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Law of the Sea

LAW OF THE SEA

The earth is essentially a liquid planet, with more than 70% of its surface covered by water. Although geographically divided and labeled as continents, islands, seas, and oceans, the earth, when viewed from outer space, appears as one large body of water interspersed with lesser land masses. The world's oceans thus provide a common link for the more than 110 nations whose shorelines are washed by their waters. Despite these universal characteristics, however, this last earthly frontier had become an arena for disputes over such matters as fishing rights and varying claims of national jurisdiction, exploitation of deep sea mineral resources, responsibility for the protection of the environment, the right of innocent passage of ships, and free access to the sea for landlocked countries.

For centuries the doctrine that governed ocean space and resources was "freedom of the seas"; coastal state claims were restricted within narrow limits. The first change in this regime came with the emergence of the doctrine of the continental shelf, spurred by the development of offshore oil and gas fields. The United States, in 1945, was the first to proclaim jurisdiction over the natural resources of its continental shelf "beneath the high seas" (that is, beyond US territorial limits). Other nations were quick to follow suit, many of them seeking to extend their jurisdiction over fisheries. In order to clarify accepted norms and codify state practice, the UN, in 1958, convened the First Conference on the Law of the Sea. Working on the basis of draft s prepared by the International Law Commission (see the chapter on International Law), the conference adopted the Convention on the Continental Shelf, thus establishing the new doctrine in international law. The conference adopted three other conventionson the territorial sea and contiguous zone, the high seas, and fishing and conservation of living resources. A further attempt made in 1960, at the Second Conference on the Law of the Sea, failed to define the limits of the territorial sea.

A sense of urgency was again given to problems connected with the deep seas in 1967, when Malta warned the General Assembly that there was a danger that advanced, industrialized countries who were so equipped might wish to appropriate the ocean floor for their national use, not only to develop its immense resources but also for defense and other purposes. Malta's delegate, Arvid Pardo, remarked that the "dark oceans" were "the womb" of life: life had emerged from the protecting oceans. Man was now returning to the ocean depths, and his penetration "could mark the beginning of the end for man, and indeed for life as we know it it could also be a unique opportunity to lay solid foundations for a peaceful and increasingly prosperous future for all peoples."

Reacting to the Maltese call for international solutions, the General Assembly set up the Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction, called the Seabed Committee, to study various aspects of the problem and to indicate practical means to promote international cooperation. The principal results of the committee's work were embodied in a Declaration of Principles, adopted by the General Assembly in 1970, proclaiming that the seabed and ocean floor and its resources beyond the limits of national jurisdiction "are the common heritage of mankind" and that no nation should exercise sovereignty or rights over any part of the area. The declaration also called for the establishment of an international regime to govern the exploration and exploitation of the sea's resources for the benefit of mankind.

Recognizing that the problems of ocean space are interrelated and need to be considered as a whole, the General Assembly also decided, in 1970, to convene a new UN Conference on the Law of the Sea to prepare a single comprehensive treaty. The Seabed Committee, in preparation for the conference, thus had to deal not only with the international seabed area but also with such issues as the regime of the high seas, the continental shelf and territorial sea (including the question of limits), fishing rights, preservation of the marine environment, scientific research, and access to the sea by landlocked states.

THIRD LAW OF THE SEA CONFERENCE

The Third UN Conference on the Law of the Sea opened at UN headquarters in New York in December 1973 with a brief organizational session. Its real work commenced the following year in Caracas, Venezuela, with the important decision to proceed on the basis of a negotiated "package deal"meaning no one provision or section would be formally approved until all others were in place. This informal approach was dictated not only by the interdependence of the issues involved but also by the need to produce ultimately an overall balance that could command the widest support. The first informal text, as the agreed basis for negotiations, was prepared in 1975. It was followed by a series of revisions.

UN CONVENTION ON THE LAW OF THE SEA

The final text of the UN Convention on the Law of the Sea (UNCLOS) was approved by the conference at UN headquarters on 30 April 1982, by a vote of 130 in favor, with 4 against (Israel, Turkey, United States, and Venezuela) and 17 abstentions. Following the signing of the Final Act of the conference in Jamaica on 10 December 1982, the UNCLOS entered into force on 16 November 1994. As of 5 April 2006, 149 nations were keeping parties to the convention.

