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The Latin American Contribution to the Development of the Law of the Sea

Published online by Cambridge University Press:  28 March 2017

F. V. García-Amador
F. V. García-Amador*
Affiliation:
Department of Legal AffairsOrganization of American States (OAS)
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Extract

National claims, whether made unilaterally or at the regional or subregional level, play a fundamental role in the development of the law regarding the exploration, exploitation, and conservation of natural resources of the sea. The contribution to this body of law made by the Latin American countries has no parallel in any other group of countries or region. This contribution has been not only fruitful but extremely varied. Nevertheless, when the different types or categories of claims are analyzed, importantsimilarities can be noted among the more recentclaims

Type
Research Article
Information
American Journal of International Law , Volume 68 , Issue 1 , January 1974 , pp. 33 - 50
Copyright
Copyright © American Society of International Law 1974

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References

1 This article deals only with the unilateral, regional, or subregional claims made by the Latin American countries, as reflected in domestic legislation and other official sources. The contribution made by organs of the OAS, which has also played an important role in the development and codification of the new law of the sea, has been’ excluded. For information on this aspect, see the following: Draft Convention on Territorial Waters and Related Questions prepared by the Inter-American Juridical Committee (1952), OAS Doc. CIJ-11; Resolution XIX, “Territorial Waters and Related Questions,” of the Inter-American Council of Jurists, Final Act of the Second Meeting (Buenos Aires, 1953) Doc. CIJ-17, at 52; Resolution LXXXIV, “Conservation of Natural Resources: The Continental Shelf and Marine Waters,” of the Tenth Inter-American

Conference (Caracas, 1954), Final Act, at 85; Report on Territorial Waters and Related Questions of the Inter-American Juridical Committee (1955), Doc. CIJ-25; Resolution XIII, “Principles of Mexico on the Juridical Régime of the Sea,” of the Inter-American Council of Jurists, Final Act of the Third Meeting (Mexico, 1956), Doc. CIJ-28, at 36; Resolution I of the Inter-American Specialized Conference on “Conservation of Natural Resources: The Continental Shelf and Marine Waters” (Dominican Republic, 1956), Final Act, at 13. Later the Inter-American Juridical Committee prepared an Opinion on the Breadth of the Territorial Sea (1965), Doc. CIJ-80, and four resolutions about the Law of the Sea: 1971, Doc. CJI-6, at 121; 1972, Doc. CJI-8, at 15; 1972, Doc. CJI-9, at 27; and 1973, Doc. CJI-13, at 85.

2 Presidential Proclamation No. 2667, concerning the Policy of the United States with respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf and Presidential Proclamation No. 2668, concerning the Policy of the United States with respect to Coastal Fisheries in Certain Areas of the High Seas. 59 U.S. Stat. 485, 885 (1945); 13 Deft. State Bull. 485–86 (1945). 1 Un Secretariat, Laws and Regulations on the Regime of the High Seas 38 and 112 respectively (ST/LEG/SER. B / l , 1951) [hereinafter cited as UN Laws and Regulations].

3 Spanish text in El Universal (Mexico City) Oct. 30, 1945; English translation in UN Laws and Regulations, supra note 2, at 13.

4 See League of Nations, 3 Acts of the Conference for the Codification of International law, Minutes of the Second Comm. on Territorial Waters, Off. No. C.351(b), M145(b) (1930), V. proposals by Portugal, at 19, 125, 193; Belgium, at 134; Iceland, at 142, 189; and Denmark, at 25.

5 Dominican Republic, Law No. 3342, July 13, 1952 (Gaceta Oficial, July 19, 1952), modified by Law No. 186, Sept. 13, 1967 (Gaceta Oficial, Sept. 16, 1967); Cuba, Decree-Law No. 1948, Jan. 25, 1955 (Gaceta Oficial, Jan. 27, 1955); and Venezuela, Law of July 27, 1956 (Gaceta Oficial No. 496, Extraordinario, Aug. 17, 1956). For pertinent passages of these legal instruments, as well as others mentioned subsequently, see Garcia-Amador, F. V., Latin America and the Law of the Sea (Law of the Sea Institute, University of Rhode Island, Occasional Paper No. 14, July 1972)Google Scholar.

6 Exceptions are the Guatemalan Petroleum Law of Aug. 30, 1949 (Diario de Centro América, Organo Oficial del Gobierno de la República de Guatemala, Sept. 27, 1949); Brazilian Decree No. 28.840, Nov. 8, 1950 (Diário Oficial, Nov. 18, 1950); the Constitution of El Salvador and that of Nicaragua, both of 1950, and certain other subsequent instruments.

