Order On the Sea: 1958 Geneva Conference Tackles Marine Boundaries

This continues the JAPAN Forward history series focusing on the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The world was undergoing major political transformations as its three universal conferences of 1958, 1960, and 1973-82 took place. Colonial rule was rapidly coming to an end, and new nation-states were ushered into the world order. 

Today, 169 countries and regions are parties to the convention. Recent challenges to maritime boundaries underpin the importance of an agreed international framework. Aside from sovereignty, ownership, access, and conservation of mineral and living marine resources are at stake. Recent contests for these resources are evident in the East and South China Sea, and the Pacific Islands region, for example, including China's unilateral expansion of its disputed nine-dash line into a ten-dash line. 

Part three of the series focuses on discussions regarding the territorial sea and contiguous zone during the 1958 conference.

Third in the series

First part Order on the Sea: Tracing the Genesis of UNCLOS

Second part Order on the Sea: Finding Early UNCLOS Unity One Piece at a Time

Traditionally states were regarded as exercising sovereignty over a belt of sea adjacent to their coastlines. This "territorial sea" was bounded by the high seas. Simultaneously, it was subject to a right of innocent passage by ships passing through the area. 

Nevertheless, the breadth of this sovereign maritime territory was never definitively settled, despite codification attempts in 1930, 1958, and 1960. Nevertheless, the significance of the Geneva Conventions remains a customarily historical expression of the "traditional law of the sea." 

Seeking Agreement on Size 

The International Law Commission decided to take on defining the terminology in 1958. In the process, it adopted the term "territorial sea" instead of "territorial waters." 

This and related terminology became official six years later on September 10, 1964, when the convention entered into force. They addressed issues such as baselines, bays, delimitation between states with adjacent or front-facing coasts, innocent passage, and contiguous zones. 

However, terminology alone was not the entirety of the Commission's work. Notably, Ambassador Arvid Pardo, Permanent Representative to the UN of the island state of Malta, triggered a process for the complete renewal of the law of the sea. He was regarded as the "Father of the Law of the Sea Conference" owing to his contribution to the modern law of the sea. 

Pardo's prophetic speech at the UN General Assembly on November 1, 1967, called for the protection of the oceans from arbitrary acquisition. He also made the pitch for a regime that efficiently administered marine resources. His argument underscored the relevance of customary international law provisions codified into international law through the Geneva Convention. 

It was always accepted that the sovereignty of a coastal state over its territorial waters also extended to the airspace above. Likewise, its sovereignty extended equally to the seabed and the subsoil below those territorial waters. Pardo simultaneously highlighted the strategic importance of the seabed and ocean floor for military and/or economic purposes. 

Ultimately, these concepts were reaffirmed in Article 2 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone. 

Limits of Agreement

Notably, major obstacles confronting the 1958 Conference revolved around agreeing on the legal limit of a coastal state's territorial sea. Any extension of the width of the nation's territorial sea cut down the freedom of all other nations to sail on, fly over, or lay cables in those waters.

Unsurprisingly, the Conference was unable to reach an agreement at the time. However, the three-mile limit had long been recognized in international law. Therefore, as their first goal, the United States, Britain, Japan, Holland, Belgium, Greece, France, West Germany, and other maritime nations, adopted a position preserving this traditional limit, except when there were already reasonably established greater historical limits. 

In the end, the Commission opted not to alter the traditional three-mile rule. Likewise, it declined to approve a twelve-mile limit. Instead, it left the final question for later. 

Against this complex background, the Conference attempted to clarify these holdover demarcations. 

Crucial Provisions of the 1958 Conference

The Convention on the Territorial Sea (CTS) was adopted at the Conference in 1958. It contains several crucial provisions. First among them is Article 16(4). It stipulates:

There shall be no suspension of the innocent passage of foreign ships through straits, which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State.

While outlining the Limits of the Territorial Sea, the later 1982 convention stated:

• Article 3 on the Breadth of the Territorial Sea. Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.
• Article 4 on the Outer Limit of the Territorial Sea. The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.
• Article 5 on the Normal Baseline. Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.

A Success or Failure?

It is often stated that the 1958 Law of the Sea Conference in Geneva was considered a failure. This has been attributed to a system lacking the power to implement its decisions. A June 1959 CIA Report titled, "Assessment of the Failure of the 1958 Geneva Conference to Adopt the US Position of the Breadth of the Territorial Sea" helps put this into perspective.

The report finds agreement was inevitably clouded by nations naturally favoring interpretations consistent with their own values, standards, and stereotypes. To a greater or lesser degree, their actions also reflected the 20th-century urge to impose values and standards on others. Hans Morgenthau termed this "nationalistic universalism." 

Although the 1958 conference failed in some of its goals, it nevertheless paved the way for the 1960 UN Conference on Law of the Sea.

Next: Read the rest of the series.

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Author: Dr Monika Chansoria

Follow Dr Chansoria's "Order on the Sea" series and find her column "All Politics is Global" on JAPAN Forward, and X (formerly Twitter). The views expressed here are those of the author and do not reflect the views of any organization with which she is affiliated.