The united nations convention on the law of the sea applies to only coastal states

Introduction

The law of the sea is a body of public international law governing the geographic jurisdictions of coastal States and the rights and duties among States in the use and conservation of the ocean environment and its natural resources. The law of the sea is commonly associated with an international treaty, the Convention on the Law of the Sea (UNCLOS), negotiated under the auspices of the United Nations, which was signed in 1982 by 117 States and entered into force in 1994. At present 133 States have signed and ratified UNCLOS; Canada, Israel, Turkey, USA, and Venezuela are the most prominent among those that have not ratified. This treaty both codified customary international law and established new law and institutions for the ocean. UNCLOS is best understood as a framework providing a basic foundation for the international law of the oceans intended to be extended and elaborated upon through more specific international agreements and the evolving customs of States. These extensions have begun to emerge already, making the law of the sea at once broader, more complex, and more detailed than UNCLOS per se.

The law of the sea can be distinguished from two closely related bodies of law: maritime and admiralty. Maritime law is the private law relating to ships and the commercial business of shipping. Admiralty law, often used synonymously with maritime law, applies to the private law of navigation and shipping, in inland waters as well as on the ocean. The latter may also refer more parochially to the legal jurisdiction of specialized Admiralty courts. There may be important overlaps between the public international law of the sea and private maritime law, as may occur through the application of rules for vessel passage through a jurisdiction or the enforcement of domestic law in the ocean.

The historical development of the law of the sea is sometimes traced back to a Papal Bull of 1493, which divided the world’s oceans between Portugal and Spain, thereby solidifying Spain’s claim to Columbus’ discovery of the New World. In the early seventeenth century, an important ‘debate’ took place between the Dutch jurist Hugo Grotius, who, in 1608, argued on the basis of natural law for freedom of the seas, and the English academic, John Selden, who argued in 1635 for the establishment of sovereign rights over areas of the ocean. In modern times, both regimes persist, although scientific and technological advances have combined to reduce that portion of the seas that is not subject to the authority of coastal States, and international rules have been developed to regulate many types of activities that occur beyond the reach of national jurisdictions.

This article outlines the public international law of the sea, focusing mainly on UNCLOS. Important extensions of the UNCLOS framework are highlighted. The development of the law of the sea can be conceptualized as a tree with UNCLOS as its trunk. Its roots are historical customs, some centuries old, and agreements that emerged mostly after World War II. Its branches are customs, agreements, and soft law that is only now beginning to take shape. Six topical areas are covered: underlying principles, jurisdictions, fishery resources, mineral resources, marine science and technology, environmental protection, and dispute settlement.

Abstract

The law of the sea is a body of public international law governing the geographic jurisdictions of coastal States and the rights and duties among States in the use and conservation of the ocean environment and its natural resources. The law of the sea is commonly associated with an international treaty, the Convention on the Law of the Sea (UNCLOS), negotiated under the auspices of the United Nations, which was signed in 1982 by 117 States and entered into force in 1994. This article outlines the public international law of the sea, focusing mainly on UNCLOS.

Habitat and Ecosystem Protection

UNCLOS calls for States’ pollution-control measures to include measures to protect habitats and ecosystems, but it does not make an explicit call for cooperation in this regard or for ecosystem-based management of marine resources. UNCLOS thus leaves large marine ecosystems, which typically straddle two or more jurisdictional zones, subject to potentially conflicting management approaches and enforcement standards. Protection of marine habitats is provided under two major international treaties – the 1975 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention) and the 1992 Convention on Biological Diversity – and under several Regional Seas protocols and other regional agreements. Protection of marine ecosystems is far less well developed in international law, no doubt in large part because ecosystem science and management are themselves comparatively new and undeveloped fields. This circumstance may also account for what some legal scholars consider to be an incoherent approach to ecosystem protection in UNCLOS.

The lack of clarity as to the locus of authority to enforce ecosystem protections is uncharacteristic of UNCLOS, which otherwise exhibits an overriding concern with jurisdictional clarity in the balance it strikes between the competing interests of international navigation and the environmental protection concerns of coastal States. In general, UNCLOS limits the authority of States to enforce national and international environmental regulations where such authority conflicts with other principles established under the various legal regimes relating to different categories of ocean space. For example, coastal State authority to enforce national laws is subordinated to the right of innocent passage in the territorial sea; and on the high seas, only the flag State of an offending vessel has authority to enforce international environmental regulations, in deference to the principle of freedom of navigation. Because of such provisions, in the view of some environmentalists, UNCLOS does not provide the basis for full and effective protection of the marine environment, even if its entire agenda of elaborating agreements is eventually completed.

