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 statesThe 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 freedomFor 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 – customary 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 statesToday, 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.
Clear rules, clear limitsThe international law of the sea establishes a framework for conduct, especially in relation to economic interests, with which compliance is mandatory. It regulates fishing and navigation and the extraction of oil and gas at sea. Also the exploitation of other resources of the deep seabed and the protection of the marine environment are regulated.
The law divides the seas into various legal zones. It defines the legal status and extent of these zones and establishes norms governing the rights and jurisdictions of the coastal and flag states in respect of these zones. A state’s jurisdiction decreases as the distance from the coast increases. Jurisdiction ranges from full territorial sovereignty (in internal waters) to limited “aquitorial” sovereignty (in the territorial sea) and limited jurisdiction (in the EEZ and continental shelf). The reference for the calculation of the various maritime zones is known as the baseline. The normal baseline is the mean low-water line along the coast as marked on charts officially recognized by the coastal state.
“Limited jurisdiction” means that a state enjoys exclusive rights to make certain types of use of the resources of the EEZ and the continental shelf, such as the right to fish in these areas.
- Waters on the landward side of the baseline belong to the state’s internal waters. They form part of the national territory of the coastal state, which has complete jurisdiction over them. In some cases, however, it is not the low-water line which delimits the internal waters; this applies in cases where straight baselines or closing lines across a bay are drawn. The law of the sea permits this approach if the coast is characterized by deep indentations and inlets (as in Norway), if a chain of islands stretches along and immediately adjacent to the coast (as with the North Frisian Islands) or if the coast has a bay. For example, the Wadden Sea, to the extent that it lies landwards of the outermost points of the North Frisian Islands, is just as much part of Germany’s internal waters as the ports of Kiel, Hamburg and Bremen.
The territorial sea extends seawards of the baseline to a limit not exceeding 12 nautical miles. It is here that international law begins to restrict the sovereignty of the coastal state: ships of all states enjoy the right of innocent passage through the territorial sea. The coastal state may not make passage through the territorial sea subject to permission or similar restrictions. Under certain circumstances, however, it may take steps to channel ships in transit, e.g. by creating shipping lanes, in order to ensure the safety of navigation.
- Adjacent to the territorial sea is the contiguous zone, which extends up to 24 nautical miles seawards from the baseline. In this area, which partly overlaps with the territorial sea, the coastal state may merely exercise rights of control. For example, it may verify compliance with or infringement of its national laws and regulations, including customs, fiscal, immigration or sanitary laws and regulations, within its territorial sea. Further out to sea, there is the Exclusive Economic Zone (EEZ), which stretches to 200 nautical miles seawards of the baseline.
Unlike the internal waters and the territorial sea, the EEZ does not form part of the national territory. Here, the coastal state merely has specific limited rights which apply not to the maritime area itself but only to the resources existing within it. As the term “Exclusive Economic Zone” implies, only the coastal state may erect and utilize structures such as oil platforms and wind turbines here, or engage in fishing: third countries are excluded from such activities. This is highly significant from an economic perspective: for example, around 90 per cent of all commercially relevant fish species occur in the coastal states’ EEZs. This figure is even more striking given that these economic zones make up just 35 per cent of the seas’ total area.
- 10.3 > Neighbours Denmark, Germany, Poland and Sweden lie so close together that their Exclusive Economic Zones are limited to a narrow belt of water. In some areas, e.g. east of Flensburg, the limits actually lie within the twelve-mile zone.
- 10.6 > In densely populated Europe with its many borders, the Exclusive Economic Zone (EEZ) often extends for less than 200 nautical miles. This applies to the Adriatic, the North Sea and the Mediterranean. Nonetheless, worldwide, around 90 per cent of all commercially relevant fish species are caught in the relatively narrow belt of water which forms the EEZs.
