A constitution for the seas
10.1 > The Dutch jurist Hugo Grotius (1583 to 1645) formulated the principle of “freedom of the seas”, arguing that the sea was international territory and all nations were free to use it. He immortalized his idea in his book Mare Liberum (also known as De mare libero) in 1609.
One set of rules for all states
The international law of the sea comprises all the legal norms pertaining to the sea and applicable to relations between states. It contains rules on the delimitation and exploitation of maritime areas as well as provisions on the protection and exploration of the oceans. However, some fields fall outside its scope; these include matters covered by national legislation, such as regulations on port and harbour operations, and maritime law, which in Germany is mainly enshrined in the Commercial Code and regulates activities such as the transportation of goods.
The end of legal freedom
For thousands of years, the sea was simply a source of food and was only of interest to people to that extent. With the rise of the great seafaring nations such as the Netherlands, Portugal and Spain from the 15th century onwards, however, these kingdoms increasingly sought to expand their spheres of influence. Access to mineral resources and other new commodities aroused ambitions and triggered a race to conquer the oceans, faraway islands and coastlines and thus achieve dominance in the world. This led to numerous wars and sea battles.
Early on, scholars sought answers to one important question: who does the sea actually belong to? It is a question which the international law of the sea has been unable to resolve satisfactorily to this day. From the outset, the quest for an answer was dominated by the tension between the concept of the freedom of the seas, or mare liberum (the free sea), formulated by the Dutch philosopher and jurist Hugo Grotius (1583 to 1645), and the concept of mare clausum (closed sea) developed by the English scholar and polymath John Selden (1584 to 1654). The pivotal issue was – and is – whether the sea is international territory and all nations are free to use it, or whether it can be claimed by individual states.
Neither of these two positions has ultimately prevailed, and the conflict between the positions is still apparent in the present structure of the international law of the sea.
Currently, the primary instrument of governance for the seas is the United Nations Convention on the Law of the Sea (UNCLOS), which was adopted in 1982 as the outcome of the Third United Nations Conference on the Law of the Sea (UNCLOS III). Various norms of customary international law supplement UNCLOS. The Convention is the most comprehensive international treaty ever concluded. It is based on the four Geneva Conventions on the Law of the Sea adopted in 1958: these are the Convention on the Territorial Sea and the Contiguous Zone; the Convention on the High Seas; the Convention on Fishing and Conservation of the Living Resources of the High Seas; and the Convention on the Continental Shelf. These treaties codified the – unwritten – custom-
ary law which had previously applied. For example, since the mid-17th century, countries had generally accepted that national rights applied to a specified belt of water, known as the territorial sea, extending from a nation’s coastlines, usually for three nautical miles – roughly equivalent to the distance travelled by a cannon shot.
- From the mid-20th century, the seas became an increasing focus of interest as a source of natural resources such as oil and gas. Many coastal states therefore attempted to extend their national jurisdiction over ever-larger areas of the sea and the seabed. Some laid claim to a 200 nautical mile zone. The concept of “mare liberum” appeared to have been consigned to history. After an initial attempt to regulate the maximum permissible extent of the territorial sea in an international treaty failed in 1930, the four Geneva Conventions were finally adopted under United Nations auspices in 1958. The aim of these international agreements was to prevent the sea from being divided up, once and for all, between various countries. However, this aim was not achieved in full. For example, the discovery of major deep seabed deposits of manganese nodules in the eastern and central Pacific Ocean, at considerable distance from the coast, in the 1960s sparked new ambitions among the industrial countries (Chapter 7). At present, the key question being discussed is which nations can lay claim to the wealth of mineral resources located in the Arctic, which in future will become easier to access as the sea ice retreats.
10.2 > UNCLOS divides the sea into various legal zones, with the state’s sovereignty decreasing with increasing distance from the coast. Every state has the right to territorial sea, not exceeding 12 nautical miles, in addition to its internal waters. In the territorial sea, the sovereignty of the coastal state is already restricted under international law, as ships of all states enjoy the right of innocent passage through it. In the contiguous zone, which may not extend beyond 24 nautical miles from the relevant baselines, the coastal state may merely exercise rights of control, for example to prevent infringement of its customs regulations. In the Exclusive Economic Zone (EEZ), which extends for up to 200 nautical miles, the coastal state has sovereign rights for the purpose of exploring and exploiting the natural resources, whether living or non-living, of the waters. On the continental shelf, which may extend beyond the EEZ, the coastal state has sovereign rights for the purpose of exploring and exploiting the natural resources, whether living or non-living, on or under the seabed.
More scope for coastal states
Today, UNCLOS draws together the four Geneva Conventions – the “old” law of the sea – in a single unified treaty. In substantive terms, however, it actually goes further than the four. For example, under the “new” law of the sea, the rights of the coastal states are expanded, in some cases substantially, in both qualitative and quantitative terms. For example, each coastal state has exclusive rights to exploit the fish stocks in the Exclusive Economic Zone (EEZ) which extends to a distance of 200 nautical miles out from the coastal baseline. Under the Geneva Conventions, the EEZ did not exist. UNCLOS also provides the legal basis for the International Tribunal for the Law of the Sea (ITLOS), which commenced its work in Hamburg in 1996. However, the Tribunal is not the only judicial institution responsible for safeguarding compliance with UNCLOS. The states parties to UNCLOS are free to choose whether they wish to submit disputes concerning the interpretation and application of UNCLOS to ITLOS, or whether they prefer to apply to the International Court of Justice (ICJ) in The Hague or another international arbitral tribunal.
It took some years for UNCLOS to be accepted: most industrialized countries rejected it at first due to a number of highly contentious provisions on deep sea mining. For example, UNCLOS initially required these nations to share their deep sea mining know-how with the developing countries. Once the provisions had been watered down, reinforcing the position of the industrial nations, UNCLOS entered into force in 1994, 12 months after Guyana became the 60th country to sign the Convention and 12 years after its adoption. As of July 2009, 157 states had acceded to the Convention. Countries which have not acceded to UNCLOS are still bound by the provisions of the 1958 Geneva Conventions and the norms of customary international law. >