Address to the First Committee of the United Nations General Assembly on March 17, 1958

In the very first speech in the general debate, the distinguished Delegate of Saudi Arabia paid a rich and well merited tribute to your ability, by using one of the exceptions to the Hearsay Rule of the Law of Evidence. If I may be permitted to emulate the renowned jurist from Saudi Arabia, too, would like to draw on the same body of law by urging this Committee to take Judicial Notice of your erudition and eminence. I say this because I most sincerely mean it and not because it is the unwritten law of such conferences to indulge in courteous preliminaries. Nor, indeed, to win your sympathy, for, Sir, my delegation has much too much of faith in your impartiality to sway sway you by semantics. Having said this, I pray that my delegation, like that of the United Kingdom, has made a really successful bid for your sympathy.

As a member of the Commonwealth of Nations, Pakistan takes particular pride in your election, and as Asians, we feel elated in seeing an Anglo-Saxon Asian in the Chair. My delegation also welcomes the election of the Vice-Chairman and the Rapporteur. Together you form a impressive trinity of scholars.

My delegation would also like to voice its admiration and appreciation for the balanced and empirically constructive draft code on the Law of the Sea. It is the product of a great labor. Each member of the Commission is to be applauded for the individual and collective contribution made towards the accomplishment of this learned and coherent maritime code. Special tribute is, however, due to Professor Francois. We all know that without his painstaking effort, without his juristic wisdom and experience, this draft code would not have been as complete as it is. This document seeks to reflect the realities of the International Community as faithfully as possible. It seeks to strike the cord of compromise by skillfully associating recent trends and developments with the rules of the past, rules that have acquired a character of permanence despite the relentless grind of time and space.

However, my delegation would like to make it abundantly clear that our appreciation of the report does not in any way bind or commit us to the draft articles in their entirety. According to the object of this general debate, my delegation will, at this stage, confine itself, as far as possible, to the enunciation of principle and policy. When a detailed discussion of the articles takes place, my delegation will intervene whenever the discussions so warrant.

This report of the International Law Commission is indeed an all embracing one. It covers all aspects of the law pertaining to the sea. In addition to the vast canvas that has to be covered by this Conference of Plenipotentiaries in so short a period of nine weeks., the General Assembly has, by resolution 1105(XI), called upon us to study the question of free access to the sea of land-locked countries. As it is, the truly germaine issues are complicated enough to take up the entire time of this conference. Despite this we have been assigned additional burdens.

It is my delegation’s conviction that if we are to achieve some measure of success, we must discipline our deliberations in such a fashion as to tackle only those issues that form the subject matter of the report “ per se”. It is far better and far more constructive to achieve limited and modest results than to dabble in each and every controversial issue without any result.

We have to arrive at solutions to problems that cover the surface of vast oceans and the space beneath and above them, measure the breadth of the sea and examine its freedom, and give attention to the Continental Shelf and the Contiguous Zone. Doctrines and rights relating to Innocent Passage and Hot Pursuit have to be scrutinized. These and a multitude of other crucial aspects of the Law of the Sea have to be considered and, if possible, settled. The verdict of this conference will, without doubt, affect most significantly the conduct of nation-states vis-à-vis the sea. Too much is at stake and too many vital interests involved for us to cherish unfettered hope. Nevertheless, hope and faith prompt us to move forward with guarded optimism. We are conscious of the failures of the past but are also poignantly aware of the dictates of this thermo-nuclear age that gives us the ultimatum to either embrace peace with the arms of law, or perish for ever into the graveyard of a world Carthage.

The law on the subject we are called upon to codify is prolific. There is a mass of documentation on it. The International Law Commission has, as a result of its eight years of unremitting labor, collected and correlated all the Law of the Sea in its draft. The document containing the draft articles greatly facilitates our task but much ground has still to be covered to complete the work.

Codification as used in Municipal Law cannot be applied to International Law in its purest context. Only well recognized and settled rules of law are the subject matter of codification. New laws, laws in their embryonic and formative stage, cannot be codified. Such an attempt would be injurious both to the norm itself and the society is seeks to regulate. New rules must be permitted to mellow and mature before they are tabulated into a code. Whereas old and established rules of law are codified, new laws are enacted by legislative organs of the state. Had we gathered here as legislators of a world parliament we could have formulated new rules of law into a statute. International Law being as decentralized as it is, can only give us the mandate to codify existing law, and that too, if we stretch the meaning of the world codification to a point where it all but soaps. If this proposition is accepted, new rules of International Law, as contemplated in article 13 of the Charter of the United Nations may be recognized but not codified.

