LAW OF THE SEA 1

This course will seek to place the development of the law of the sea within its philosophical, legal and practical context.

From the early attempts to delineate maritime zones, to the importance of the United Nations Convention on the Law of the Sea, the module will provide in depth knowledge on all important matters relating to the law of the sea, including: ◦ its definitional parameters, ◦ historical evolution, ◦ sources of the law of the sea, ◦ maritime zones, ◦ exploration and exploitation of natural resources, ◦ dispute settlement and ◦ maritime boundaries.

1. Course Outline:

i) Introduction (Definition, History and Sources of the Law of the Sea)

Ii) United Nations Convention on the Law of the Sea, 1982 Iii) Maritime zones 1 (Maritime Aquitory) – Internal waters,

territorial sea, archipelagic waters, straits used for international navigation.

Iv) Maritime zones 2 (Zones of Functional Jurisdiction) – Contiguous zone, exclusive economic zone, continental shelf.

V) Maritime zones 3 (Common Spaces) – High seas, deep seabed area.

Vi) Protection of the marine environment

2. Course content:

Vii) Management of living resources Viii) Management of natural resources Ix) Maritime scientific research X) Dispute settlement Xi) Special issues (polar regions, climate

change and the oceans, piracy).

Law of the sea => one of the most significant areas of contemporary international law

Encompasses not only principal treaties such as the United Nations Convention on the Law of the Sea (1982), but a growing array of additional treaties, state practices, and frameworks for the governance and management of the world’s oceans.

Originally => Determining the status and control of ocean space

Now => Not only that, but also focuses on the extent of coastal state sovereignty and jurisdiction + ongoing interests of the international community in the deep seabed, high seas, fish stocks, marine scientific research, military uses of the oceans, marine environmental protection

3. Introduction:

The international law of the sea has had a number of distinctive phases:◦ Ranging from:

Theoretical debates between scholars over the status of the oceans

Dominance of the freedom of the seas doctrine Gradual codification of the law throughout the 20th century.

Law of the Sea = A large complex system

Throughout history humans have been directly or indirectly influenced by the oceans. ◦ Ocean waters serve as:

a source of food and valuable minerals, a vast highway for commerce, and provide a place for both recreation and waste disposal.

◦ Increasingly, people are turning to the oceans for their food supply either by direct consumption or indirectly by harvesting fish that is then processed for livestock feed. It has been estimated that as much as 10% of human protein intake comes from

the oceans. Nevertheless, the food-producing potential of the oceans is only partly realized.

◦ Other biological products of the oceans are also commercially used. For example, pearls taken from oysters are used in jewelry, and shells and coral

have been widely used as a source of building material.

3A. Importance of the oceans:

◦ Ocean water is processed to extract commercially valuable minerals such as salt, bromine, and magnesium. Although nearly 60 valuable chemical elements have been found dissolved in ocean water, most are in

such dilute concentrations that commercial extraction is not profitable. ◦ In a few arid regions of the world, such as Ascension Island, Kuwait, and Israel, ocean water is

desalinated to produce freshwater.◦ The shallow continental shelves have been exploited as a source of sands and gravels. ◦ In addition, extensive deposits of petroleum-bearing sands have been exploited in offshore areas,

particularly along the Gulf and California coasts of the United States and in the Persian Gulf. ◦ On the deep ocean floor manganese nodules, formed by the precipitation of manganese oxides

and other metallic salts around a nucleus of rock or shell, represent a potentially rich and extensive resource. Research is currently being conducted to explore nodule mining and metallic extraction techniques.

◦ Ocean water itself could prove to be a limitless source of energy in the event that nuclear fusion reactors are developed, since the oceans contain great quantities of deuterium.

◦ The world ocean has an area of about 361 million sq km (139,400,000 sq mi), an average depth of about 3,730 m (12,230 ft), and a total volume of about 1,347,000,000 cu km (322,280,000 cu mi). Each cubic mile of seawater weighs approximately 4.7 billion tons and holds 166 million tons of dissolved solids.

Global significance of the oceans◦ Oceans cover 72% of Earth’s surface◦ They provide vital, life sustaining services to the global population◦ The world’s oceans generate half of the oxygen on Earth◦ They are the primary regulator of global climate◦ Provide economic and environmental services to billions around the globe.

Oceans as a source of food security:◦ Fish provide over 2.6 billion people with at least 20% of their total animal

protein intake, with some type of fishing activity occurring in every region of the ocean, though marine biodiversity is often concentrated along the seabed, and especially along continental shelves and slopes.

◦ Seamounts, in particular, foster unique underwater ecosystems that support abundant and diverse marine life.

◦ Some of the most important fishing areas around the globe are found on and along continental shelves less than 200 meters depth and within 100 km of the coast (i.e., within national Exclusive Economic Zones (EEZ)). More than 50% of the world’s catch in 2004 was caught in these areas covering

less than 7.5% of the global oceans, and up to 92% was caught in these areas in less than half of the world’s ocean area.