7 Even the claims abovementioned (supra note 6) differ from the North American Proclamations in the sense that they affect not only the resources of the continental shelf but the submarine area as a whole.

8 Decree No. 14, 708, Oct. 11, 1946 (Boletín Oficial, Dec. 5, 1946), Arts. 1 and 2, respectively. The other instrument referred to is Decree No. 1,386, Jan. 24, 1944 (Boletín Oficial, March 17, 1944), which had established that “pending the enactment of special legislation, the zones at the international frontiers of the national territories and the zones on the ocean coasts, as well as the zones of the epicontinental sea of Argentina, shall be deemed to be temporary zones of mineral reserves” (italics in the original).

9 See Amor, Sepúlveda, Derecho del Mar. Apuntes sohre el Sistema Legal Mexicano, 13 Foro Internacional, El Colegio de México, 244 (1972)Google Scholar. In the President’s Oct. 1, 1959, Message (Iniciativa) to Congress on these and other amendments, he proposed abandoning the amendments on the superjacent waters. See the text of the President’s Message in 4 Derechos del Pueblo Mexicano: México a Través de sus Constituciones. A publication by the XLVI Legislature of the House of Representatives, Mexico, at 823, cited by Sepúlveda, at 238.

10 Gaceta Oficial, Dec. 24, 1946.

11 La Gaceta, Diario Oficial, Jan. 22, 1951, approved by Executive Decree No. 96, of Jan. 28, 1950.

12 The term “epicontinental sea” appears in the Declaration of Antigua Guatemala, signed by the Ministers of Foreign Affairs of Central America on Aug. 24, 1955. It is used in the sense of considering the maritime zone as part of the “territorial patrimony” of the Central American states. See the complete text of the Declaration in ODECA, Reuniones Y Conferences de Ministros de Relaciones Exteriores de Centroamerica, 1951–1967, at 45–47. The word “epicontinental” appears again in two more recent Uruguayan instruments: the Resolution of Dec. 26, 1963 (Diario Oficial, Jan. 21, 1964) and Decree 235/969 of May 16, 1969 (Diario Oficial, May 23, 1969).

13 English text in UN Legislative Series, Laws and Regulations on the Regime of the Territorial Sea 723 (ST/LEG/SER.B/6, 1956).

14 English translation in UN Laws and Regulations, supra note 2, at 6.

15 Id., at 16. Spanish text in El Peruano, Diario Oficial, Aug. 11, 1947.

16 La Gaceta, Diario Oficial, July 29, 1948.

17 No. 803, Nov. 2, 1949 (La Gaceta, Nov. 5, 1949).

18 With regard to this revision of the original Decree-Law, it should also be recalled that the Government of Costa Rica subscribed to the Protocol of Adherence to the “Declaration on the Maritime Zone” or “Declaration of Santiago” signed by the three countries signatories of the Declaration in Quito on Oct. 6, 1955. Later, however, the President of Costa Rica vetoed a bill to ratify adherence to the Protocol and made a declaration relating thereto on Nov. 21, 1966. On this and other matters relating to the Costa Rican claim see FAO, Limits and Status of the Territorial sea, Exclusive Fishing Zones, Fishery Conservation Zones and the Continental Shelf, 18, note 10 (1971).

19 Supra note 11.

20 Supra note 13, at 724.

21 In this connection, see García-Amador, , The Exploitation and Conservation of the Resources of the Sea, A Study of Contemporary International Law, at 77–79 (1963)Google Scholar.

22 See Arts. 1 and 14 of the Convention. 15 UST 1606; TIAS No. 5639; 516 UNTS 205; 52 AJIL 851 (1958).

23 Infra note 35.

24 See Art. 2 of the Convention. 13 UST 2312; TIAS No. 5200; 450 UNTS 82; 52 AJIL 842 (1958).

25 Registro Oficial, Nov. 11, 1966.

26 Registro Oficial, June 4, 1970.

27 Law No. 31, Feb. 2, 1967 (Gaceta Oficial, Feb. 14, 1967); English translation in UN Legislative Series, National Legislation and Treaties Relating to the Territorial Sea, The Contiguous Zone, The Continental Shelf, The High Seas and to Fishing and Conservation of the Living Resources of the Sea 105 (ST/LEG/SER.B/15, 1970).