During the course of this debate we have heard several eloquent and euphemistic references to the progressive development of International Law. Times have undoubtedly changed. Institutions and values of yore have become effete. Invincible states that controlled the destinies of teaming multitudes are now weak and vulnerable. Those held in bondage are now free, and with that freedom, have changed the path of history. Revolutionary changes, to achieve normalcy, call for revolutionary laws. That the pattern of humanity has undergone a radical change is admitted; only those who are spiritually and culturally barren will deny it. It is also agreed that law must mirror most faithfully the pace of human activity and conduct. However, by its very infinite nature, new law can be created and recognized but not codified until it is fully developed.

Pakistan is deeply concerned with all the Law of the Sea. Each part of this law is so wedded with the other as to form a composite whole. Both wings of Pakistan have fairly large coastlines. Its fisheries are of considerable economic importance, both from the point of view of consumption in the country and of export. Our fisheries industry is developing rapidly and its potential advancement carries a great promise not only for the many citizens directly concerned with this industry but also for the prosperity of the nation as a whole. The wealth of the sea-bed and its subsoil, both of the Territorial Sea and of the Continental Shelf, are being explored by modern techno-logical means. Most important of all, it is the sea that connects East and West Pakistan and through this mighty force of nature we maintain the geographical indivisibility of our state. Perhaps for this reason, the concept of the Freedom of the High Seas has far greater meaning for us than for many other states, including the great maritime powers.

There are two paramount aspects of the Law of the Sea that must by synthesized. In dialectical terms the thesis is the doctrine of Freedom of the High Seas and the antithesis, the Right of the Coastal State to a Territorial Sea. The clash of these two fundamental rules does not only suggest a clash of norms but also a keen and critical rivalry between International Law and National Law, between the sovereignty of states and that of International Law.

Our primary duty is to reconcile this conflict. Each of these important aspects of the Law of the Sea carries with it a set of rights and obligations. The breadth of the Territorial Sea has an immense bearing on the coastal state, indeed it is within its sovereign domain. This view has remained by and large unchallenged since the time of Bartholus. It is indispensable for the security and socio-economic well-being of the coastal state to exercise sovereign rights over its Territorial Sea. This right, though sovereign, is not absolute, No right is absolute, not even the fundamental rights guaranteed in the constitutions of municipal states. The limitations on this right over territorial waters have been mentioned often enough in this debate and do not require repetition. Similarly, the concept of Freedom of the High Seas permits no one to make the High Seas an arena for anarchy and chaos. The Freedom of the High Seas means that they are open to all nations without discrimination and without let or hindrance.

It is so important a freedom that in 1918 President Woodrow Wilson proclaimed it as the first principle of his fourteen points. Its importance over the years has not diminished. Both President Roosevelt and Prime Minister Mr. Churchill reiterated and re-emphasized this freedom in the Atlantic Charter. Important though this freedom is to all nations, it is not absolute in form or content. For example, ships on the High Seas are subject to the jurisdiction of the flag state, and likewise, piracy and slave trade are subject to international jurisdiction. In recent times some authorities have contended that the Doctrines of the Contiguous Zone and the alleged right to explore without limit the Continental Shelf have made further inroads into this freedom. None can therefore question the truism that neither the sovereign rights of the coastal state over Territorial Waters nor the Freedom of the High Seas are absolute. One can, however, challenge with cogency the degree of legitimate interference with the right over Territorial Waters and with the Freedom of the High Seas.

Numerous interesting arguments have been advanced in favor of and against the three mile rule. The defenders of the classical standard have in the main contended that the three mile limit is the only recognized limit permissible under International Law and that article 3 of the draft code of the International Law Commission confirms this vies. The conclusions drawn from article 3 and the commentary thereon are that as long as certain territorial claims are not based on a generally recognized rule of International Law they cannot be valid erga Cummcs. Article 38(1) b of the Statute of the International Court of Justice is quoted in support of this contention. These are forceful contentions and my delegation has heard and studied them with care.

