How does Law of the Sea operate?


This post is written by Simran Bhaskar, a 3rd year BA LLB specialization in Energy Law Student from UPES, Dehradun.

“In civilized life, law floats in a sea of ethics” – Earl Warren

Law of the Sea, a branch of international law concerned with public order at sea. Much of this law is codified in the United Nations Convention on the Law of the Sea, signed Dec. 10, 1982. The convention, described as a “constitution for the oceans,” represents an attempt to codify international law regarding territorial waters, sea-lanes, and ocean resources. It came into force in 1994 after it had been ratified by the requisite 60 countries; by the early 21st century the convention had been ratified by more than 150 countries.

According to the 1982 convention, each country’s sovereign territorial waters extend to a maximum of 12 nautical miles (22 km) beyond its coast, but foreign vessels are granted the right of innocent passage through this zone. The passage is innocent as long as a ship refrains from engaging in certain prohibited activities, including weapons testing, spying, smuggling, serious pollution, fishing, or scientific research.[1] Where territorial waters comprise straits used for international navigation (e.g., the straits of GibraltarMandebHormuz, and Malacca), the navigational rights of foreign shipping are strengthened by the replacement of the regime of innocent passage by one of transit passage, which places fewer restrictions on foreign ships. A similar regime exists in major sea-lanes through the waters of archipelagos (e.g., Indonesia).

Beyond its territorial waters, every coastal country may establish an exclusive economic zone (EEZ) extending 200 nautical miles (370 km) from shore. Within the EEZ the coastal state has the right to exploit and regulate fisheries, construct artificial islands and installations, use the zone for other economic purposes (e.g., the generation of energy from waves), and regulate scientific research by foreign vessels. Otherwise, foreign vessels (and aircraft) are entitled to move freely through (and over) the zone.[2]

With regard to the seabed beyond territorial waters, every coastal country has exclusive rights to the oil, gas, and other resources in the seabed up to 200 nautical miles from shore or to the outer edge of the continental margin, whichever is the further, subject to an overall limit of 350 nautical miles (650 km) from the coast or 100 nautical miles (185 km) beyond the 2,500-metre isobath (a line connecting equal points of water depth). Legally, this area is known as the continental shelf, though it differs considerably from the geological definition of the continental shelf. Where the territorial waters, EEZs, or continental shelves of neighboring countries overlap, a boundary line must be drawn by agreement to achieve an equitable solution. Many such boundaries have been agreed upon, but in some cases when the countries have been unable to reach agreement the boundary has been determined by the International Court of Justice (ICJ; e.g., the boundary between Bahrain and Qatar) or by an arbitration tribunal (e.g., the boundary between France and the United Kingdom).[3] The most common form of boundary is an equidistance line (sometimes modified to take account of special circumstances) between the coasts concerned.

The high seas lie beyond the zones described above. The waters and airspace of this area are open to using by all countries, except for those activities prohibited by international law (e.g., the testing of nuclear weapons). The bed of the high seas is known as the International Seabed Area (also known as “the Area”), for which the 1982 convention established a separate and detailed legal regime. In its original form, this regime was unacceptable to developed countries, principally because of the degree of regulation involved, and was subsequently modified extensively by a supplementary treaty (1994) to meet their concerns. Under the modified regime the minerals on the ocean floor beneath the high seas are deemed “the common heritage of mankind,” and their exploitation is administered by the International Seabed Authority (ISA). Any commercial exploration or mining of the seabed is carried out by private or state concerns regulated and licensed by the ISA, though thus far only exploration has been carried out. If or when commercial mining begins, a global mining enterprise would be established and afforded sites equal in size or value to those mined by private or state companies. Fees and royalties from private and state mining concerns and any profits made by the global enterprise would be distributed to developing countries. Private mining companies are encouraged to sell their technology and technical expertise to the global enterprise and to developing countries.[4]

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On many issues, the 1982 convention contains precise and detailed regulations (e.g., on innocent passage through territorial waters and the definition of the continental shelf), but on other matters (e.g., the safety of shipping, pollution prevention, and fisheries conservation and management) it merely provides a framework, laying down broad principles but leaving the elaboration of rules to other treaties. Regarding the safety of shipping, detailed provisions on the safety and seaworthiness of ships, collision avoidance, and the qualification of crews are contained in several treaties adopted under the auspices of the International Maritime Organization (IMO), a specialized agency of the United Nations (UN). The IMO also has adopted strict antipollution standards for ships. Pollution of the sea from other sources is regulated by several regional treaties, most of which have been adopted under the aegis of the United Nations Environment Programme.[5] The broad standards for fisheries conservation in and management of the EEZ (where most fishing takes place) laid out in the 1982 convention have been supplemented by nonbinding guidelines contained in the Code of Conduct for Responsible Fisheries adopted in 1995 by the UN Food and Agriculture Organization. Principles of management for high seas fishers are laid down in the UN fish stocks treaty (1995), which manages straddling and highly migratory fish stocks, and in detailed measures adopted by several regional fisheries commissions.

Countries first attempt to settle any disputes stemming from the 1982 convention and its provisions through negotiations or other agreed-upon means of their choice (e.g., arbitration). If such efforts prove unsuccessful, a country may, subject to some exceptions, refer the dispute for compulsory settlement by the UN International Tribunal for the Law of the Sea (located in Hamburg, Ger.), by arbitration, or by the ICJ. Resort to these compulsory procedures has been quite limited.







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