There is a legal and a geological definition of the term “continental shelf”. Legally speaking, the term denotes the zone which extends out to a maximum limit of 200 nautical miles seawards from the baseline. Geologically, the term is applied to the broad, relatively shallow submarine platform adjacent to the coast, which slopes gradually to an average depth of 130 metres. The steep continental slope with a gradient of up to 90 degrees adjoins it on the seaward side.
- The coastal state also has jurisdiction over marine scientific research. The conduct of marine research activities by third countries in the Exclusive Economic Zone therefore generally requires the authorization of the coastal state. In matters pertaining to the protection and preservation of the marine environment, too, the coastal state enjoys specific rights in the Exclusive Economic Zone. It alone may propose the designation of a marine protected area within its EEZ to the International Maritime Organization (IMO) in order to protect the area concerned against pollution from ships. However, a coastal state may not assert territorial claims to any part of the Exclusive Economic Zone. All states enjoy freedom of navigation in the EEZ and have the right to lay submarine cables and pipelines there. UNCLOS also contains specific provisions relating to the continental shelf, of which parts may lie well beneath the EEZ. Like the EEZ, this is an area of jurisdiction where only the coastal state has the right to explore and exploit natural resources. Nature and law dictate that every coastal state in the world has a continental shelf, but the width of that shelf varies considerably, according to geological conditions. As the law stands, however, each coastal state may claim a continental shelf of up to 200 nautical miles. If the natural continental shelf extends beyond 200 nautical miles, an even larger area can be designated as the continental shelf. In that case, under international law, the maximum outer limit may not exceed 350 nautical miles from the baseline or, alternatively, 100 nautical miles seawards from the 2500 metre isobath.
In cases where a coastal state intends to establish the outer limits of its continental shelf beyond 200 nautical miles, it is required to provide evidence to the UN Commission on the Limits of the Continental Shelf (CLCS) that the submarine area concerned is genuinely a natural prolongation of its territory. The Commission scrutinizes the geological and hydrographic data submitted and finally makes a recommendation. The outer limits of the shelf established by a coastal state on the basis of these recommendations are final and binding. However, there is still disagreement within the international community concerning the legal implications of a Commission recommendation. The Commission has no powers of judicial control: scrutiny by the CLCS is merely intended to ensure that the limits of the continental shelf are established in compliance with scientific standards. The CLCS is not a paper tiger, however: a recommendation by the Commission, once published, puts a coastal state under considerable political pressure. Any deviation must be justified, and not once has a recommendation by the CLCS been disregarded.
The outer limits of the Exclusive Economic Zone mark the start of international waters (the high seas). This term applies to the water column beyond the EEZ rather than to the seabed. The high seas are open to all states. No state may subject any part of the high seas to its sovereignty. The “freedom of the high seas” – just as Hugo Grotius envisaged – comprises, in particular, freedom of navigation, freedom of fishing, and freedom of marine scientific research. The non-living resources of the seabed beyond the continental shelf on the seaward side have been declared part of the common heritage of mankind. Extraction of the manganese nodule deposits located in this area (Chapter 7) will henceforth be subject to rules that are geared towards the benefit of mankind as a whole and take into particular consideration the interests and needs of the developing countries. Mining operations will be organized and monitored by the International Seabed Authority (ISA) based in Kingston, Jamaica, which was established specifically for this purpose by the states parties to UNCLOS. The ISA is responsible, in particular, for ensuring the equitable sharing of the benefits arising from deep seabed mining activities. Notably, half the seabed areas for which industrialized nations in future acquire exploration and mining licences are reserved for the developing countries. At present, however, extraction is still unprofitable and the requisite technology is lacking. Only time will tell how well the rules operate in practice.
As a “constitution for the seas”, UNCLOS merely provides the normative framework for international legal governance of the oceans and leaves a number of questions unanswered. This applies especially to aspects which have only been recognized as significant, based on new scientific findings, since UNCLOS was adopted in 1982. There have been new discoveries of ore deposits in the seabed, for example. Global warming is also causing changes. UNCLOS may therefore need to be supplemented by additional treaties in response to these new challenges.