The Hague Conference for the Codification of International Law (1930)

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Originally the law of the sea consisted of a body of rules of customary international law. Such unwritten rules often require further clarification. As rules of customary law are essentially qualified by the times, there is also a need for adaptability. To this end, codification of international law undertaken by a representative body of experts is a notable contribution to the development of the law. This is particularly true of the law of the sea. Initially, attempts to codify the rules of the international law of the sea were undertaken by various non-governmental bodies, such as the International Law Association, Institut de droit international and the Harvard Law School. Later, such attempts were made by intergovernmental conferences.

The first intergovernmental attempt to codify the law of the sea was the 1930 Hague Conference for the Codification of International Law. The Hague Conference was instigated by the League of Nations between 13 March and 12 April 1930, and was attended by forty-seven governments and an observer, i.e. the USSR. The Conference aimed to codify international law concerning three subjects, namely nationality, State responsibility and territorial waters. With regard to territorial waters, two issues, among various issues discussed at the Conference, are of particular interest: the nature of the rights possessed by a State over its territorial sea, and the breadth of the territorial sea.
With respect to the nature of the rights of the coastal State to the territorial sea, a clear majority of States, though not unanimously, supported the principle that the coastal State possessed territorial sovereignty over its territorial sea, the airspace above as well as the seabed and subsoil covered by these waters. Thus the Report adopted by the Second Committee at the Hague Conference stated that ‘it was recognized that international law attributes to each coastal State sovereignty over a belt of sea round its coasts’. At the same time, the right of innocent passage of foreign ships through the territorial sea was generally recognized because of the importance of the freedom of navigation. On the other hand, the breadth of the territorial sea was the most debatable issue regarding the law of the sea. Although no detailed historical examination can be made here, two different practices should be highlighted.
The first practice relates to the cannon-shot rule. According to the rule, the seaward limit of the territorial sea is determined by the range of cannon shot from the shore. It has been considered that the cannon-shot rule was accepted as a well-established rule in France, most countries in the Mediterranean and probably in the Netherlands as regards neutrality in wartime. According to the cannon-shot rule, the breadth of the territorial sea is changeable with the development of the range of the cannon shot.

The second practice is the one employed by Scandinavian countries, whereby the limit of the territorial sea is fixed by a distance from the coast. By the middle of the eighteenth century, Denmark and Sweden had advanced a maritime belt extending to 4 miles’ distance from the shore.
While the relationship between the cannon-shot rule and the 3-mile rule seems to remain obscure, some States strongly advocated the three-mile rule as the maximum limit of the territorial sea. In 1793, the United States first adopted the 3-mile limit as equivalent to the cannon-shot rule for purposes of neutrality on the outbreak of war between Great Britain and France. As typically shown in the Anna case of 1805, the 3-mile rule was also recognized in Great Britain. The adoption of the 3-mile rule by Great Britain was of particular importance due to its considerable naval power. Nonetheless, it would be incorrect to conclude that the 3-mile rule had become a universally accepted rule. In fact, the
Scandinavian countries continued to claim a 4-mile limit. Several countries, such as France and Italy, maintained different limits for different purposes.
The 1930 Hague Codification Conference brought to the surface doubts about the legal status of the 3-mile rule. While the majority States, including Great Britain and the United States, claimed that the breadth of the territorial sea belt was 3 miles, other States suggested various breadths beyond 3 miles, such as 4, 6 or 18 miles. France and Italy maintained different limits for different purposes. The challenge by those States undermined the authority of the traditional 3-mile rule, which favoured the interests of strong maritime States.
The positions of States were further complicated by the creation of the contiguous zone. The possible creation of an ‘adjacent’ zone or a contiguous zone in marine area beyond the territorial sea purported to achieve a compromise by accepting a narrow territorial sea and a contiguous zone for protecting coastal State interests in areas beyond the territorial sea. According to this bi-zonal approach, the coastal State would exercise territorial sovereignty over the territorial sea close to its coast, and then exercise limited jurisdiction over areas adjacent to its territorial sea. Nonetheless, this approach was unacceptable to some of the key maritime States, such as Great Britain and Japan.

In light of the wide cleavage of opinion between States, no rule was formulated with regard to the breadth of the territorial sea, and the Hague Conference ended without the adoption of a convention on the territorial sea. However, this does not mean that the Conference was without significance. Indeed, the Hague Conference produced valuable statements on important issues regarding the law of the sea. As noted, it must be remembered that the principle of freedom of navigation, territorial sovereignty over the territorial sea and the right of innocent passage through the territorial sea were generally recognized at the Conference.

source: international law of the sea, Tanaka

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