The law of the sea

Fourth edition

Robin Churchill, Vaughan Lowe, Amy Sander

• Publisher: Manchester University Press
• Year: 2022
• ISBN:
  9781526116291
• Topic: Droit
• Subtopic: Théorie et pratique du droit

For nearly forty years, The law of the sea has been regarded as an authoritative and standard work on the subject, combining detailed analysis and relevant, practical examples with a clear and engaging style. Completely revised and updated, this new edition will be a vital resource for anyone with an interest in maritime affairs.The book provides a rigorous analysis of the 1982 UN Convention on the Law of the Sea and the many other legal instruments that regulate human activities at sea, as well as taking full account of the numerous decisions of international courts and tribunals in recent years. It also traces the historical background to the law and its broader political, economic and environmental context. The new edition includes substantially expanded coverage of contemporary threats faced by the marine environment from human activities, such as the loss of marine biodiversity, the effects of climate change on the oceans and the vast amounts of plastic polluting the sea.This volume is written by three highly qualified authors, drawing on their extensive experience of teaching and researching the law of the sea, as well as their practical experience in advising governments and acting as counsel and arbitrators in international litigation.

1

Introduction

Scope of the book

This book is concerned with the public international law of the sea – that is to say, with the rules and principles that bind States in their international relations concerning maritime matters. Accordingly, it does not discuss, except incidentally, the rules of private maritime law, which concern matters such as marine insurance, carriage of goods by sea and maritime liens; nor does it provide a survey of the municipal law of the United Kingdom, or of any other country, relating to the law of the sea. Furthermore, it is concerned with the laws of peace and not with the matters that have traditionally been considered under the heading of the laws of war, and consequently topics such as maritime neutrality and prize law fall beyond its scope. Nonetheless, this leaves a considerable body of law within the purview of the book, although it must be borne in mind that activities at sea are governed not just by the law of the sea and maritime law, but also (and increasingly) by other branches of international law including international environmental law, human rights law and international trade law.¹

Our treatment of the subject falls into two broad divisions. First, we take each of the major maritime zones recognised in contemporary international law and explain the rules presently applicable to that zone against the background of the main stages of the historical development of those rules. Increasingly, however, the law of the sea is being developed along functional, rather than zonal, lines. For example, whereas the 1958 United Nations Conference on the Law of the Sea concentrated mainly on producing a framework of rules governing States’ rights and duties in the territorial sea, continental shelf and high seas, most of the more recent international agreements have been concerned not with particular zones but with particular uses of the sea, such as pollution, fishing (which was in fact also the subject of one of the conventions produced by the 1958 conference) and navigation. We have, therefore, thought it necessary, in order to bring together the many rules of international law relating to the various uses of the sea, to provide separate surveys of each of the main activities carried out in the sea. These functional surveys appear in the later chapters of the book.

The international law of the sea, like international law in general, is in principle limited in its application to States and to other entities having international personality, such as international organisations and the quasi-statal European Union. It has been common to describe the development of the law of the sea in terms of the competing perspectives of ‘shipping’ or ‘maritime’ States and ‘coastal States’. ‘Maritime’ States are epitomised as benefitting overwhelmingly from the freedom to sail and fish, not only around their own coasts but also off the coasts of other States; and consequently as having a clear interest in keeping coastal State powers over foreign ships off their coasts as limited as possible. ‘Coastal’ States, on the other hand, are said typically to be concerned that the freedom of foreign ships to sail, fish and hover adjacent to their coasts brings with it pollution of tourist beaches, over-fishing and smuggling, with little in the way of compensating benefits.

While there is much truth in the picture of competing interests, it is never accurate to consign a State to one or other category and imply that it has purely ‘coastal’ or ‘maritime’ interests. All States have a mixture of interests in the seas, although for some (indeed, most) of them the preponderant interests are those associated with their position as coastal States, and for others the traditional freedoms of the seas are particularly important. The position of any particular State on questions of the law of the sea will be a compromise between the positions of, say, its shipping industry and offshore oil and gas industry, and its fishing and tourism industries – and those positions may vary dramatically over time. For example, in 1964 Britain’s merchant fleet was the largest in the world, with around 14 per cent of world dead-weight tonnage (dwt, which reflects the carrying capacity of ships):² in 2020 it was twenty-second, with around 1 per cent of world dwt.³ Furthermore, there is a very wide variation in the interests of States with different kinds of economic and technological capabilities: as we shall see, the former legal freedom of all States to exploit the rich mineral resources of the deep seabed beyond the limits of national jurisdiction was in practice a freedom from which only a handful of industrialised States could benefit.

Moreover, there is a wide spectrum of maritime interests across which States are distributed.⁴ Around three-quarters of the States in the world have coastlines,⁵ ranging in length from more than 200,000 km around the mainland and island coasts of Canada to the 4 km coast of Monaco. There are very big States with very short coastlines, such as Iraq and the Democratic Republic of the Congo, and States such as Micronesia and Palau whose coastlines are very long relative to their land area. There are States such as Kiribati that are situated in the middle of the ocean, and States such as Singapore that are hemmed in by surrounding States. Around one quarter of States are landlocked; and two – Uzbekistan and Liechtenstein – are doubly landlocked,⁶ i.e., surrounded by States that are themselves landlocked.