My delegation has given equal attention to the arguments advanced against the classical rule. Those who claim a ceiling of twelve miles have sought to rest their contention chiefly on the ground that the maximum limit of twelve miles is the recognized norm of International Law as spelt out in article 3 of the draft code. This clearly indicates that article 3 is subject to conflicting interpretation. I would like to mention that my delegation has also taken cognizance of the views of delegations that have chosen to ignore article 3 altogether and demand an extensive territorial limit stretching to hundreds of miles. They claim that they cannot be bound by those rules of law in the formulation of which they played no part. They thus, have an honest approach to the subject. They reject totally the old norm on the ground that rules formulated way back in 1703 cannot remain valid in the fast changing and dynamic conditions of the present. For them, the three mile rule founded on the range of cannot shot is clearly a relic of the past and therefore cannot find any place in the panoply of modern international affairs. They vehemently denounce the classical rule for the following, amongst other, reasons:

(1) That when these rules were formulated, they were under colonial domination and had no voice in their creation.
(2) That for reasons of security the three mile rule must be abandoned.
(3) That economic needs demand, in the interest of conservation, an extension of the Territorial Sea.
(4) That regional needs and circumstances require such action.

These are all extremely attractive arguments. But I would like to say, not by way of a rebuttal, but for the purpose of exploring these arguments, that some authorities hold that when a nation is under colonial domination, the ‘WILL’ of that nation is expressed through and by the country exercising sovereignty over it. They add that only when the nation in question acquires its independence does it become a member of the international community with a distinct and separate personality and that all the rules of International Law existing at the time are binding on it. Should it be opposed to certain rules, it must follow the procedure laid down by International Law for the repeal amendment, and modification of such rules. It cannot unilaterally repudiate them on the ground that it was not a member of the international community at the time when they were formulated. If such a course of action were legally permissible, there would be widespread uncertainty in International Law. There is, however, no need to enter into this controversy. At the time of this conference, the states that hold the aforesaid views are free independent sovereign states. Among others, they have been called upon to pronounce the limit on territorial waters. They are now free, wholly free, to pronounce their verdict in favor of Article 3 as interpreted by them.

Much has been made of the argument that the three mile limit is obsolete and that its raison deter, the artillery range of the cannon shot, has vanished altogether, and that advances of modern science call for much greater breadth of the Territorial Sea for the protection and security of the states concerned. Whether the three mile rule has its origins in the cannon shot range is, from historical considerations, rather uncertain. Reference to a learned article on this subject in the American Journal of International Law for October, 1954, under the title “The historical origin of the three mile limit” will reveal that the real origin of the three mile rule lies in the principle of the marine league.

The range of artillery increased far beyond three miles in the early phases of the 19 th century without affecting the principle of the three mile limit. If, for security reasons alone, the three mile limit was fixed within the range of the cannon shot extensions would have automatically followed in the breadth of the Territorial Sea. But we have seen that while artillery range progressed tremendously, the three mile rule remained unchanged. Furthermore, even when the range of the cannon was well within three miles, and indeed even before that, there were cases in which territorial limits were fixed beyond three miles. For example, in the Middle Ages, the Italian states claimed a Territorial Sea of 100 miles on the basis of Sassoferrato’s theory. The three mile rule, therefore, cannot be condemned and discarded on the ground that its utility from the point of view of security has disappeared. Even if there was some vague historical connection between the three mile limit and the artillery range, that connection was lost many many years ago. Hence, it is respectfully submitted that this relationship has been grossly exaggerated. However if the sole purpose or even the chief purpose of the Territorial Sea is based on the need of defense and security under modern conditions, in this age of intercontinental ballistic missiles, even an extension of 200 miles would be hopelessly inadequate.

Much has also been said on the anachronism of the traditional breadth. I have already stated that we are in full accord with the view that new conditions demand new laws. Albeit, these new rules must, however, stem from recognized norms. In the hierarchy of norms the basically sound and pragmatic norms of Customary International Law form the base of the pyramid. Without this base you cannot have a legal edifice. By all means discard useless and moribund norms but for the sake of progressive development of International Law do not tamper with old, recognized, and highly beneficial laws on the ground that they are old.

Perhaps it may be useful to recall the words of the Representative of the United States of America in the 6th Committee of the 11th session of the General Assembly contained in document A/Conf, 13/19 at page 485, and I quote;

“It is, of course, correct to argue that we should not blindly follow a rule merely because it has persisted for many years. We agree that a law should not be retained because it is old but neither do we believe that a law must be regarded as obsolete and should be abandoned just because it is ancient. On the contrary, there is a strong presumption that a long accepted rule of law has valid and sound reasons for persisting throughout the years. The rules of the world are examples of rules of conduct which have an ancient origin but which continue to have validity in modern times. The Ten Commandments are ancient, but that does not mean that they are obsolete. The teachings of the Korean are old, but that does not make them invalid today. I do not, of course, mean to suggest that the 3 mile rule is on the plane with the laws laid down in the Ten Commandments or in the Koran, or that it is of the same character. But I do strongly urge that those who advocate changing a rule that has been upheld through the years have the very heavy burden of demonstrating that the rule has outlived its usefulness and can no longer be upheld.”

