Public International Law Notes - The Law of the Sea

PIL: L9 – Law of the Sea

Law of the Sea:
 One of the earliest areas of international law. Grotius and other scholars developing
the concept of freedom of the high seas
 Sea has been important: trade, resources, communication, military and security
 Freedom of the seas vs rights of coastal states
 ‘Zonal’ approach to the seas – what can be done in each part depends on what kind
of zone it is
 UN Convention on the Law of the Sea (UNCLOS) – a constitution for the oceans –
represents customary law
 Does not include ‘maritime law’ – a separate body of (domestic) law regarding
maritime activities (e.g. shipping contracts)
 Coastal state interests: security, control over vessels, maritime law e.g. drug
smuggling
 Community interests: high seas, freedom of navigation, flag state control

Codification of the Law of the Sea:
 Up to the middle of the 20th century the law of the sea was mainly customary law.
 The growing complexity of interests, unilateral claims, need to obtain a
measure of stability through a multilateral approach  need to go beyond
customary law through the process of codification.
 League of Nations - Various law of the sea questions were made the object of a
questionnaire submitted to States by the League Committee of Experts.
 The Hague codification conference of 1930 did not succeed in adopting
conventional rules on territorial waters, mainly because of disagreements as to the
width of these waters
 1982 UN Convention on the Law of the Sea (UNCLOS) The objective was to
maintain the unity of the law of the sea by producing a single convention on which
there would be universal consensus and to which reservations would not be
permitted. However, not all states have ratified (e.g. United States)
 ‘Zonal approach’ seeks to balance community interests and those of coastal states
 Customary international law is still developing with new practice and opinio juris

Zones:
 The maritime zones set out in the UN Convention on the Law of the Sea
(UNCLOS):
1) the territorial sea, including special provisions on international straits;
2) the contiguous zone;
3) archipelagic waters;
4) the exclusive economic zone;
5) the continental shelf;
6) the high seas;
7) the International Seabed Area (the ‘Area’).

Internal waters:
 lakes, rivers, harbours
Baselines:
 Territorial sea is defined from the ‘low water mark’ around the coast of a state
 Coast line at low-tide is considered the baseline

,  Special rules have developed regarding the baseline, especially in areas where there
are islands or bays

Anglo-Norwegian Fisheries Case:
 Norway creates straight baselines along its coastline
 This ‘closed in’ areas that would otherwise have been the high seas
 UK challenged the baselines under international law
 Normal method of calculating baselines was not applicable, due to the nature of the
coastline (including extreme indentations and islands)
 Norwegian system had been tolerated by other states for years (no objections) –
therefore rights had been acquired through practice and acquiescence
 The principles were then accepted by states in international law

Bays:
 24 mile width
 Historic bays e.g. Canada claim on Hudson Bay (US disputes)
 Libya Gulf of Sidra

Islands:
 Article 12 UNCLOS: “a naturally-formed area of land, surrounded by water, which is
above water at high tide.”
 Chain of islands less than 24 miles apart – continuous territorial sea can be granted
 Rocks that cannot sustain human habitation or economic life cannot generate
territorial sea
 What is the dividing line between rocks and islands?
 ICJ, Romania v Ukraine: Romania argued that Serpent’s Island, located 20 nautical
miles (nm) offshore of the Danube delta, should be considered a rock and therefore
only capable of generating a 12 nm territorial sea under Article 121(3) of the 1982
United Nations Convention on the Law of the Sea (UNCLOS)

Archipelagic States:
 States made up of a group of islands
 Use of baselines can have the effect of boxing in the islands and preventing use of
shipping lanes e.g. Indonesia
 Art 46(a) UNCLOS deals with archipelagic states (defined in Art. 47)
 Allows straight baselines joining the outermost islands and reefs
 Right of innocent passage through Archipelagic waters – conditions
- No discrimination between ships
- Temporary
- AS specifies areas where innocent passage is allowed
- Essential for its security
- Published
 Article 46 – Use of terms: “For the purposes of this Convention:
(a) "archipelagic State" means a State constituted wholly by one or more
archipelagos and may include other islands;
(b) "archipelago"meansagroupofislands,includingpartsofislands, interconnecting
waters and other natural features which are so closely interrelated that such
islands, waters and other natural features form an intrinsic geographical,
economic and political entity, or which historically have been regarded as such.
 Article 47 – Archipelagic baselines: