The Law Of The Sea

Introduction

The law of the sea refers to the body of laws, agreements, conventions, and treaties that govern the uses of the world’s oceans and seas. It establishes guidelines for determining territorial waters, exclusive economic zones, fishing rights, navigation rights, environmental protections, scientific research, and more.

The law of the sea is important because the oceans cover over 70% of the Earth’s surface and are vital for transportation, food, energy, recreation, and more. As maritime activities increased over the centuries, it became necessary to establish rules and norms to reduce conflicts, protect resources, and enable cooperation on issues like overfishing and pollution.

The most comprehensive framework for the law of the sea is the United Nations Convention on the Law of the Sea (UNCLOS), adopted in 1982. UNCLOS has been ratified by most maritime nations and is considered the constitution for the oceans. It aims to balance the interests of coastal states in protecting their sovereignty and resources, with the interests of all states in freedom of navigation and access to maritime resources.

The law of the sea continues to evolve through international agreements, regulations, court decisions, and state practice. It provides crucial governance for the shared global commons of the oceans and enables sustainable development of maritime activities that benefit all countries. Having clear rules of the sea helps reduce conflicts, facilitate commerce and resource management, and protect the marine environment.

UN Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea (UNCLOS) is an international agreement that defines the rights and responsibilities of nations regarding the world’s oceans. It was adopted in 1982 and came into force in 1994. UNCLOS defines several maritime zones, including internal waters, territorial seas, contiguous zones, exclusive economic zones, continental shelves and the high seas.

The convention aims to establish a comprehensive legal framework that governs all ocean space and maritime activities. It covers topics such as navigational rights, maritime boundary delimitation, conservation of marine living resources, protection of the marine environment, marine scientific research, piracy and maritime security.

UNCLOS introduced a number of innovations in the law of the sea, such as the concept of the Exclusive Economic Zone (EEZ), which gives coastal states special rights over the exploration and use of marine resources up to 200 nautical miles from shore. The convention also affirmed the principle of “freedom of the high seas”, meaning that all states have the right to navigate freely in waters beyond national jurisdiction.

Overall, UNCLOS struck a balance between the interests of coastal states in managing and benefiting from offshore resources, and the interests of all states in protecting freedom of navigation. It provides the foundation for how the world’s oceans are regulated and utilized. UNCLOS has been ratified by the vast majority of nations, making it one of the most widely adopted treaties in history.

Internal Waters

Internal waters are defined in the UN Convention on the Law of the Sea (UNCLOS) as waters on the landward side of the baseline of the territorial sea. They are considered part of the internal sovereignty of the coastal state.

Some examples of internal waters include:

• Harbors
• Estuaries
• Bays
• Lakes
• Rivers
• Canals

UNCLOS states that waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. The baseline is the line from which the breadth of the territorial sea is measured.

The sovereignty of a coastal State extends to its internal waters, including air space, water column, seabed and subsoil. The coastal State is free to set laws, regulate use, and exploit resources. Foreign vessels generally have no right of passage through internal waters without coastal State permission.

Bays are considered internal waters provided the bay meets certain criteria for length of closing lines and area enclosed as defined in UNCLOS. Historic bays may also be considered internal waters even if they fail to meet the technical requirements of a bay.

Territorial Sea

The territorial sea is the belt of water that extends up to 12 nautical miles from the baseline of a coastal state. Under Article 3 of UNCLOS, every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles. The territorial sea is regarded as the sovereign territory of the coastal state.

The baseline is normally the low-water line along the coast, as marked on official large-scale charts recognized by the coastal state (Article 5). Where the coastline is deeply indented or there is a fringe of islands along the coast, straight baselines may be used to draw the baseline from which the territorial sea is measured (Article 7).

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 4). The coastal state has full sovereignty over its territorial sea, including the seabed and subsoil, the water column, and the air space above it. Foreign ships have the right of innocent passage through the territorial sea under international law.

Within its territorial sea, the coastal state has the exclusive right to construct and authorize construction, regulate shipping, and use any resource. The innocent passage of foreign ships through the territorial sea is allowed, but the coastal state can enact laws and regulations relating to innocent passage through the territorial sea, particularly in relation to security, custom and immigration regulation, sanitation, and pollution control. The coastal state also has jurisdiction to prosecute criminal offenses and arrest any person or ship for violations of these laws in the territorial sea.

Contiguous Zone

The contiguous zone is an area of water adjacent to the territorial sea, extending up to 24 nautical miles from the baselines that determine the breadth of the territorial sea.

The purpose of the contiguous zone is to give coastal states the right to take measures in this area for specific purposes, such as the prevention of infringement of its customs, fiscal, immigration or sanitary laws and regulations, or punishment of infringement of these laws within its territory or territorial sea.

The contiguous zone allows coastal states to exercise control necessary to prevent and punish infringements of those national laws and regulations that apply in the territorial sea. Within the contiguous zone, a state can act to punish infringement of its laws within its territory or territorial waters. However, the contiguous zone does not give a state full sovereignty and enforcement rights like in the territorial sea. The contiguous zone is more limited, focusing on preventing and punishing infringements related to customs, fiscal, immigration, or sanitation issues.

Exclusive Economic Zone

The exclusive economic zone (EEZ) extends up to 200 nautical miles from the territorial sea baselines. Within this zone, the coastal state has sovereign rights for exploring, exploiting, conserving and managing natural resources, both living and non-living, in the waters superjacent to the seabed and its subsoil, as well as jurisdiction with regard to establishing and using artificial structures, marine scientific research, and protecting the marine environment.

