The Emerging New Law of The Sea
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01509.x |
| Published date | 01 January 1979 |
| Author | L. D. M. Nelson |
| Date | 01 January 1979 |
THE
EMERGING NEW, LAW
OF
THE
SEA
IT
is, for the most part, beyond dispute that the law
of
the sea is and
has been for some time now undergoing fundamental changes.
These changes have been the consequences of two main factors-
the remarkable progress of marine-technology on the one hand and
the process of decolonisation
on
the other. On account of the
former the resources of vast areas of the seabed-both of the
continental shelf and of the deep seabed-are now exploitable, with
the result that attempts are being made within the framework of the
Third United Nations Conference on the Law of the Sea
to
impose
a legal regime on areas of the oceans which were, to a large extent,
outside the concern of international law. The emergence of several
new States within the international community has had several
important consequences. It has obviously produced a diversity of
maritime interests which, it can be argued, is greater than hitherto
and which, for the most part, are often conflicting. Moreover, several
of these new States form part of what has been called the Third
World or the Group of
77
which generally considers the law
of
the
sea as embodied
in
the Geneva Conventions on the Law of the Sea
(1958)
as serving primarily the needs and interests
of
the old
maritime powers and, therefore, views this classical law of the sea
with suspicion. Such an attitude to a certain extent has introduced
a very significant psychological dimension to the law of the sea
and as a result law-making in this area of international law has been
rendered especially difftcult. Finally, it can be contended that it
was largely due to the presence of these new States that the concept
of the exclusive economic zone, which is indeed the centre-piece
of the emerging new law of the sea, ever got
off
the ground.
THE
CONSEQUENCES
OF
TECHNOLOGY
It was the fact that modern technological progress made the
utilisation of the natural resources of the continental shelf prac-
ticable which enabled one of the most far-reaching unilateral declara-
tions in international law to be made. This was the
Truman
Proclamation of
1945.l
This declaration which gave the United
States jurisdiction and control over the natural resources of the
subsoil and seabed of its continental shelf and which was followed
by
so
many other coastal States formed the basis of the
1958
Geneva Convention on the Continental Shelf and even today is
considered as constituting the heart of the legal rdgime
of
the
continental shelf.
1
One
of
the preambular paragraphs
of
this
Proclamation expressly stated that
"
whereas
Its
competent experts are
of
the opinion that such resources underlie many
parts
of
the continental shelf
off
the
coasts
of
the
United
States
of
Amerlca,
and
that with modern technological progress their utilization
is
already practicable
or
will
become
so
at an
early
date.
.
. ."
2
See North Sea Continental Shelf Cascs
(1969)
I.C.J. Reports, pp.
32-33.
42
Jan.
19793
THE
EMERGING NEW
LAW
OF
THE
SEA
43
Continued advances in ocean technology soon made it possible
to open up vast areas of the seabed to exploration and exploitation.
The fear that these immense marine spaces would fall into the hands
of
those capable of exploiting them led to the adoption of a
series of General Assembly resolutions culminating in the Declara-
tion
of
Principles governing the seabed and the ocean floor, and the
subsoil thereof, beyond the limits of national jurisdiction
of
Decem-
ber
17, 1970
(Resolution
2749
XXV).
This declaration afflrmed that
there was an international seabed area beyond national jurisdiction
which
‘‘
shall be reserved exclusively
for
peaceful purposes and that
the exploration of the area and the exploitation of its resources
shall be carried out for the benefit of mankind
as
a whole.” Thus
emerged the notion that the resources of the international seabed
area should constitute the common heritage of mankind. In time
it came to be generally agreed by members of the international
community that there was an area beyond national jurisdiction
which fell within the common heritage of mankind. Nevertheless
this consensus was of a general nature. It was accepted that there
was an area
of
the seabed and ocean floor which lay beyond the
limits of the national jurisdiction of coastal States whose resources
should be utilised for the benefit of all mankind. Yet where national
jurisdiction ends and international resource jurisdiction begins and
what type of rdgime will regulate the exploration and exploitation
of
the resources of the international seabed area are questions still
to be answered.
Technological progress has gone hand in hand with an ever-
growing concern with the preservation
of
the marine environment.
The appearance of the supertankers has increased the dangers of
oil spills to which coastal States have already been exposed; the
dumping of harmful substances into the seas by ships and aircraft
and the discharge into the seas of pollutants from land-based
sources pose a serious threat to the life of the oceans. Factors
of
this kind have led members
of
the international community to
begin taking concerted action by way of conventions and declara-
tions (notably the Stockholm Declaration on the Human Environ-
ment of
1972)
to halt the degradation
of
the marine environment.
Moreover to several cuastal states the establishment of an exclusive
economic zone would carry with
it
the right to prevent and control
pollution in the zone.
THE
THIRD
WORLD
AND
THE
DEVELOPED
COUNTRIES
The conflict
of
interests between the Third World (or the Group
9
See,
for
instance, the Convention on the Protection
of
the Marine Environment
of
the Baltic Sea Area (1974)
Vol.
13
I.L.M.,
pp.
546-557, the Convention for the
Protection
of
the Mediterranean Sea (1976)
Vol.
15 I.L.M.,
pp.
285-318, and the
Kuwait Regional Convention
Por
Co-operation
on
the Protection
of
the Marine
Environment from Pollution (1978)
Vol.
17 I.L.M.,
pp.
511-526.
4
See
below,
pp.
49-57.
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