Maritime domain – different interests:◦ At one end of the spectrum, we have the coastal

State – interested in claiming sovereignty and exclusive rights Maritime law / enforcement Port State control Traffic /vessel monitoring Coastal state security

◦ At the other end, we have the high seas regime

3B. In general:

At the other end, we have the high seas regime – community interests: Commons regime – oceans beyond national jurisdiction High seas governance Freedom of navigation – equal access to the oceans Flag state control – law in the high seas follows the flag

BUT not totally unregulatedMaritime domain:◦ All areas and things of, on, under, relating to,

adjacent to, or bordering on a sea, ocean or other navigable waterway.

High Seas

Regime

International

Maritime

Organization

Coastal State

(Sovereign rights)

UN Convention on the Law of the Sea (UNCLOS)

Marine environment IUU Fishing

(illegal, unreported, unregulated

Transnational organized crime

Piracy

Terrorism

Proliferation

Marine environment and resources:◦ Continental shelf◦ Pollution◦ Scientific research◦ EEZ

Illegal, unreported and unregulated fishing:◦ Can cause severe damage to the environment and fish stocks◦ IUU refers to:

fishing activities that are illegal meaning that the fishing activities violate applicable national or

international laws or rules; unreported

meaning that the activities have not been reported in areas where such reporting is required; or

unregulated meaning that the fishing activities are inconsistent with relevant

international laws or rules, but either the activities are not regulated, or the involved fishing vessels are not able to be regulated because they are flying the flag of a State that is not party to the relevant regional fishery management organization or they are flying no flag at all.

Transnational organized crime:◦ Area of increasing concern◦ Drug trafficking◦ People smuggling

Piracy:◦ Counter-piracy patrols◦ Now becoming an ever more serious

problem◦ i.e. The waters off Somalia and the Gulf of

Aden are where ships and tankers face the greatest danger

Terrorism:◦ In recent years, particularly following the

devastation caused in New York on 11 September 2001, the world has come to recognize the ever-present threat of acts of terrorism.

◦ A key factor differentiating piracy from terrorism is that the principal aim of piracy is a personal and commercial one—the acquisition of property—whether as an end in itself or as a means to another end, which may include the funding of terrorist activity. 

◦ Another indicator is that piracy is usually a product of poor economic conditions in some areas of the world; although it may also be purely criminal activity, which can occur anywhere.

Proliferation:◦ Seas – highway for the proliferation of

weapons of mass destruction◦ PSI – Proliferation Security Initiative with

the aim to stop trafficking of WMDs, their delivery systems, and related materials to and from states and non-state actors of proliferation concern.

The modern law of the sea dates to the beginning of the modern international law. Grotius, the Dutch lawyer who is considered to be the father of international law, is regarded as the father of the law of the sea as well. ◦ His seminal work on the subject, the Free Seas, or

Mare Liberum, published in 1609, established some of the major concepts in this field. He articulated the principle of the freedom of the seas, that the sea should be free and open to use by all countries.

4. Historical Background:

The oceans had long been subject to the "freedom-of-the-seas" doctrine - a principle put forth in the 17th century, essentially limiting national rights and jurisdiction over the oceans to a narrow belt of sea surrounding a nation's coastline. ◦ The remainder of the seas was proclaimed to be free to

all and belonging to none. While this situation prevailed into the twentieth

century, by the middle of it there was an impetus to extend national claims over offshore.

The 1958 United Nations Conference on the Law of the Sea attempted to formulate an agreed legal definition of the continental shelf, and adopted the following in article 1 of the Convention on the Continental Shelf:

"For the purpose of these articles, the term 'continental shelf' is used as referring ... to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; ..."

This definition contained the criteria of adjacency to the coast and of "exploitability", which were soon questioned in view of their imprecise and open-ended nature.

In the late 1960s, oil exploration was moving further and further from land, and deeper into the bedrock of continental margins.◦ The oceans were being exploited as never before. Activities unknown

barely two decades earlier were in full swing around the world. Tin had been mined in the shallow waters off Thailand and Indonesia. South Africa was about to tap the Namibian coast for diamonds. Potato-shaped nodules, found almost a century earlier and lying on the seabed some five kilometres below were attracting increased interest because of their metal content.

◦ Meanwhile, large fishing vessels were now capable of staying away from port for months at a time, permitting them to fish anywhere, and at an unprecedented level, beginning to deplete important fish stocks. Coastal States were setting limits and distant water fishing States contesting them.

In the fall of 1967 technological advances, conflicting uses, and superpower rivalry threatened the oceans and even the seabed. ◦ The dangers were numerous: nuclear submarines

charting deep waters never before explored; designs for antiballistic missile systems to be placed on the seabed; super tankers ferrying oil from the Middle East to European and other ports, passing through congested straits and leaving behind a trail of oil spills; and rising tensions between nations over conflicting claims to ocean space and resources.

Third United Nations Conference on the Law of the Sea => AIM: to regulate and write rules for all ocean areas, all uses of the seas and all of its resources - a constitution for the oceans.

The Convention was adopted as a "package deal" to be accepted as a whole in all its parts without reservation on any aspect. ◦ The influence that the convention has already exerted on State practice

is immense. ◦ There is in general a convergence towards the Convention regime in all

its aspects, even among many States which have not yet ratified it. ◦ The Convention provides a predictable framework for all the uses of the

oceans and its resources and provides for universally recognized limits for zones of national jurisdiction.