The UNCLOS created three international institutions dealing with specific areas of the Law of the Sea: the International Seabed Authority (ISBA), the International Tribunal for Law of the Sea (ITLOS), and the Commission on the Limits of the Continental Shelf (CLCS).

THE CONTENTIOUS ISSUE OF DEEP SEA MINING

Although the United States had been a leader in the international community's effort to develop an overall legal framework for the oceans in the Third United Nations Conference on the Law of the Sea, deep divisions arose between developing and developed nations over the establishment of an international organization to regulate the exploration of deep sea mining in international waters (Part XI of the Treaty). These divisions were so deep that the United States and other industrialized countries declined to formally sign the treaty, although endorsing the consensus that had been reached by the conference on other areas covered by the treaty.

On the economic and commercial front, the industrialized nations sought a more market-oriented regime. They objected to provisions for mandatory technology transfer, production limitations from the seabed, what they perceived as onerous financial obligations on miners, and the establishment of a subsidized international public enterprise that, it was postulated, would compete unfairly with other commercial enterprises.

In July 1990, the Secretary-General of the UN undertook informal consultations aimed at achieving universal participation in UNCLOS. Fifteen meetings were convened in the period 1990 to 1994, resulting in major amendments to the seabed mining portion of UNCLOS. In early 1993, the Clinton administration in the United States decided to take a more active role in the reform effort, deciding that the merit of actively participating would not be to find an answer to every future question regarding the uses of the oceans, but to create a framework and channel discussions of new issues along lines more acceptable to the industrialized nations.

The Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (hereafter referred to as the "agreement") concluded on 3 June 1994. The agreement avoids establishing a detailed regime anticipating all phases of activity associated with mining of the deep seabed. However, it sets forth economic and commercial principles consistent with a free market philosophy to form the basis for developing rules and regulations at such time as commercial mining develops in international waters.

The agreement retains the institutional outlines of Part XI of the treaty, but scales back the structure and links the activation and operation of institutions to the actual development of concrete interest in seabed mining.

The agreement limits assistance to land-based producers of minerals to adjustment assistance financed out of a portion of royalties from future seabed mining. It also replaces the production control regime of Part XI by the application of GATT principles on subsidization. The agreement further replaces the detailed financial obligations imposed on miners by a future system for recovering economic rents based on systems applicable to land-based mining, and provides that it be designed to avoid competitive incentives or disincentives for seabed mining.

At the conclusion of the informal consultations, only the Russian Federation made a statement reserving its position, since some of its proposals had not been incorporated into the agreement. It was then decided to convene a resumed 48th session of the General Assembly from 2729 July 1994 for the purpose of adopting and opening for signature the agreement, at which time most of the abstaining industrialized nations signed the treaty. It entered into force on 28 July 1996 having received 40 ratifications.

Provisions of UNCLOS

The convention covers almost all human uses of the seasnavigation and overflight, resource exploration and exploitation, conservation and pollution, fishing, and shipping. Its 321 articles and nine annexes constitute a guide for behavior by nations in the world's oceans, defining maritime zones, laying down rules for drawing boundaries, assigning legal duties and responsibilities, and providing machinery for settlement of disputes. Some of the main provisions of the convention are the following.

Territorial Sea.

Coastal states would exercise sovereignty over their territorial sea of up to 22.2 km (12 naut mi) in breadth, but foreign vessels would be allowed "innocent passage" through those waters for purposes of peaceful navigation.

Straits Used for International Navigation.

Ships and aircraft of all countries would be allowed "transit passage" through straits used for international navigation, as long as they proceeded without delay and without threatening the bordering states; states alongside the straits would be able to regulate navigation and other aspects of passage.

Archipelagic States.

Archipelagic states, consisting of a group or groups of closely related islands and interconnecting waters, would have sovereignty over a sea area enclosed by straight lines drawn between the outermost points of the islands; all other states would enjoy the right of passage through sea lanes designated by the archipelagic states.

Exclusive Economic Zone.

