Law of the sea

From Wikipedia, the free encyclopedia
Jump to navigation Jump to search
Mare Liberum (1609) by Hugo Grotius is one of the earliest works on law of the sea.

Law of the Sea is a body of international law governing the rights and duties of states in maritime environments.[1] It governs such matters as navigational rights, sea mineral claims, and coastal waters jurisdiction, it is the public law counterpart to admiralty law (also known as maritime law), which concerns private maritime issues, such as the carriage of goods by sea, rights of salvage, collisions, and marine insurance.

Although derived from a number of international customs, treaties, and agreements, modern law of the sea derives largely from the United Nations Convention on the Law of the Sea (UNCLOS), concluded in 1982 and coming into force in 1994, which is generally accepted as a codification of customary international law of the sea, and sometimes regarded as the "constitution of the oceans".[2][3]

History[edit]

Among the earliest examples of legal codes concerning maritime affairs is the Byzantine Lex Rhodia, promulgated between 600 and 800 C.E. to govern trade and navigation in the Mediterranean. Maritime law codes were also created during the European Middle Ages, such as the Rolls of Oléron, which drew from Lex Rhodia, and the Laws of Wisby, enacted among the mercantile city-states of the Hanseatic League.

However, the earliest conceptualization of public international law regarding the sea came from Dutch jurist and philosopher Hugo Grotius— considered the father of international law more generally—who in 1609 published Mare Liberum (The Freedom of the Seas), which set forth the novel principle that the sea was international territory and that all nations were thus free to use it for trade. Conversely, Grotius' contemporary, the English jurist John Selden, argued in Mare Clausum (Closed Sea) that the sea was, in practice, as capable of appropriation as terrestrial territory.[4] A compromise position was presented a century later by Dutch legal theorist Cornelius Bynkershoek in De dominio maris (1702), whereby maritime dominion was limited to the distance within which cannon range could effectively protect it.

Maritime zones are a core component of modern law of the sea.

The concept of "freedom of the seas" became virtually universal through the 20th century, following the global dominance of European naval powers. National rights and jurisdiction over the seas were limited to a specified belt of water extending from a nation's coastlines, usually three nautical miles (5.6 km), according to Bynkershoek's "cannon shot" rule.[4] Per Grotius' mare liberum principle, all waters beyond national boundaries were considered international waters: Free to all nations, but belonging to none of them.[5]

In the early 20th century, some nations expressed their desire to extend national claims, namely to exploit mineral resources, protect fish stocks, and enforce pollution controls. To that end, in 1930, the League of Nations called conference at The Hague, but no agreements resulted.[6] Citing the customary international law principle of a nation's right to protect its natural resources, President Harry S. Truman in 1945 extended United States control to all the natural resources of its continental shelf. Other nations were quick to follow suit: Between 1946 and 1950, Chile, Peru, and Ecuador extended their rights to a distance of 200 nautical miles (370 km) to cover their Humboldt Current fishing grounds.

UN Convention of the Law of the Sea[edit]

The first attempt to promulgate and codify a comprehensive law of the sea was in the 1950s, shortly after the U.S. initiated the continental shelf custom in international law. In 1956, the United Nations held its first Conference on the Law of the Sea (UNCLOS I) at Geneva, Switzerland, which resulted in four treaties concluded in 1958:[9]

Although UNCLOS I was widely considered a success, it left open the important issue of the extent of territorial waters. In 1960, the UN held the second Conference on the Law of the Sea ("UNCLOS II"), but this did not result in any new agreements.[8] The pressing issue of varying claims of territorial waters was raised in the UN in 1967 by Arvid Pardo of Malta, and in 1973 the Third United Nations Conference on the Law of the Sea was convened in New York City. In an attempt to reduce the possibility of groups of nation-states dominating the negotiations, the conference used a consensus process rather than majority vote. With more than 160 nations participating, the conference lasted until 1982, resulting in the UN Convention of the Law of the Sea, also known as the Law of the Sea Treaty, which defines the rights and responsibilities of nations in their use of the world's oceans.

