Law of the Sea & 1982 UNCLOS

• The law of the sea is a complex, evolving area of international law governed primarily by the 1982 UNCLOS, also known as the "Montego Bay Convention"

1982 UNCLOS

• There is no simple way to gain familiarity with UNCLOS
• It is essential to read it carefully, paying attention to the titles, headings, and interrelationships of its various articles and chapters
• The full text of UNCLOS is accessible on the UN website
• It is important to note that not all sections of the Convention have been assigned for study

Development of the Law of the Sea

• Before 1982, the international law of the sea was fragmented and based on customary rules
• The customary rules were supplemented or modified by four 1958 Geneva Conventions

The Four 1958 Geneva Conventions Related to the Law of the Sea

• Territorial Sea and Contiguous Zone
• High Seas
• Fishing and Conservation of the Living Resources of the High Seas
• Continental Shelf
• The 1958 Geneva Convention on the High Seas was meant to codify pre-existing law
• The other three conventions partly codified customary law and progressively developed it
• The 1958 Geneva Conventions did not resolve all questions related to the law of the sea

1982 UNCLOS Framework

• UNCLOS was meant to establish a comprehensive framework for the law of the sea
• Many of its rules have achieved customary international law status, making the task of international lawyers easier
• Ability to visualize the different zones involved in the law of the sea is important

Maritime Zones

• Coast/Baseline: Where sovereignty extends to the water column, the airspace above, and the seabed and subsoil
• Territorial Sea: Extends to 12 nautical miles
• Contiguous Zone: Extends to 24 nautical miles, limited law enforcement
• Exclusive Economic Zone: Extends to 200 nautical miles
• Continental Shelf: Sovereign rights over natural resources of the water column and the seabed and subsoil
• Extended Continental Shelf
• High Seas
• Deep Seabed Area

UNCLOS Measurements

• The Contiguous Zone (CZ) and Exclusive Economic Zone (EEZ) are measured from the baseline
• The rights and powers associated with each zone fall outside of the territorial sea
• The size of each zone may depend upon the size of the previous zone, as these zones are measured from the baseline
• If there is a 6-mile territorial sea (TS) and a CZ extends to the full 24 miles from the baseline, then the CZ is effectively 18 miles wide

Internal Waters

• Internal waters are bodies of water that fall within a state's territory where the state has sovereignty
• The basic legal concept of State sovereignty in customary international law extends to the internal waters and territorial sea of every State and the air space above its territory

Jurisdiction

• States have complete jurisdiction over their internal waters as they do over their land
• A state's jurisdiction differs between its internal waters and territorial seas
• The extent of jurisdiction also depends on the type of vessel

Territorial Sea

• Territorial seas are covered in 1982 UNCLOS, Arts 2-14
• The breadth of the territorial sea for the United States is 12 nautical miles measured, as proclaimed by President Reagan on December 27, 1988
• The breadth of the territorial sea for the United Kingdom is 12 nautical miles, as stated in the Territorial Sea Act 1987

Baselines

• A baseline is the notional line from which the breadth of various types of maritime zones are measured
• maritime zones: the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf and, by implication, the high seas
• Baselines can be drawn exactly at the low water mark and follow the coast exactly
• Straight baselines may also be drawn from different points along the coast

Low-tide elevation definition from Pedra Branca/Pulau Batu Puteh Case

• A coastal State has sovereignty over low-tide elevations which are situated within its territorial sea, since it has sovereignty over the territorial sea itself
• Silence on the question of whether low-tide elevations can be considered to be ‘territory' is noted
• It has never been disputed that islands constitute terra firma, and are subject to the rules and principles of territorial acquisition
• It is not established that in the absence of other rules and legal principles, low-tide elevations can, from the viewpoint of the acquisition of sovereignty, be fully assimilated with islands or other land territory

Bays

• Bays are deep indentations along a state's coastline
• To count as bays for the purposes of the law of the sea, they must fall within the definition of UNCLOS.

Global Warming and Sea Level Rise

• An issue that has arisen because of sea level rise is what happens to a maritime boundary if the land mass from which it was drawn (the baseline) submerges

Innocent Passage

• Ships have a right of innocent passage through both territorial seas and international straits
• There are clear differences between the customary rule regarding coastal state criminal jurisdiction over its internal waters and the 1982 UNCLOS rule regarding such jurisdiction over the territorial sea
• In the former area, the coastal state has complete sovereignty
• In the territorial sea, however, the "criminal jurisdiction of the coastal State should not be exercised" save in the exceptions specified in article 27 (emphasis added)

International Straits

• The Corfu Channel is an example of an international strait
• Contiguous zone is covered in the 1982 UNCLOS, Art. 33

Contiguous Zone Overview

• It is a zone contiguous to its territorial sea
• The coastal State may exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea
• The coastal State may punish infringement of the above laws and regulations committed within its territory or territorial sea
• The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured

Archipelagic Waters

• The archipelagic waters regime is important because it is applicable to several of the states of the Caribbean
• Antigua and Barbuda, The Bahamas, Grenada, Jamaica, St. Vincent and the Grenadines, and Trinidad and Tobago all have claimed archipelagic status.

Exclusive Economic Zone Legal Status

• In terms of customary international law status, the EEZ quickly attracted support
• Continental Shelf Case (Tunisia v. Libya) 1982: "[T]he concept of the exclusive economic zone may be regarded as part of modern international law.”
• U.S Proclamation of an EEZ, March 10, 1983: Zone beyond territory and adjacent to territorial sea, a coastal State may assert certain sovereign rights over natural resources and related jurisdiction

Continental Shelves under UNCLOS

• UNCLOS sets out two general types of continental shelves: one based solely on distance from the baseline that is coterminous with the EEZ (Art 76(1)), and one based upon geological features (Art 76(5))
• Truman Proclamation on the Continental Shelf, 1945

High Seas

• In other words, the high seas do not arise at a fixed distance from the coast
• For those states with a full EEZ, the high seas will start 200 nautical miles from their baselines
• For those states without an EEZ or contiguous zone, the high seas will start at the end of their territorial seas (12 n.m.)
• The 1982 UNCLOS, Art. 86 covers high seas legislation

High Seas Historical Claims to Ownership

• An example of a claim to ownership over the high seas can be found in a papal bull addressed to the Portuguese in the 15th Century regarding ownership of western Africa
• A later denial of such claims is found in a letter by Queen Elizabeth protesting the ability of Spain to exclude England from the West Indies
• It is stated that all are at liberty to navigate that vast ocean, since the use of the sea and the air are common to all

Vessels subject to State Authority

• Vessels on the high seas are subject to no authority except that of the State whose flag they fly
• In virtue of the principle of freedom of the high seas, that is to say, in the absence of any territorial sovereignty over the high seas, no State may exercise any kind of jurisdiction over foreign vessels upon them
• "Note 1" [Harris §7-069] related to high seas

Modern Freedoms Under UNCLOS

• Nationality of Ships is covered in the 1982 UNCLOS, Arts 87-90
• Review: 1982 UNCLOS, Art 90
• The M/V “Saiga” Case (No. 2) (St. Vincent and the Grenadines v. Guinea), Merits, (1999) 120 I.L.R. 143 (I.T.L.O.S.) [Harris §7-075 – 7-076]

Ship Jurisdiction

• Default rule: except as otherwise expressly provided, flag ships are subject to the exclusive jurisdiction of the flag state
• The main exceptions allow any state to exert jurisdiction to prevent: transport of slaves, Piracy, Drug trafficking, and Unauthorised broadcasting.

The Deep Seabed

• The area of the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of states
• There are three main topics related to the deep seabed regime under the 1982 UNCLOS, as modified
• They are the Area, the Authority and the Enterprise

The Area

• Area is the seabed and ocean floor, and subsoil beyond the limits of national jurisdiction
• Area itself and all of its resources are the common heritage of mankind [Art. 136]
• waters above the ocean floor remain high seas [Art. 135]
• All activity dealing with resources or use of the Area is governed by the 1982 UNCLOS and the 1994 Agreement [Arts 1, 133]
• States are responsible for any activity of their nationals
• The Area is only to be used for peaceful purposes [Art. 141], and all activities undertaken are for the benefit of mankind as a whole [Art. 140 and 148]

The Authority

• The Authority is the International Seabed Authority
• It is based in Jamaica
• It is the central administrative body in charge of the entire deep seabed regime

The Enterprise

• It is the working arm of the Authority
• In charge of carrying out the Authority's activities in the Area

BBNJ Agreement

• Delegations, including CARICOM, negotiated the Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement)
• The Agreement will have tremendous scope once it enters into force
• Geographically it covers all ocean areas beyond national jurisdiction, approximately 60 percent of the earth's surface

Hot Pursuit requirements under 1982 UNCLOS, Art. 111

• For lawful hot pursuit the coastal state must have good reason to believe that a violation has taken place and the pursuit must be: started in any of the specified zones; done by a warship, clearly marked government vessel, or aircraft of the same standing; accompanied by an auditory or visual command to the vessel to stop; and uninterrupted if it is to continue outside the territorial sea or contiguous zone
• 'Auditory of visual signals' – both R v Mills and the Arctic Sunrise Arbitration, 2015 allowed use of radio transmissions in a situation where there could be no mistake that the Government vessel was in pursuit.