Law of the Sea

Law of the Sea, branch of international law concerned with public order at
sea. Much of this law is codified in the United Nations Convention on the
Law of the Sea, signed Dec. 10, 1982. The convention, described as a
“constitution for the oceans,” represents an attempt to codify international
law regarding territorial waters, sea-lanes, and ocean resources. It came
into force in 1994 after it had been ratified by the requisite 60 countries; by
the early 21st century the convention had been ratified by more than 150
countries.

According to the 1982 convention, each country’s sovereign territorial

waters extend to a maximum of 12 nautical miles (22 km) beyond its coast,
but foreign vessels are granted the right of innocent passage through this
zone. Passage is innocent as long as a ship refrains from engaging in
certain prohibited activities, including weapons testing, spying, smuggling,
serious pollution, fishing, or scientific research. Where territorial
waters comprise straits used for international navigation (e.g., the straits
of Gibraltar, Mandeb, Hormuz, and Malacca), the navigational rights of
foreign shipping are strengthened by the replacement of the regime of
innocent passage by one of transit passage, which places fewer restrictions
on foreign ships. A similar regime exists in major sea-lanes through the
waters of archipelagos (e.g., Indonesia).

Beyond its territorial waters, every coastal country may establish

an exclusive economic zone (EEZ) extending 200 nautical miles (370 km)
from shore. Within the EEZ the coastal state has the right to exploit and
regulate fisheries, construct artificial islands and installations, use the zone
for other economic purposes (e.g., the generation of energy from waves),
and regulate scientific research by foreign vessels. Otherwise, foreign
vessels (and aircraft) are entitled to move freely through (and over) the
zone.

With regard to the seabed beyond territorial waters, every coastal country
has exclusive rights to the oil, gas, and other resources in the seabed up to
200 nautical miles from shore or to the outer edge of the continental
margin, whichever is the further, subject to an overall limit of 350 nautical
miles (650 km) from the coast or 100 nautical miles (185 km) beyond the
2,500-metre isobath (a line connnecting equal points of water depth).
Legally, this area is known as the continental shelf, though it differs
considerably from the geological definition of the continental shelf. Where
the territorial waters, EEZs, or continental shelves of neighbouring
countries overlap, a boundary line must be drawn by agreement to achieve
an equitable solution. Many such boundaries have been agreed upon, but
in some cases when the countries have been unable to reach agreement
the boundary has been determined by the International Court of
Justice (ICJ; e.g., the boundary between Bahrain and Qatar) or by an
arbitration tribunal (e.g., the boundary between France and the United
Kingdom). The most common form of boundary is an equidistance line
(sometimes modified to take account of special circumstances) between
the coasts concerned.

The high seas lie beyond the zones described above. The waters and
airspace of this area are open to use by all countries, except for those
activities prohibited by international law (e.g., the testing of nuclear
weapons). The bed of the high seas is known as the International Seabed
Area (also known as “the Area”), for which the 1982 convention established
a separate and detailed legal regime. In its original form this regime was
unacceptable to developed countries, principally because of the degree of
regulation involved, and was subsequently modified extensively by a
supplementary treaty (1994) to meet their concerns. Under the modified
regime the minerals on the ocean floor beneath the high seas are deemed
“the common heritage of mankind,” and their exploitation is administered by
the International Seabed Authority (ISA). Any commercial exploration
or mining of the seabed is carried out by private or state concerns
regulated and licensed by the ISA, though thus far only exploration has
been carried out. If or when commercial mining begins, a global mining
enterprise would be established and afforded sites equal in size or value to
those mined by private or state companies. Fees and royalties from private
and state mining concerns and any profits made by the global enterprise
would be distributed to developing countries. Private mining companies are
encouraged to sell their technology and technical expertise to the global
enterprise and to developing countries.
On many issues the 1982 convention contains precise and detailed
regulations (e.g., on innocent passage through territorial waters and the
definition of the continental shelf), but on other matters (e.g., safety of
shipping, pollution prevention, and fisheries conservation and
management) it merely provides a framework, laying down broad principles
but leaving the elaboration of rules to other treaties. Regarding the safety of
shipping, detailed provisions on the safety and seaworthiness of ships,
collision avoidance, and the qualification of crews are contained in several
treaties adopted under the auspices of the International Maritime
Organization (IMO), a specialized agency of the United Nations (UN). The
IMO also has adopted strict antipollution standards for ships. Pollution of
the sea from other sources is regulated by several regional treaties, most of
which have been adopted under the aegis of the United Nations
Environment Programme. The broad standards for fisheries conservation in
and management of the EEZ (where most fishing takes place) laid out in
the 1982 convention have been supplemented by nonbinding guidelines
contained in the Code of Conduct for Responsible Fisheries adopted in
1995 by the UN Food and Agriculture Organization. Principles of
management for high seas fishers are laid down in the UN fish stocks
treaty (1995), which manages straddling and highly migratory fish stocks,
and in detailed measures adopted by several regional fisheries
commissions.