Far be it from me to compare the immutable laws of God with the transitory laws of man. However, I would maintain that ancient laws are not always redundant merely because they are old. The onus of proving their redundance rests on those who challenge their validity and it is so heavy an onus that it cannot be discharged by mere platitudes.

Extensions in breadth of the Territorial Sea have also been justified on economical grounds. With respect to conservation of fisheries, the Pakistan delegation intends to express its views on the economic problems in the 3rd Committee. Here I will only say that if conservation of fisheries prompts incursions into the Freedom of the High Seas, that object cannot thus be fulfilled, at least in our part of the World. If extensions are made for the purpose of exclusive exploration and exploitation, then, not only is the aim of conservation defeated but also the desire for exploitation. The High Seas are free to all. Every nation large and small, old and new has the right to take the fullest advantage of the resources provided by this freedom. The argument that this freedom is illusory in that only the great maritime powers can take real advantage of it is a defeatist attitude. The life of a nation cannot be measured in terms of decades or generations. Nations that have faith and confidence in their intrinsic strength must have the vision to think of their interests in terms of centuries. After all, what are fifty years or even a hundred in the histories of countries that hold the legacy of civilizations dating back to Mohen-jo-daro and Pompeii. If the United States of America could subscribe to the doctrine of the Freedom of the High Seas at a time when she was not able to take full advantage of that freedom, at a time when she was too young to compete with the then great maritime powers, why cannot the other young and virile nations do the same? The United States of America accepted this freedom because it had absolute faith in its manifest destiny. We too have or ought to have faith in our greatness and accept this freedom today although we may not be in a position at present to compete with the more advanced states in the maximum utilization of the Freedom of the High Seas. In this spirit, we accept the concept of the freedom of the High Seas.

It has been contended in certain quarters that regional conditions necessitate the extension of territorial limits. Such a course would, however, defeat the principle of uniformity which is of supreme importance to law. One of the cardinal objects of the rule of law is to maintain equality before the law or the equal subjection of all classes to the established law. The rule of law in this sense excludes the idea of exemptions from the duty of obedience to the law which governs the others. Under the rule of law as opposed to arbitrary power, one rule cannot be prescribed for me and another for you. Therefore, it would be a violation of the rule of law if subjective and arbitrary claims were made as exceptions to the recognized law on the ground of regional requirements.

The proponents of the 12 mile limit and those who claim that the law recognizes a minimum limit of 3 and a maximum of 12 and permits the fixation of territorial limits within this margin have to some extent adopted a fair portion of the arguments of those who base their claims on limitless extension of territorial rights. Hence the apparent objections to the submissions put forward by those who stand for unlimited extension hold valid for those who claim the breadth of 12 miles and also for those contending that it ranges between 3 and 12 miles. In addition to the common arguments the proponents of this view hold that Article 3 of the draft code of the International Law Commission recognizes a minimum of 3 and a maximum of 12 miles. As I have said earlier, Article 3 is open to conflicting interpretation. This is indeed regrettable as this is the pivotal article of the whole draft.

According to the rules of interpretation a statute is to be expounded “according to the intent of them that made it”. If the words are in themselves precise and unambiguous on more is necessary than to expound those words in their natural and ordinary sense but apparently the debates in this Committee and even the discussions in the 6 th Committee of the 11 th session of the General Assembly indicate that the draft article under consideration has caused some difficulty as to its intention. It is not my delegation’s object to criticize the draft of so eminent a body. We merely observe that the interpretation given to Article 3 has not been uniform. In this even it is necessary to draw on external and historical facts to convey the true intentions. Among the external facts one may call to aid the records and proceedings of the discussions that preceded the draft. The record of the International Law Commission seems to indicate that in 1955, the 3 miles rule was implicitly recognized as the only binding rule of International Law, as this rule was the only rule the commission held erga omnes .

There are at least two other rules of interpretation that support this submission: –

(1) the rule of avoidance of some absurdity, repugnance, or inconsistence with the rest of the instrument; and
(2) the presumption against intending what is inconvenient or unreasonable.