The rights of the coastal state in its EEZ include:

• The exclusive right to construct and authorize construction, as well as regulate and authorize offshore installations and structures. This includes production facilities, artificial islands, power generation plants, and installations for other economic purposes like tourism.

• Jurisdiction over marine scientific research and environmental protection. The coastal state must give consent for any marine scientific research conducted by other states or international organizations within its EEZ. It also has the right to regulate, authorize and conduct marine scientific research, and the right to suspend or cessation of any research activities within its EEZ.

• Exclusive rights to living and non-living natural resources. The coastal state has sovereign rights to explore, exploit, conserve and manage all natural resources, including fishing, oil and gas exploration and production, minerals and energy production from water, currents and winds.

• Jurisdiction over utilization of artificial islands, installations and structures. The coastal state has exclusive jurisdiction over artificial islands, installations and structures in the EEZ, including customs, fiscal, health, and immigration regulation.

• Jurisdiction over marine protection and preservation. The coastal state can establish laws and standards for marine environment protection and preservation, pollution control and prevention.

Within the EEZ, other states continue to enjoy freedoms of navigation, overflight, laying submarine cables and pipelines, and other lawful uses of the sea related to those freedoms, which are compatible with the coastal state’s rights and jurisdiction.

Continental Shelf

The continental shelf of a coastal state comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

The coastal state exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources. The rights of the coastal state over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. The continental shelf beyond 200 nautical miles from the baselines is subject to an international regime to be established by the International Seabed Authority.

The coastal state has the exclusive right to authorize and regulate drilling on the continental shelf for all purposes. The coastal state pays or contributes a share of revenue from exploitation of non-living resources beyond 200 nautical miles to the International Seabed Authority.

The natural resources referred to are mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species. The coastal state has jurisdiction with regard to establishing and using artificial islands, installations and structures, marine scientific research, and protection and preservation of the marine environment.

High Seas

The high seas refer to all parts of the sea that are not included in the exclusive economic zone, territorial sea, internal waters, or archipelagic waters of a state. According to the United Nations Convention on the Law of the Sea (UNCLOS), the high seas are open to all states and can be used for various purposes, including:

Freedom of Navigation

All states, whether coastal or landlocked, have the freedom to navigate ships on the high seas. This allows for international maritime trade and transport.

Freedom of Overflight

Aircraft of all states also have the freedom to fly over the high seas. This enables international air travel routes.

Freedom to Lay Submarine Cables and Pipelines

States can lay submarine cables and pipelines on the seabed beneath the high seas. This allows for international telecommunications networks and the transport of resources like oil and gas.

Freedom to Construct Artificial Islands and Installations

States have the right to construct artificial islands and other installations that are permitted under international law. However, there are some environmental protections that apply.

Freedom of Fishing

All states can fish in the high seas. However, they must adhere to conservation measures and cooperate with other states in managing fish stocks.

Freedom of Scientific Research

Scientific research can be conducted in the water column and on the seabed of the high seas. However, research related to resource exploration is subject to certain rules.

The high seas freedoms allow for a wide range of uses. However, states must exercise these rights with reasonable regard for the interests of other states under UNCLOS.

International Straits

International straits are strategic shipping lanes that connect bodies of water like oceans or seas with each other through narrow passageways. Under UNCLOS, ships including military vessels enjoy the right of transit passage, which refers to the freedom of navigation for ships and aircraft from one part of the high seas to another through an international strait.

This allows ships of all states to pass through straits that are used for international navigation between one area of the high seas and another. The right of transit passage exists throughout an international strait and not just through the area overlapped by territorial seas. Ships in transit passage through an international strait are required to proceed without delay, avoid activities other than those incident to their normal modes of continuous and expeditious transit, and avoid any threat or use of force against the sovereignty, territorial integrity or political independence of states bordering straits.

However, states bordering the strait can designate sea lanes and prescribe traffic separation schemes for ships in transit passage for navigational safety. States bordering straits are required to give appropriate publicity to any sea lanes and traffic separation schemes they designate. Ships in transit passage are required to respect sea lanes and traffic separation schemes established by the states bordering the strait. Foreign ships including warships enjoy the right of innocent passage through an international strait that overlaps with the territorial sea of states bordering it. This right extends until the exit of the strait into the high seas.

Dispute Settlement under UNCLOS

The United Nations Convention on the Law of the Sea (UNCLOS) provides for compulsory dispute settlement mechanisms for disputes arising under the convention. This allows states to legally settle disputes relating to the interpretation or application of UNCLOS.

UNCLOS establishes the following means for settlement of disputes:

• The International Tribunal for the Law of the Sea (ITLOS): Located in Hamburg, Germany, ITLOS has jurisdiction over disputes arising under UNCLOS. ITLOS can provide advisory opinions and binding decisions in disputes submitted to it.
• The International Court of Justice (ICJ): States can agree to submit disputes to the ICJ. The ICJ can provide advisory opinions and binding judgments.
• Arbitration: UNCLOS provides for binding arbitration procedures to resolve disputes. An arbitral tribunal can be constituted under Annex VII or VIII of UNCLOS.
• Special Arbitration: Parties to a dispute can agree to refer a dispute to a special arbitral tribunal under Annex VIII of UNCLOS. The tribunal’s award is binding on the parties.

UNCLOS makes dispute resolution mechanisms compulsory through Article 286, which requires state parties to settle disputes by peaceful means of their own choice. If no settlement method is chosen, the default mechanism is binding arbitration under Annex VII of UNCLOS.

The compulsory dispute settlement mechanisms under UNCLOS have strengthened the international rule of law and helped resolve maritime disputes between states. UNCLOS dispute settlement has played an important role in clarifying the law of the sea and preventing and resolving conflicts.