Coastal states would have sovereign rights in a 370-km (200-naut mi) exclusive economic zone with respect to natural resources and certain economic activities and would also have certain types of jurisdiction over marine science research and environmental protection; all other states would have freedom of navigation and overflight in the zone, as well as freedom to lay submarine cables and pipelines. Land-locked and other geographically disadvantaged states would have the opportunity to participate in exploiting part of the zone's fisheries when the coastal state could not harvest them all. Highly migratory species of fish and marine mammals would be accorded special protection.

Continental Shelf.

Coastal states would have sovereign rights over the continental shelf (the national area of the seabed) for the purpose of exploring and exploiting it; the shelf would extend at least 370 km (200 naut mi) from shore and 648 km (350 naut mi) or more under specified circumstances. Coastal states would share with the international community part of the revenue that they would derive from exploiting oil and other resources from any part of their shelf beyond 370 km (200 naut mi). A Commission on the Limits of the Continental Shelf would make recommendations to states on the shelf's outer boundaries.

High Seas.

All states would enjoy the traditional freedoms of navigation, overflight, scientific research, and fishing on the high seas; they would be obliged to adopt, or cooperate with other states in adopting, measures to conserve living resources.

Islands.

The territorial sea, exclusive economic zone, and continental shelf of islands would be determined in accordance with rules applicable to land territory, but rocks that could not sustain human habitation or economic life would have no economic zone or continental shelf.

Enclosed or Semienclosed Seas.

States bordering enclosed or semi-enclosed seas would be expected to cooperate on management of living resources and on environmental and research policies and activities.

Landlocked States.

Landlocked states would have the right of access to and from the sea and would enjoy freedom of transit through the territory of transit states.

International Seabed Area.

A "parallel system" would be established for exploring and exploiting the international seabed area. All activities in this area would be under the control of an International Seabed Authority, to be established under the convention. The authority would conduct its own mining operations through its operating arm, called the "Enterprise," and would also contract with private and state ventures to give them mining rights in the area, so that they could operate in parallel with the authority. The first generation of seabed prospectors, called "pioneer investors," would have guarantees of production once mining was authorized.

Marine Pollution.

States would be bound to prevent and control marine pollution from any source and would be liable for damage caused by violation of their international obligations to combat marine pollution.

Marine Scientific Research.

All marine scientific research in the exclusive economic zone and on the continental shelf would be subject to the consent of the coastal state, but coastal states would in most cases be obliged to grant consent to foreign states when the research was to be conducted for peaceful purposes.

Development and Transfer of Marine Technology.

States would be bound to promote the development and transfer of marine technology "on fair and reasonable terms and conditions," with proper regard for all legitimate interests, including the rights and duties of holders, suppliers, and recipients of technology.

States would be obliged to settle their disputes over the interpretation or application of the convention by peaceful means. They would have to submit most types of disputes to a compulsory procedure entailing decisions that would be binding on all parties. Disputes could be submitted to an International Tribunal for the Law of the Sea, to be established under the convention; to the International Court of Justice; or to arbitration. Conciliation also would be available, and, in certain circumstances, submission to conciliation might be compulsory.

International Acceptance

The new legal regime for the seas is now firmly established throughout the world: by September 1998, 133 states had established 12-nautical-mile territorial limits and 106 states had declared exclusive economic zones. Nineteen states had declared fishing zones of 200 nautical miles. Most such national legislation is derived directly from the provisions of the convention. The General Assembly is concerned with ensuring maximum conformity in state practice and each year examines the status of the convention and reviews developments relating to its application.

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Law of the Sea

Law of the Sea

The oceans have long been viewed by societies as a wide-open free spacea vast frontier associated with adventure and mystery. In the seventeenth century, nations formalized this viewpoint into the Freedom of the Seas doctrine. This doctrine limited any nation's rights to the ocean to a narrow belt, traditionally 4.8 kilometers (3 miles), surrounding its coastline and declared the rest of the seas to be free to all nations and belonging to no one. This doctrine formalized views that the seas were such a vast resource that all nations could use them as they wished.

Dramatic growth in use of the oceans directly challenged this doctrine by the twentieth century. The ocean's resources were increasingly used for economic uses, and nations desired to extend their claims over offshore resources. Fishing fleets, transport ships, oil drilling, and military navies all relied on the seas for their success. Concern grew over the impact of these uses and many conflicts emerged between nations over rights to the resources.

