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T HAS BEEN traditionally recognized that naval officers as an incident of their profession should have a practical working knowledge of the principle aspects of the Law of the Sea. One of the most compelling reasons for this requirement is the special status accorded the man-of-war. A commissioned ship of the United States Navy, in the eyes of the world, is the United States. Every act of the ship is considered an act of the sovereign and each incident upon the seas which involves the ship involves the sovereign. The resulting responsibility placed upon the commanding officer by this single principle is alone sufficient to require a familiarity with the international rules concerning the rights and obligations of those who use the sea. What are these rights and obligations?

The answer has not been easily found. The law of the sea has been developing throughout the thousands of years that men have sailed the seas and organized societies have asserted the right to exercise control over areas of the sea adjacent to their coasts. It continues to develop. Its evolution springs from repeated state practice, international agreements, decisions of municipal and international courts, the opinions of publicists and in some cases as the consequence of war. All have had a part in shaping its body which is not altogether consistent nor recognized by all states in every particular. Dynamic, controversial and at times illusive, this law appears within no statute book. To date it has defied codification.

Captain Wilfred A. Hearn, U.S. Navy, is the Special Assistant to the Judge Advocate General for matters concerning the Second United Nations Conference on the Law of the Sea. In this assignment Captain Hearn will be a member of the United States Delegation to the 1960 Conference as the senior JAG advisor. In preparation for the 1958 Geneva Conference on the Law of the Sea, Captain Hearn served on the inter-departmental government working committee. He also served as a member of the United States Delegation to that Conference. Prior to undertaking his present assignment, Captain Hearn was the Assistant Judge Advocate General for International and Administrative Law. He received his LLB from the George

Yet its codification has recently been attempted under the auspices of the General Assembly of the United Nations. Delegates of eighty-six member states met in Geneva from February 24, 1958 to April 27, 1958 in order to examine this historic body of law. Taking account of not only the legal but also the technical, biological, economic and political aspects of the problem, it was their purpose to embody the results of its work in one or more international conventions or equally appropriate instruments. The conference had the benefit of the 1956 Report of the International Law Commission which included draft articles formulated by the Commission after six years of intensive study and deliberation.1

AT THE CONCLUSION of its work the Conference drafted four important conventions. They were:

1. The Convention on the Territorial Sea and the Contiguous Zone.

2. The Convention on the High Seas.

3. The Convention on Fishing and the Conservation of the Natural Resources of the High Seas.

4. The Convention on the Continental Shelf.

(In addition, there was adopted an optional protocol covering compulsory settlement of disputes arising out of the interpretation or application of any of the articles of the foregoing conventions.)

A substantial number of the rules adopted in these conventions were based on extensive state practice, precedent and doctrine. In some instances the rules tended to clarify issues that had been in controversy in recent years. The fishing convention establishes a new legal system and the Convention on the Continental Shelf constitutes the first formal recognition of the

Washington University in 1931 and became a member of the Bar of the District of Columbia the same year. He was admitted to the Bar of the State of Tennessee in 1935. He is a member of the American Bar Association, Federal Bar Association and the American Society of International Law.

1. International Law Commission Report, U.N. General Assembly, 11th Sess., Official Records, Supp. No. 9(A/8159); 51 AJIL 154 (1957).

"regime of the continental shelf." These two conventions may be considered as example of the "progressive development" in the field of international law brought about by this conference.

Since a great number of the rules adopted were merely declaratory of the present state practice they may be considered accepted international law even without the conventions being ratified. Further, to the extent that the rules are not declaratory of accepted practice, they do constitute an international concurrence as to the principles adopted. As a consequence, even in the absence of ratification, the conventions will be entitled to great weight in any legal controversy. Thus, at least to the extent that these conventions have application to naval operations, the naval officer must be aware of their content.

CONVENTION ON THE TERRITORIAL SEA

AND THE CONTIGUOUS ZONE 2

THE CONVENTION ON the Territorial Sea and the Contiguous Zone embodies those principles of international law that have specific reference to the status of these areas of the sea, their demarcation, and the rights and responsibilities of both the coastal state and the community of nations with respect thereto. In its first articles there is reiterated the universally recognized principle of the sovereignty of the coastal state over its internal waters and the territorial sea, and that this right of sovereignty extends to the airspace over the territorial sea as well as its bed and subsoil.

The convention recognizes two methods for determining the base line, that is, the line from which the territorial sea is measured and, in addition, in appropriate cases, the line which separates internal waters from the territorial sea. The first method, long recognized as the general rule, establishes as the base line the low water line following the sinuosities of the coast. The second method which in fact is an exception to the general rule allows the use of straight base lines joining appropriate points where the coast line is deeply indented and cut into, or, if there is a fringe of islands along the coast in its immediate vicinity.

The classic example of a coast line to which the straight line method applies is the Norwegian coast along which it is estimated that there are 120,000 islands within a distance of 600 miles. In fact, it was with specific reference to the coast of Norway that a decision of the In2. U.N. Doc. A/Conf. 13/L52. Signed by 44 States including U.S.

ternational Court of Justice in 1951 gave validity to the straight base line principle. In drawing straight base lines there must not be any appreciable departure from the general direction of the coast and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.