14.1.4 Inconsistent or contradictory statements

The United Nations Convention on the Law of the Sea (UNCLOS) is established to define coastal and maritime boundaries, to regulate seabed exploration not within territorial claims, and to distribute revenue from regulated exploration. Territorial sea is defined under the UNCLOS as the 12-nautical mile zone from the baseline or low-water line along the coast. The coastal state’s sovereignty extends to the territorial sea, including its seabed, subsoil and air space, above it. Article 56 of the UNCLOS outlines parameters for the establishment of a country’s exclusive economic zone (EEZ), which extends 200 nautical miles from the country’s coastline. Article 56 gives sovereign rights for exploration, exploitation, conservation and resource management of living and nonliving natural resources of waters in the country’s EEZ. Article 76 defines the continental shelf of a nation, which ‘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…’.

However, the establishment of the UNCLOS parameters has also created the potential for overlapping claims in semienclosed seas. These claims could be further extended by any nation which could establish a settlement on the islands at these seas. Indeed, Article 121 of the UNCLOS, which states that ‘rocks that cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf’ has flaws in identifying if the object is an islet or rock.

8.3.2 From Lose–Lose to Win–Win Games

Over-exploitation or overfishing occurs when a fish stock has been fished down below the size that, on average, would support the long-term maximum sustainable yield of the fishery. Overfishing can result in resource depletion, reduced biological growth rates and low biomass levels. Some forms of overfishing, for example the overfishing of sharks, have led to the upset of entire marine ecosystems. The ability of a fishery to recover from overfishing depends on whether the ecosystem’s conditions are suitable for the recovery. These depleted fisheries can often recover if fishing pressure is reduced until the stock biomass returns to the optimal biomass. At this point, harvesting can be resumed near the maximum sustainable yield (See Rosenberg (2003) and Grafton et al. (2007).).

Overfishing affects not only the balance of life in oceans, but also the social and economic well-being of the coastal communities who depend on fish for their way of life. The Harvest Control Rule (HCR), proposed in 2011 for predicting acceptable levels of fishing, is based on a set of tools and protocols with which management has some direct control of harvest rates and strategies in relation to predicting stock status, and long-term maximum sustainable yields (Froese et al., 2011). In general, there are two types of harvest control rules: constant catch and constant fishing mortality (Fig. 8.3).

The UNCLOS, in three articles, deals with the aspects of overfishing, as the following (The full text of the UNCLOS can be accessed at http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm.):

Article 61 requires all coastal states to ensure that the maintenance of living resources in their EEZs is not endangered by over-exploitation and to address the maintenance or restoration of populations of species above levels at which their reproduction may become seriously threatened.

Article 62 suggests that coastal states shall promote the objective of optimum utilization of the living resources in the EEZ without prejudice to Article 61.

Article 65 provides generally for the rights of, inter alia, coastal states to prohibit, limit or regulate the exploitation of marine mammals.

Another possible solution to overfishing is to set quotas for all stakeholders concerned, so fishermen can only legally take a certain amount of fish. A more radical possibility is declaring certain areas of the sea as ‘no-go zones’ and makes fishing there strictly illegal, so the fish in that area have time to recover and repopulate.

Controlling consumer behaviour and demand is a key in mitigating action. Worldwide, a number of initiatives emerged to provide consumers with information regarding the conservation status of the seafood available to them. While governments can create regulations to control people’s behaviours, this can be undermined by illegal fishing activity, especially in some developing countries, where large numbers of poor people are dependent on fishing. It has proven difficult to regulate this kind of overfishing, especially for weak governments. While industrial fishing is often effectively controlled, smaller scale and recreational fishermen can often break regulations such as bag limits and seasonal closures.

9.1.3 What does the United Nations Convention on the Law of the Sea say?

The United Nations Convention on the Law of the Sea (UNCLOS) is an international agreement. It was officially formulated at the third United Nations Conference on the Law of the Sea, which took place between 1973 and 1982. In general, the UNCLOS defines the rights and responsibilities of nations with respect to their use of the world’s oceans. It establishes guidelines for businesses, the environment and the management of marine natural resources. The UNCLOS came into force in 1994. As of June 2016, 167 countries and the European Union (EU) have joined in the Convention.

