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.
Jurisdiction “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.
Continental shelf 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.