Countries first attempt to settle any disputes stemming from the 1982
convention and its provisions through negotiations or other agreed-upon
means of their choice (e.g., arbitration). If such efforts prove unsuccessful,
a country may, subject to some exceptions, refer the dispute for
compulsory settlement by the UN International Tribunal for the Law of the
Sea (located in Hamburg, Ger.), by arbitration, or by the ICJ. Resort to
these compulsory procedures has been quite limited.

territorial waters, in international law, that area of the sea

immediately adjacent to the shores of a state and subject to the
territorial jurisdiction of that state. Territorial waters are thus to be
distinguished on the one hand from the high seas, which are common to all
countries, and on the other from internal or inland waters, such as lakes
wholly surrounded by the national territory or certain bays or estuaries.
Historically, the concept of territorial waters originated in the controversy
over the status of the sea in the formative period of modern international
law in the 17th century. Although the doctrine that the sea by its nature
must be free to all was eventually upheld, most commentators did
recognize that, as a practical matter, a coastal state needed to exercise
some jurisdiction in the waters adjacent to its shores. Two different
concepts developed—that the area of jurisdiction should be limited to
cannon-shot range, and that the area should be a much greater belt of
uniform width adjacent to the coast—and in the late 18th century these
concepts coalesced in a compromise view that proposed a fixed limit of 3
nautical miles (1 marine league, or 3.45 statute miles [5.5 km]). In 1793
the United States adopted three miles for neutrality purposes, but although
many other maritime states during the 19th century came to recognize the
same limit, it never won such universal acceptance as to become an
undisputed rule of international law.

In the course of this historical development, it became settled that the belt
of territorial waters, together with the seabed and subsoil beneath it and the
airspace above, is under the sovereignty of the coastal state. This
sovereignty is qualified only by a right of innocent passage—that is,
peaceful transit not prejudicial to the good order or security of the coastal
state—for merchant vessels of other nations. The right of innocent passage
does not apply to submerged submarines or to aircraft, nor does it include
a right to fish.

On the width of the belt there has developed no universal agreement

except that every state is entitled to a minimum of three nautical miles.
Claims in excess of 12 nautical miles (22 km) commonly meet widespread
opposition from other states, though in the 1960s and ’70s a trend to a 12-
nautical-mile limit was evident; among about 40 states taking this view
were China, India, Mexico, Pakistan, Egypt, and the Soviet Union.

Distinct from territorial waters proper are zones in the adjacent high seas in
which coastal states claim no territorial rights but assert limited jurisdiction
for one or more special purposes. These contiguous zones of 6 to 12
nautical miles (11 to 22 km) beyond territorial waters are most commonly
claimed for the enforcement of customs and sanitary regulations, but in
some instances they may be established for fishery protection or for
security. Also distinct from territorial waters are the claims made after 1945
by many states to the continental shelf off their shores, in or on which
potentially valuable resources might exist. Such claims met with little
objection from other states when confined to the shelf itself, without
affecting the status as high seas of the waters above, but actions by some
states, such as Chile, Ecuador, and Peru, that asserted jurisdiction over
waters as well as shelf for as much as 200 nautical miles (370 km) offshore
evoked wide protest as amounting to unacceptable extensions of territorial
waters.

A United Nations Conference on the Law of the Sea that was convened at
Geneva in 1958 and attended by 86 nations developed a convention
affirming the commonly accepted principles of the legal nature of the
territorial sea and the right of innocent passage. This convention took effect
in 1964 and by 1970 had been ratified by almost 40 states. A
more comprehensive Law of the Sea treaty was signed by 117 nations in
1982. See also high seas.

International Seabed Authority (ISA), international

organization established in 1994 to regulate mining and related activities in
the international seabed beyond national jurisdiction, an area that includes
most of the world’s oceans. The ISA came into existence upon the entry
into force of the 1982 United Nations Convention on the Law of the Sea,
which codified international law regarding territorial waters, sea-lanes,
and ocean resources. The ISA is headquartered in Kingston, Jam., and has
more than 150 state members.

The supreme authority of the ISA is the assembly, in which all ISA
members are represented. The assembly sets general policies, establishes
budgets, and elects a 36-member council, which serves as the ISA’s
executive authority. The council approves contracts with private
corporations and government entities for exploration and mining in
specified areas of the international seabed, oversees implementation of the
seabed provisions of the Convention on the Law of the Sea, and
establishes provisional rules and procedures (subject to approval by the
assembly) by which the ISA exercises its regulatory authority. The
secretary-general of the ISA is nominated by the council and is elected by
the assembly to a four-year term. The ISA’s annual plenary sessions, which
usually last two weeks, are held in Kingston.
In 2006 the ISA established the Endowment Fund to Support Collaborative
Marine Scientific Research on the International Seabed Area to assist and
encourage scientists from developing countries to contribute to world
marine studies. In 2008 additional efforts were made to recruit new
members, to improve multinational cooperation, and to raise funds.