
subject
to
the
coastal
state’s
’control
necessary
to
(a)
prevent
infringement
of
its
customs,
fiscal,
immigration
or
sanitary
regula-
tions
within
its
territory
or
territorial
sea;
(b)
punish
infringement
of
the
above
regula-
tions
committed
within
its
territory
or
territorial
sea.’8
The
Revised
Single
Negotiating
Text
(RSNT)
used
during
the
UNCLOS
III
negotiations
suggests
a
contiguous
zone
of
twenty-four
miles
compared
with
the
maximum
of
twelve
miles
allowed
for
both
the
territorial
sea
and
contiguous
zone
by
Article
24
of
the
1958
Conven-
tion
on
the
Territorial
Sea
and
Contiguous
Zone.9
The
creation
of
other
special
zones
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