Growing Conflict over Ocean Uses

In the United States, president Harry Truman directly challenged the Freedom of the Seas doctrine in 1945 by unilaterally extending the nation's jurisdiction to its coastal waters. He extended the United States rights to a wider band to include all of the resources on the continental shelf , including oil, gas, and minerals. Partly, he was acting in response to pressures from the U.S. oil industry that eyed profitable reserves offshore.

Many nations followed Truman's lead and extended their sovereign national rights to the seas as well. In 1950, Ecuador claimed rights to a 322kilometer (200-mile) zone. Indonesia and the Philippines asserted rights over all waters separating their islands. The vast resources derived from the oceans countered the viewpoint that it was a free space. As new technologies increased human abilities to exploit those resources, conflicting claims multiplied and nations further desired to expand their territorial rights. The human relationship with the seas had dramatically changed.

United Nations Conference on the Law of the Sea.

In 1967, Arvid Pardo, Malta's ambassador to the United Nations, called on the nations of the world to recognize their potential devastation of the oceans and the importance of the oceans to world peace. He pleaded for "an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction." This began a 15-year process to create a management mechanism for the world's seas.

The United Nations Seabed Committee was formed and, after much preparation, met in 1973 in New York to draft an international treaty for the oceans. Nine years of negotiations between more than 160 nations over national rights and obligations ensued. In 1982, the United Nations Convention on the Law of the Sea was adopted at the Third UN Conference on the Law of the Sea. The Convention needed 60 states to sign on to ratify it, and it came into force in 1994.

Law of the Sea

The Law of the Sea (LOS) is a comprehensive treaty covering territorial sea limits, navigational rights, the legal status of the ocean's resources, economic jurisdictions, protection of the marine environment, marine research, and other facets of ocean management. It attempted to address the existing conflicts over the oceans. After its adoption, some called it "possibly the most significant legal instrument of this (the twentieth) century."

The treaty established legal principles governing ocean space, its uses and resources. The Law of the Sea treaty also set up a binding procedure for settling disputes between nations and established the International Tribunal for the Law of the Sea. Nations could now take other nations to court over perceived violations of international convention. The treaty also recognized the right to conduct marine scientific research. It addresses the main sources of ocean pollution: land and coastal activities, continental shelf drilling, seabed mining, ocean dumping, and vessel-source pollution.

The Law of the Sea also established the International Seabed Authority, which regulates activities in the deep seabed beyond national jurisdictions. One of the most contentious aspects of the Law of the Sea was the language dealing with the mining of minerals in the deep ocean floor, the part of the international seabed area beyond the national jurisdictions (Part XI). In 1998, an agreement was passed, formally known as the Agreement Related to the Implementation of Part XI of the Convention. This Agreement in jointly implemented with the LOS.

The Ocean's Future.

The joining of the world's countries to protect the oceans through the Law of the Sea Convention signals society's growing recognition of the importance of the oceans to life on Earth. The Law of the Sea is a good example of intergovernmental cooperation to protect an important resource from global pressures. The ocean's future depends on the abilities of nations to implement effective governance.

see also Conflict and Water; Legislation, Federal Water; Mineral Resources from the Ocean; Petroleum from the Ocean; Sustainable Development.

Faye Anderson

Bibliography

Wang, James C. F. 1991. Ocean Politics and Law: An Annotated Bibliography. Westport, CT: Greenwood Publishing Group, 1991.

Internet Resources

Atlas of the Oceans. United Nations. <http://www.oceansatlas.org/index.jsp>.

International Tribunal for the Law of the Sea. <http://www.itlos.org/>.

NOAA Ocean Page. National Oceanic and Atmospheric Administration. <http://www.noaa.gov/ocean.html>.

Ocean Affairs and the Law of the Sea. United Nations. <http://www.un.org/Depts/los/index.htm>.

EXCLUSIVE ECONOMIC ZONE

An Exclusive Economic Zone (EEZ) is one of the tools defined by the Convention on the Law of the Sea. In the eighteenth century, the cannon-shot rule governed a nation's claims to territorial seas, based on the distance that projectiles could be fired from a cannon onshoreat that time, about 4.8 kilometers (3 miles). The Law of the Sea built on this idea and expanded the zone to 322 kilometers (200 miles).