The convention introduced a number of provisions, of which the most significant concerned navigation, archipelagic status and transit regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes, it also set the limit of various areas, measured from a carefully defined sea baseline.

Parties to the United Nations Convention on the Law of the Sea (as of June 2019).

The convention came into force on 16 November 1994, one year after the 60th state, Guyana, ratified it; the four treaties concluded in the first UN Conference were thus superseded. As of June 2019, UNCLOS has been ratified by 168 states.[5] Even many of the countries that have not ratified the treaty, such as the United States, nonetheless recognize its provisions as reflective of international customary law.[6] Thus, it remains the most widely recognized and followed source of international law with respect to the sea.

Law of the sea in the 21st century[edit]

With more people turning their eyes to an ocean in peril the past decade, the Law of the Sea Convention turned into a global diplomatic effort to create a basis of laws and principles for all nations to follow concerning the sea and everything it held; the conference created the standard for a 12-mile territorial sea around a land and allowed it to gain universal acceptance. Within these limits, states are free to enforce any of their own laws or regulations or use any resources. Furthermore, each signatory coastal state is granted an Exclusive Economic Zone (or "EEZ"), in which that state has exclusive rights to fisheries, mineral rights and sea-floor deposits; the Convention allows for "innocent passage" through both territorial waters and the EEZ, meaning ships do not have to avoid such waters, provided they do not do any harm to the country or break any of its laws. This includes military vessels, as long as they too adhere to the definition of innocent passage laid out in UNCLOS Article 19;[7] because the EEZ is so extensive, ITLOS may need to determine the ocean boundaries between states, as they did in 2012 between Bangladesh and Burma (Myanmar).[8]

As the Arctic Ocean becomes increasingly important for both navigation and resources, the U.S. may find it necessary to submit to UNCLOS to clarify the Alaska/Canada border.

Recognition and enforcement of law of the sea[edit]

Although UNCLOS was created under the auspices of the UN, the organization has no direct operational role in its implementation. However, a specialized agency of the UN, the International Maritime Organization, plays a role in monitoring and enforcing certain provisions of the Convention, along with the intergovernmental International Whaling Commission, and the International Seabed Authority (ISA), which was established by the Convention to organize, regulate and control all mineral-related activities in the international seabed area beyond territorial limits.

UNCLOS established the International Tribunal for the Law of the Sea (ITLOS), based in Hamburg, Germany, to adjudicate all disputes concerning the interpretation or application of the Convention, subject to the provisions of Article 297 and to the declarations made in accordance with article 298 of the Convention.[9] [10] Its 21 judges are drawn from a wide variety of nations;[11] as of 2017, ITLOS had settled some 25 cases.[12][13]

Maritime Law[edit]

Law of the Sea should be distinguished from maritime law, which concerns maritime issues and disputes among private parties, such as individuals, international organizations, or corporations. However, the International Maritime Organisation, a UN agency that plays a major role in implementing law of the sea, also helps to develop, codify, and regulate certain rules and standards of maritime law.

See also[edit]

References[edit]

  1. ^ James Harrison, Making the Law of the Sea: A Study in the Development of International Law (2011), p. 1.
  2. ^ "Rhodian Sea Law | Byzantine law". Encyclopedia Britannica. Retrieved 2019-06-27.
  3. ^ "Law of the Sea | international law [1982]". Encyclopedia Britannica. Retrieved 2019-06-27.
  4. ^ The Oxford Handbook of the Law of the Sea. Oxford University Press. 2015-03-01. doi:10.1093/law/9780198715481.001.0001/oxfordhb-9780198715481. ISBN 9780191783241.
  5. ^ "United Nations Treaty Collection". treaties.un.org. Retrieved 2019-06-28.
  6. ^ US Department of Commerce, National Oceanic and Atmospheric Administration. "What is the law of the sea?". oceanservice.noaa.gov. Retrieved 2019-06-28.
  7. ^ United Nations Convention on the Law of the Sea [1]
  8. ^ Case 16
  9. ^ ITLOS jurisdiction
  10. ^ ITLOS
  11. ^ ITLOS judges
  12. ^ ITLOS cases
  13. ^ List of cases

External links[edit]