The UNCLOS defines various maritime boundaries. For example, a baseline is defined as the line from which the seaward limits of a state’s territorial sea and certain other maritime zones of jurisdiction are measured. Under the UNCLOS a sea baseline follows the low-water line of a coastal state (see Fig. 9.2). The following methods are suggested to measure a baseline:

Normal baseline: Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognised by the coastal state (Article 5 of the 1982 UNCLOS).

Reefs: In the case of islands situated on atolls or of islands having fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward low-water line of the reef, as shown by the appropriate symbol on charts officially recognised by the coastal state (Article 6 of the 1982 UNCLOS).

In some circumstances, when the coastline is deeply indented, has fringing islands or is highly unstable, straight baselines may be used. The following methods are suggested to measure a straight baseline under Article 7 of the 1982 UNCLOS:

In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.

Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal state in accordance with this Convention.

The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.

Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition.

Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.

The system of straight baselines may not be applied by a state in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone (EEZ).

In addition to a country’s sovereign territorial waters extend to 12 nm (about 22 km) beyond the shore, there is a further 12 nm from the territorial sea baseline limit beyond the 12-nm limit, called ‘contiguous zone’. According to the UNCLOS, a state can continue to enforce its laws in the contiguous zones concerning four specific matters: (1) customs, (2) taxation, (3) immigration and (4) pollution. Since the contiguous zone is located at the margin of the state’s territorial waters, if any infringement started or if this infringement is about to occur there, this would make the contiguous zone a hot pursuit area, especially given that some states that have not signed the UNCLOS often regard these waters as of international ones.

An EEZ is a sea zone over which a state has special rights regarding the exploration and the use of marine resources, including energy production from water and wind. Generally, a state’s EEZ is an area beyond and adjacent to the territorial sea, extending seaward to a distance of no more than 200 nm (about 370 km) out from its coastal baseline. However, there is still exception to this rule when the EEZs of neighbouring states overlap. That is to say, these states’ coastal baselines are less than 400 nm (about 740 km) apart. When the overlap of EEZs occurs, it is up to the states to delineate their actual maritime boundary, though there are several international conventions or rules (note that they could also be confusing since some of these conventions or rules are conflicting with each other).

A state’s EEZ is defined in the UNCLOS as it starts at the coastal edge and extends outwards to the sea for a distance of 200 nm from the baseline. Obviously, the EEZ of a state stretches much further into the sea than its territorial waters, which ends at 12 nm from the coastal baseline. Thus the area of the EEZ includes that of the contiguous zone.

States also have rights to the seabed of what is called the continental shelf. A state’s continental shelf is defined in the UNCLOS as the natural prolongation of its land territory towards the outer edge of continental margin, or 200 nm (about 370 km) from the coastal state’s baseline, whichever is greater. As a result, a state’s continental shelf may exceed 200 nm from its baseline until the natural prolongation ends. However, it may never exceed 350 nm (about 650 km) from the baseline. The UNCLOS permits all coastal states to have the right to harvest (or grant the right to others) mineral and nonliving material in the subsoil of its continental shelf, with the exclusion of any other right. The practice of allotting EEZs to nations and of giving them control of maritime affairs outside territorial limits had not been materialised until the late 20th century. Aside from its provisions defining ocean boundaries, the UNCLOS establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas.

In summary, the most significant issues covered in the provisions of the UNCLOS are setting limits, navigation, archipelagic status and transit regimes, EEZs, continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment and settlement of disputes. The claims for maritime boundaries of major countries are described in Appendix B.

Legal Regimes

I.E. Post-UN Convention on the Law of the Sea

Since the Law of the Sea convention came into force, the need for international regulation of fisheries by international commissions has been reduced. Most states now have an Exclusive Economic Zone which extends 200 miles from their coast. The reason for 200 miles is that this is an approximation to the extent of the continental shelf where, with very rare exceptions, the vast majority of fish are caught, the nutrient-rich environment providing food for plankton and the fish communities dependent on it. Management in these EEZs has had mixed success, but they do in principle provide the opportunity for a single entity, the coastal state, to directly regulate the fisheries in the area.