Where the geographical considerations noted above are present, economic interests peculiar to the region concerned, if evidenced by long usage, may be considered in determining particular base lines. Where the straight base line is allowed it has the effect of bringing into the territorial sea areas of water heretofore considered high seas. Hence where the straight base line is applied, the coastal state must indicate the lines on published charts.

Although the conference could not agree on the breadth of the territorial sea, it did incorporate into this Convention an article defining the outer limit of the territorial sea as a line every point of which is at a distance from the nearest point of the base line equal to the breadth of the territorial sea.

The general principles relating to bays which are included in the Convention provide that a bay, the coasts of which are owned by a single state, and having certain geographical characteristics is considered internal waters. One of the essential geographical requirements in the convention article is that the closing line must not be longer than 24 miles, and if the natural entrance of the bay is of a greater width, a straight base line of 24 miles may be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. Fixing the allowable length of the closing line at 24 miles is a significant departure from the rule which had been recognized of many governments and which had fixed the maximum length of the closing line at 10 miles. The liberalization of this requirement will qualify many bay areas of the world for conversion to internal waters, thereby bringing under national control sea areas heretofore classed as high seas-for example, Cape Cod Bay.

WITH RESPECT TO the regime of the territorial sea, the Convention is quite explicit in defining the respective rights, duties and responsibilities of the coastal state and foreign vessels. These provisions are largely declaratory of existing international law.

The ships of all states have the right of inno

cent passage through the territorial seas. However, in order to enjoy this right the passage must be innocent. A coastal state may not hamper innocent passage. It must give notice of any dangers to navigation of which it has knowledge, and is under the obligation to use all means at its disposal to insure respect for innocent passage in its territorial sea. But, where essential for the protection of its own security, a coastal state may, without discrimination amongst foreign ships, suspend temporarily innocent passage of foreign ships in specified areas of its territorial sea. A foreign ship is bound to comply with the rules and regulations imposed by the coastal state concerning such passage, and commercial shipping may, under certain circumstances, come within the civil and criminal jurisdiction of the coastal state. It is important to note that the right of innocent passage applies to ships and not to aircraft. Aircraft do not enjoy this right and may enter the airspace above the territorial sea only with the consent of the coastal state.

The right of innocent passage through straits which are used for international navigation between two parts of the high seas became an accepted principle of international law following the decision of the International Court of Justice in the Corfu Channel case. This right may not be suspended in time of peace so long as the passage is innocent.

In its draft article relating to straits, the International Law Commission proposed that the rule should apply only if the strait was "normally" used for international navigation. However, the conference was unwilling to adapt "extent of use" as a criterion to be applied in determining the applicability of the rule. Thus this proposed condition was rejected. But the Conference did accept a significant modification of the rule. The Article as adapted provides that there shall be no suspension of innocent passage through straits used for international navigation between two parts of the high seas or between one part of the high seas and the territorial sea of a foreign state. By extending the right to straits connecting the high seas and a territorial sea, the Convention liberalized the rule in the direction of freedom of the seas.

In defining what is "innocent passage" the Convention article departed from the text of the International Law Commission draft which provided that "Passage is innocent so long as a ship does not use the territorial sea for committing any acts prejudicial to the security of the coastal state* *." In lieu thereof the Conference

adopted the following definition: "Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state."

In placing emphasis on passage, as such, and not on the acts committed during passage the provision has broadened the rights of the coastal state and would seem to allow it to interfere with passage on such grounds as nature of the cargo or its ultimate destination.

THE DRAFT ARTICLE prepared by the International Law Commission relating to the passage of warships through the territorial sea would have authorized the coastal state to make such passage subject to either previous "authorization" or "notification." This became a controversial issue with the Western powers objecting to either notification or authorization claiming that warships should enjoy the same right of innocent passage as merchant ships. In the final voting the requirement of authorization was eliminated, and the proposed article (modified so as to provide for notification only) failed to receive the required two-thirds majority. Thus the general provision of the Convention relating to innocent passage which provides that "ships of all states ** * shall enjoy the right of innocent passage" applies to warships as well as merchant ships. While warships by reason of their special status enjoy immunity from the jurisdiction of the coastal state they must comply with the regulations of the coastal state in regard to passage and failing compliance may be required to leave the territorial sea. Submarines must navigate on the surface and show their flag.

It is a rule of customary international law that a coastal state may exercise limited jurisdiction in an area of the high seas contiguous to its coast for special purposes such as customs, sanitation and fiscal control. The United States was one of the first to claim this right and as early as 1790 Congress enacted laws providing for the enforcement of customs regulations within a zone extending 12 miles from the coast. In considering this principle the Conference deemed it desirable to additionally authorize the coastal state to prevent infringement of its immigration laws within such a zone.

Thus the article as adopted by the Conference provides that within a zone of the high seas contiguous to the territorial sea measured from the base line from which the territorial sea is measured, and not extending beyond 12 miles from the base line, a coastal state may exercise