28 Diario Oficial, March 30, 1970.

29 Diario Oficial, April 2, 1971. Neither of these decrees has thus far appeared in English translation in the UN Legislative Series. This also explains why references are not always made to the English texts of more recent Latin American legislation examined in the next section.

30 Executive Decree No. 1-L, April 5, 1965 (La Gaceta, Diabio Oficial, April 8, 1965). English text in UN Legislative Series, supra note 27, at 656.

31 Legislative Decree 316, March 12, 1958 (La Gaceta, April 17, 1958).

32 Boletin Oficial, Jan. 10, 1967.

33 Boletin Oficial, Oct. 31, 1967. English texts of the two laws in UN Legislative Series, supra note 27, at 46 and 569, respectively.

34 Boletin Oficial, Nov. 24, 1967.

35 Diario Oficial, Jan. 5, 1970, which incorporated the provisions of Decree No. 604/969, Dec. 3, 1969 (Diario Oficial, Dec. 9, 1969).

36 Decree No. 2204-RE, Feb. 10, 1972 (La Gaceta, Feb. 24, 1972).

37 Decree No. 2203-BE.

38 The Specialized Conference, attended by the Ministers of Foreign Affairs of nearly all the participating countries (Barbados, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Trinidad and Tobago, and Venezuela), was the culmination of two earlier meetings: an informal one held in Caracas (Nov. 24–26, 1971) and a meeting of the Preparatory Committee of the conference held in Bogotá (Feb. 2–10, 1972). Five participating countries did not sign the Declaration of Santo Domingo: Barbados, El Salvador, Guyana, Jamaica, and Panama. This Declaration does not have the same juridical character as the Declaration of Santiago which contains a claim having the effects of domestic legislation. Rather it is similar in nature to the Declarations of Montevideo and Lima (infra note 60) which are merely statements of principles. The documentation of the Specialized Conference and the two meetings that preceded it has had only limited distribution which was handled by the Ministry of Foreign Affairs of the respective host country.

39 See the complete text of the Declaration in 66 AJIL 918 (1972) and 11 ILM 892 (1972).

40 The complete text of the draft articles proposed by the three countries appears in 12 ILM 570 (1973).

41 Informe Preliminar sobre el Derecho del Mar, Mar Territorial y Mar Patrimonial (Bases para una posición latinoamericana sobre el derecho del mar). (Mimeo) Complete text in Ohrego Vicuña, Chile y el Derecho del Mar, 137 et seq (1972).

42 UN Doc. A/AC.138/SR.64, Aug. 12, 1971, at 47.

43 Speech made at the inaugural session of the Preparatory Committee (Bogotá) of the Conference of the Caribbean Countries on the Problems of the Sea, CCM/CP-14, Feb. 2, 1972.

44 Report of the Committee on the Peaceful Uses of the Sea-Bed, 28 GAOR Supp. 21 (UN Doc. 9021) at III, 30.

45 See Art. 3 of the Convention on the Continental Shelf. 15 UST 471; TIAS No. 5578; 499 UNTS 311; 52 AJIL 858 (1958). Reference should also be made here to the Message of the President of Mexico to Congress (supra note 3) in which it was admitted that “. . . the pretense of exercising sovereignty over all the waters that cover the continental shelf is, at this time, contrary to international law. That thesis was clearly and finally repudiated by the United Nations Conference on the Law of the Sea, at which 86 states were represented, that is, almost the entire international community. . . .”

46 As an exception, attention should be called to the Argentine proposal at the second session of 1973 of the UN Seabed Committee, to the effect that “A coastal State has sovereign rights over an area of sea adjacent to its territorial sea up to a distance of 200 nautical miles measured from the baseline from which the breadth of the territorial sea is measured or up to a greater distance coincident with the epicontinental sea.” See Report (supra note 44) at III, 79.

47 See Report (supra note 44) at III, 79. The proposal which was approved by the Committee of the Whole of the Conference, but failed by one vote to obtain the necessary two-thirds majority in the Conference itself, provided that in the contiguous zone the coastal state would have “the same rights in respect to fishing and the exploitation of the living resources of the sea as it has in its territorial sea.” See Second UN Conference on the Law of the Sea, Official Records, Summary Records of Plenary Meetings and of Meetings of the Committee of the Whole, Annexes and Final Act, 170.

48 Such is the case of the Brazilian Decree-Law No. 44, Nov. 18, 1966 ( Diario Oficial, Nov. 21, 1966), which fixed the breadth of the territorial sea at six miles and established a contiguous fishing zone six miles wide; the Mexican Law on the Exclusive National Fishing Zone, Dec. 13, 1966 (Diario Oficial, Jan. 20, 1967), which established a zone 12 miles in breadth; and the Decree (unnumbered) of Uruguay, Feb. 21, 1963 (Diario Oficial, May 10, 1963), which fixed the breadth of the territorial sea at six miles and established a contiguous fishing zone six miles wide. The only Latin American legislation continuing in force is Colombian Decree No. 3183, Dec. 20, 1952 (Diario Oficial, Jan. 10, 1953), which was enacted into law by Law No. 141, Dec. 16, 1961 (Leyes de 1961, at 526) and which establishes a contiguous zone of nine miles measured from the outer limit of the territorial sea (three miles), for purposes including “fishing.”

49 Cited supra note 13.

50 Cited supra note 39.

51 With regard to the territorial sea, the draft articles presented by Brazil at the second session of 1973 of the Seabed Committee provide for the right of the state “to establish other modalities or combinations of legal régimes of sovereignty, jurisdiction or specialized competences in the marine area adjacent to its coasts.” See Report (supra note 44) at III, 29.

52 By way of illustration, the UN International Law Commission admitted the validity under international law of setting the breadth of the territorial sea between three and 12 miles. See Report of the International Law Commission Covering The Work of its Eighth Session (April 23-July 4, 1956), UN Doc. A/CN.4/104, Art. 27 and commentary.

53 See Report (supra note 44) at III, 23. At least until such time as the thesis of a “plurality of régimes” for the territorial sea finds acceptance, the claim contained in current Uruguayan legislation is rather like the type of 200-mile claim examined in the proceeding section.

54 Supra note 39.

55 This explains the observation made by the Delegate of El Salvador, Ambassador Reynaldo Galindo Pohl, to the effect that by declaring in the Declaration of Santo Domingo that “the patrimonial sea consists of rights of sovereignty over resources, a substantial step is taken to bring the thesis of the patrimonial sea closer to the Salvadorean thesis of the special territorial sea, pursuant to which the national maritime jurisdiction is one unit of sovereignty which is self-limiting and is divided into belts with different legal régimes in accordance with the different interests therein.” See Conferencia Especializada de Los Países del Caribe sobbe los Problemas del Mar, Doc. CCM/RE/11.

56 On the subject of these restrictions on the enjoyment of the traditional freedoms of the high seas, the fact should not be overlooked that, leaving behind the strict standards of the traditional law of the sea, Art. 5 of the Convention on the Continental Shelf (supra note 45) also authorizes interference with those liberties, so long as it is not unjustifiable.

57 The Declaration reads as follows: “The waters situated beyond the outer limits of the patrimonial sea constitute an international area designated as high seas, in which there exists freedom of navigation, of overflight and of laying submarine cables and pipelines. Fishing in this zone should be neither unrestricted nor indiscriminate and should be the subject of adequate international regulation, preferably of worldwide scope and general acceptance.” Cited supra note 39.

58 With regard to the patrimonial sea, in its earliest formulation it was noted that “. . . it transcends the concepts of the territorial sea and the high seas in classic international maritime law, having to some degree characteristics of both, since in the repart of the patrimonial sea located beyond the territorial sea all the freedoms of the high seas govern except, naturally, that of fishing; that is, within the patrimonial sea there is broad freedom of navigation, of overflight, and of laving cables and undersea pipelines, all freedoms which have no limitation other than that of not interfering with the patrimonial rights of the coastal State.” See Vargas Carreno, supra note 41.

59 This right of the coastal state and the limits to which it is subject are explicitly stated in much of the legislation and other sources referred to in this paper.

60 The Montevideo Declaration was signed, in the following order, by Chile, Peru, Ecuador, Panama, El Salvador, Argentina, Brazil, Nicaragua, and Uruguay. The Declaration adopted in Lima received the affirmative vote of 14 countries: Argentina, Brazil, Chile, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, and Uruguay. Three countries voted against it: Bolivia, Paraguay, and Venezuela. Trinidad and Tobago abstained. Barbados and Jamaica were absent during the voting, Costa Rica was represented by an observer, and Haiti did not attend the meeting. The complete English text of the declarations appears in 9 ILM 1081 (1970) and 10 ILM 207 (1971), respectively.