Today, nations have the right to develop, manage, and conserve all resources in waters, on the ocean floor, and in the subsoil in the area extending 322 kilometers (200 miles) from its shore. These EEZs bring many benefits to countries, because lucrative fishing, oil, and other reserves often lie within these zones.

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Law of the Sea

LAW OF THE SEA

The part of publicinternational lawthat deals with maritime issues.

The term law of the sea appears similar to the term maritime law, but it has a significantly different meaning. Maritime law deals with jurisprudence that governs ships and shipping, and is concerned with contracts, torts, and other issues involving private shipping, whereas the law of the sea refers to matters of public international law.

Many topics are contained within the law of-the-sea concept. These include the definition of a state's territorial waters, the right of states to fish the oceans and to mine underneath the oceans, and the rights of states to control navigation.

The area outside a state's territorial waters, commonly known as the high seas, was traditionally governed by the principle of freedom of the seas. On the one hand, this meant freedom for fishing, commercial navigation, travel, and migration by both ships and aircraft; freedom for improvement in communication and supply by the laying of submarine cables and pipelines; and freedom for oceanographic research. On the other hand, it meant freedom for naval and aerial warfare, including interference with neutral commerce; freedom for military installations; and freedom to use the oceans as a place to dump wastes. Until world war ii, these freedoms continued to be applied to the oceans and airspace outside the states' three-mile territorial limit, with little regulation of abuses other than what could be found in the customary regulations of warfare and neutrality.

Since the 1950s the united nations has attempted to convince the nations of the world to agree to a set of rules that will govern the law of the sea. The First U.N. Conference on the Law of the Sea, which was held in Geneva in 1958, led to the codification of four treaties that dealt with some areas of the law of the sea. In the 1970s the Third U.N. Conference on the Law of the Sea began its work. The conference labored for more than ten years on a comprehensive treaty that would codify international law concerning territorial waters, sea lanes, and ocean resources.

On December 10, 1982, 117 nations signed the U.N. Convention on the Law of the Sea, in Montego Bay, Jamaica. The convention originally was not signed by the United States, the United Kingdom, and 28 other nations, because of objections to provisions for seabed mining, which they believe would inhibit commercial development.

The convention, which went into effect November 16, 1994, claims the minerals on the ocean floor beneath the high seas as "the common heritage of mankind." The exploitation of minerals is to be governed by global rather than national authority. Production ceilings have been set to prevent economic harm to land-based producers of the same minerals. There have been continuing negotiations with the United States and other nations to resolve this issue, which is the only serious obstacle to universal acceptance of the treaty. A 1994 agreement amended the mining provisions, which led the United States to submit the treaty to the U.S. Senate for ratification. Despite this amendment and pressure to sign the treaty, the U.S. Senate has not ratified the amendment or the Constitution. As of August 2003, a total of 143 nations had signed the treaty, including the United Kingdom in 1997.

A major change under the convention is its extension of a state's territorial waters from 3 to 12 nautical miles. Foreign commercial vessels are granted the right of innocent passage through the 12-mile zone. Beyond the zone all vessels and aircraft may proceed freely. Coastal nations are granted exclusive rights to the fish and marine life in waters extending 200 nautical miles from shore. Every nation that has a continental shelf is granted exclusive rights to the oil, gas, and other resources in the shelf up to 200 miles from shore.

Any legal disputes concerning the treaty and its provisions may be adjudicated by the new Tribunal for the Law of the Sea, by arbitration, or by the international court of justice.

further readings

Buck, Eugene H. 1996. United Nations Convention on the Law of the Sea: Living Resources Provisions. CRS Report. Available online at <www.cnie.org/nle/mar-9.html> (accessed August 5, 2003).

Garmon, Tina. 2002. "International Law of the Sea: Reconciling the Law of Piracy and Terrorism In the Wake of September 11." Tulane Maritime Law Journal 27 (winter): 257-275.

United Nations Division for Ocean Affairs and the Law of the Sea. Available online at <www.un.org/Depts/los/index.htm> (accessed August 5, 2003).

cross-references

Admiralty and Maritime Law; Environmental Law; Fish and Fishing; Mine and Mineral Law; Navigable Waters; Pollution.

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law of the sea

law of the sea: see maritime law.

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