If we interpret Article 3 to mean that it permits a minimum of 3 miles and a maximum of 12, we would be admitting an interpretation that would lead to uncertainty and confusion. It would be repugnant to the very object of law. The prime object of law is to establish certainty and thereby create an orderly regulation of society. If every state is given the license to fluctuate and oscillate at its whim and fancy between 3 and 12 miles. International Law would abound in uncertainty followed by immeasurable inconvenience. Such a procedure would be highly detrimental to all concerned. Its obvious repugnancy is clear from the fact that instead of creating stability it would foster chaos. With each periodical change in the limits of Territorial Waters the Law of the Sea would undergo a drastic change. Such alterations would indubitably have their serious ramifications in each and every aspect of the Law of the Sea with the result that the entire body of law would be in a state of flux. Frequent changes between 3 and 12 miles would, for instance, affect the Contiguous Zone and the Freedom of the High Seas. So also the fisheries rights. However, even if frequent changes were not permitted or made within this range, it would be nonetheless contrary to the rule of law for it would lead to inequality of opportunity and status before the law. This inconvenience and absurdity must be avoided.

However, in my humble submission, Article 3 does not raise a question of interpretation as it does not propound a legal proposition. It is a bare statement of fact. It restates a factual position and leaves it to this conference to determine the legal position according to the rules of Customary International Law.

Pakistan recognizes the customary rule of International Law to be that of 3 miles. In so doing my delegation does not rest its case on an interpretation of Article 3 or on any other reason advanced hitherto by the supporters of the 3 mile limit. My delegation does not want to go into the rights or wrongs of the cannon shot rule, or into the historical origins of the 3 mile rule. Nor does it want to base its case on geographical considerations. My delegation adheres to the 3 mile rule for one fundamental reason. We view this issue as a clash between National and International Law. Those who want the maximum limit to the Territorial Sea are in fact trespassing on, and even usurping, the rights of International law in that they are making serious inroads into the concept of the Freedom of the Seas. Those who want to exercise the minimum breadth of sovereignty over the seas are actually subordinating municipal interests to those of International Law. The High Seas lie in the exclusive jurisdiction of International Law, whereas the Territorial Waters are in the exclusive jurisdiction of National Law. In order to make a genuine contribution to the progressive development of International Law, my delegation holds that the minimum of 3 miles limit ought to be, and is, the only valid limit legally recognizable by the comity of nations. Herein we have shown our bona fide intentions to uphold the supremacy of International Law. We invite other delegations to make the same contribution to the progressive development of International Law by recognizing this limit.

We do not believe in the policy of grab. In the past imperial powers grabbed as much land as possible. Now that those lands are free they, more than others, should recognize the innate wickedness of this policy by refraining from grabbing large areas of the ocean to satisfy the appetite for appropriation. We do not believe in the concept of a maritime “Lebensraum”. We will hold and take what is legitimately ours and not an inch more of anything, be it land, air, sea, or outer space.

My delegation would like to state quite clearly that we do not recognize unilateral declarations purporting to extend Territorial Waters beyond 3 miles. We can never acquiesce in a measure that strikes International Law so squarely in the face. This should be known to all and particularly to those who are situated in our geographical region. Insofar as the Contiguous Zone is concerned, my delegation is impressed by the proposal that a Contiguous Zone of 12 miles, as recommended by the International Law Commission, be accepted but with the modification that it covers fisheries as well. This proposal is commendable as it endeavors’ in a most equitable way to enshrine a compromise between conflicting views. It will therefore receive my delegations most sympathetic consideration.

The distinguished Representative of Panama has proposed that a sub-committee of this committee be established to examine the question of Historic Bays. My delegation has also heard the objections of the United Kingdom delegation to it and considers that the objections have merit. This notwithstanding, if the majority of Latin American countries want such a sub-committee my delegation will make its modest contribution by lending its support to it in the interest of friendship and amity.

A dogmatic approach to the problems affecting the world is repugnant to my delegation. We have come here with an open mind and are anxious to listen and learn. We believe that the last word has not been uttered on this subject and indeed from higher consideration every answer in its turn leads to a new question. Therefore, we are always subject to correction and change if correction and change are really due. God in His infinite wisdom did not arrogate all wisdom to one people or one nation. We can all learn from one another and the more we pool our resources for the common good of mankind, for the progress of the common weal, the more we are likely to benefit. Humanity, irrespective of artificial barriers and unfounded prejudices, is essentially indivisible and the sooner we work with faith and zeal for the greater good of this indivisible human force the better it is not only for humanity as a whole but also for each individual that forms a part of this mighty colossus.