Reference is made to major ‘shipping’ States: but that is itself an elusive concept. There were around 98,000 ships in the world trading fleet at the end of 2020, with the largest fleets in terms of their dwt sailing under the flags of Panama, Liberia and the Marshall Islands, which together account for something like 40 per cent of the world dwt – although Greece was the country whose nationals own the largest fleet (sailing under Greek and a variety of foreign flags) measured by dwt, and China was the largest ship-building State.⁷ Then there are the States, such as China and Japan, that are particularly dependent upon shipping for their imports and exports, and the States, such as Singapore and the Netherlands, that are major providers of port services for other States in the region.

The interplay between all of these factors, which sits in the context of broader political and economic alliances between States, and in the crucial context of the vastly differing levels of wealth, industrialisation and technological capacity of States, gives the law of the sea its remarkable richness and its enormously wide relevance for States. But it is not a matter only of concern to States and their officials, whether acting on their own or through one of the many international (inter-governmental) organisations that has particular responsibilities for aspects of the law of the sea, such as the International Maritime Organization (IMO), the UN Food and Agriculture Organization (FAO) and the International Labour Organization (ILO), or regional bodies such as the various regional fisheries commissions. The law of the sea also has immediate significance for what are often known as ‘non-State actors’: people and companies and other legal persons, such as ship-owning companies, or associations of maritime transport workers or of offshore oil and gas industries, or non-governmental organisations (NGOs) focused on the protection of the environment or marine scientific research.

Most activities at sea are carried out by private persons and companies; and it is usually their activities that trigger the application of the law of the sea. For example, individuals may be arrested in coastal waters on charges of illegal fishing, or find that ships that they own or control are denied passage through the waters of an archipelago. In both cases they are immediately involved in situations that give rise to questions of international law, which may be discussed with the local authorities ‘on the spot’, or which may arise in subsequent proceedings in a municipal court, or which may be taken up on the international plane by their government. We discuss the ways in which such disputes arise and are handled, together with the interrelationship between international and municipal law, in the final chapter in this book.

It is generally the case that international law, including the law of the sea, does not itself create rights or obligations for individual persons and companies: as was pointed out by the European Court of Justice (ECJ) in the Intertanko case, they enjoy the benefit of rights by virtue of their attachment to a State so that, for example, ‘they can enjoy the freedom of navigation only if they establish a close connection between their ship and a State which grants its nationality to the ship and becomes the ship’s flag State.’⁸ Rights and obligations are given legal force and effect through the link of nationality and the relevant national (or flag) State legislation or, in respect of activities taking place in coastal State maritime zones, through the legislation of the relevant coastal State. It is also not uncommon for international rules and standards to be given legal force by including them as contractual obligations, for example in licences for the exploration or exploitation of the continental shelf or exploration of the deep seabed.

Thus, States generally act as the medium through which rights and obligations under international law become applicable as a matter of law to non-State actors. Indeed, international courts and tribunals are increasingly holding that States are under a due diligence obligation to ensure that their nationals and ships comply with particular aspects of the law of the sea,⁹ to the point that there is arguably now a presumption that a flag State/State of nationality has a due diligence obligation in respect of practically any aspect of the law of the sea, thus requiring a State, inter alia, to prescribe legislation for its nationals and ships that reflects its international obligations and to have in place the machinery for detecting and taking appropriate action in respect of suspected breaches of that legislation. It is for each State to determine how it will secure the application of international law rights and duties to non-State actors within its jurisdiction. We have spoken of States doing so via legislation, and this is the most common route, although under the municipal laws of some States certain rights and obligations under international law may in fact be directly applicable without the need for implementing legislation.

Laws, whether international or municipal, do not grow up in isolation, but mould, and are moulded by, the politics, economics and geography of the ‘real world’ to which they apply. Wherever competing groups come into contact over a period of time, expectations tend to crystallise into rules of conduct, and some of them eventually into laws. The modern law of the sea is the product of a long history of use of the seas by communities and by what would now be called ‘nations’; and scholars have traced the origins of some of the central doctrines of the modern law of the sea back many hundreds of years to the practice of non-Europeans active in maritime matters.¹⁰ Nonetheless, scholars traditionally place the modern law of the sea in a literary tradition that is usually identified by reference to the great European treatises on international law in general and the law of the sea in particular.¹¹

That European tradition is closely associated with the colonial projects of European powers from the fifteenth to the nineteenth centuries.¹² From the early eighteenth century up to the end of the nineteenth century the seas were largely subject to a laissez-faire regime. Beyond a narrow belt of coastal seas, the high seas were open to free and unrestricted use by all. Such a regime reflected the interests of the dominant colonial powers of the period in promoting seaborne trade and maintaining communications with their colonies. This laissez-faire regime was adequate for the two main uses of the sea – navigation (including trade) and fishing – which prevailed during this period, since ships were small and relatively few in number compared with today, and fish stocks were thought to be inexhaustible.

In the second half of the twentieth century the premises upon which the laissez-faire regime rested underwent a fundamental change. The traditional hegemony of the European States was challenged both by the emergence of two Superpowers, the USA and the USSR (as it then was), which, as major naval powers, shared an interest in maximising the freedom of maritime communication, and also by the nationalism and demands for economic autonomy of the developing countries, most of which gained their independence after the Second World War. The uses of the seas multiplied and intensified as a result of developments in technology and an increasing demand for resources, with correspondingly increased possibilities for conflict. Developments in scientific research and understanding made it clear that the seas are by no means an inexhaustible resource. Offshore oil, gas and mineral deposit...