Maritime boundaries

Strangely enough, despite the very different criteria involved in maritime delimitation, similar difficulties over delimitation can occur, and arbitral decisions also demonstrate the same conservatism as in the case with terrestrial outcomes (Fietta and Cleverly 2016; Anderson 2008). International law with respect to the oceans was really only formulated in its contemporary form in the twentieth century (Prescott 1985: 136-137). There had, of course, been examples of states expressing sovereignty over the seas long before this date; aboriginals in Australia, for example, claim that tribal clans had delimited sea areas adjacent to then lands for thousands of years, and Roman legalists argued that the emperor had the right to punish criminals at sea as he did on land. Concepts of the territorial sea have emerged from the twelfth century onwards in Europe and began to be precisely defined from the mid-eighteenth century onwards. The ‘camion shot rule’ - the distance that could be traversed by a cannon ball - was the fust instrument used for this purpose, being conventionally set at three nautical miles, and joined the ‘twenty-four hour rule’ defining the right of an enemy vessel to claim the protection of a neutral littoral state’s territorial waters, thus implicitly establishing state sovereignty over its territorial sea.

By the twentieth century, however, with the growth of international trade alongside maritime economic interests and the increasing efficacy of naval warfare, such elementary principles no longer sufficed and, in a series of four conferences starting in 1930, the general principles of contemporary international law were laid down by treaty. Although the initial League of Nations conference at The Hague was unsuccessful, international concern over the issue was stimulated by President Harry Tinman's 1945 declaration, based on customary international law, of American control over natural resources on its continental shelf. The American decision was quickly followed by other states seeking to protect fishing rights and by yet more states abandoning the old 3-mile territorial sea definition in favour of one set at a distance of 12 nautical miles.

As a result, in 1956, the United Nations organised its first Law-of-the-Sea conference (UNCLOS I) which generated four conventions two years later, defining the concepts of the territorial sea, in which, although equivalent to sovereign territory states could not deny alien vessels the right of ‘innocent passage'; the ‘contiguous zone’ where states had rights of enforcement of customs, taxation, immigration and pollution legislation; the continental shelf as the ‘natural prolongation’ of sovereign territory under the sea; and the ‘high seas’ a zone outside sovereign constraints and generic fishing rights and constraints. The conference was followed by a further conference in 1960 (UNCLOS II), which sought to establish more precisely the nature of economic rights but was unsuccessful, so, in 1982, a third conference (UNCLOS III) was organised to clarify remaining areas of ambiguity. The conference, in a new treaty, defined a third zone, the ‘exclusive economic zone' in which states enjoyed exclusive economic rights over natural resources and redefined the concept of the continental shelf to include the ‘continental margin' which would allow for undersea mineral exploitation. The treaty entered into force in 1994, after 60 states had adhered to it, although the United States has not done so since it objects to the provisions for the exclusive economic zone (Part XI of the treaty), which it considers threatens America’s economic and security interests.

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