The International Law of the Sea

Donald R. Rothwell, Tim Stephens

• Publisher: Bloomsbury Publishing
• Year: 2016
• ISBN:
  9781782256854
• Topic: Droit
• Subtopic: Droit international
• Edition: 1

The law of the sea provides for the regulation, management and governance of the ocean spaces that cover over two-thirds of the Earth's surface. This book provides a contemporary explanation of the foundational principles of the law of the sea, a critical overview of the 1982 United Nations Convention on the Law of the Sea and an analysis of subsequent developments including the many bilateral, regional and global agreements that supplement the Convention.
The second edition of this acclaimed text takes as its focus the rules and institutions established by the Convention on the Law of the Sea and places the achievements of the Convention in both historical and contemporary context. All of the main areas of the law of the sea are addressed including the foundations and sources of the law, the nature and extent of the maritime zones, the delimitation of overlapping maritime boundaries, the place of archipelagic and other special states in the law of the sea, navigational rights and freedoms, military activities at sea, and marine resource and conservation issues such as fisheries, marine environmental protection and dispute settlement.
As the Convention is now well over a quarter of a century old, the book takes stock of contemporary oceans issues that are not adequately addressed by the Convention. Overarching challenges facing the law of the sea are considered, including how new maritime security initiatives can be reconciled with traditional navigational rights and freedoms, and the need for stronger legal and policy responses to protect the global ocean environment from climate change and ocean acidification.

1

The History and Sources of the International Law of the Sea

I. Introduction

The international law of the sea is one of the most important areas of contemporary international law, encompassing not only the ‘constitution of the oceans’, the 1982 United Nations Convention on the Law of the Sea (LOSC),¹ but an ever-growing body of additional treaties, frameworks and state practice for the governance and management of the world’s oceans. Whilst the law of the sea had its initial origins in determining the status and control of ocean space, the contemporary law extends well beyond issues of coastal state sovereignty and jurisdiction, to address the interests of the international community in the deep seabed, high seas, fish stocks, the regulation of marine scientific research, military uses of the oceans, and marine environmental protection. In this regard, the law of the sea, like many other areas of international law, has become more detailed over time, expanding in scope and deepening in content. The result is that aspects of the law of the sea now interact with nearly every other mainstream area of international law and, given the critical importance of the oceans, the law of the sea will have implications for new areas of international law as they are developed.

The international law of the sea has developed across several quite distinctive phases, ranging from early theoretical debates between scholars over the status of the oceans, to the dominance of the freedom of the seas doctrine, to the gradual codification of the law throughout the twentieth century. Although the treaty law at the start of the twenty-first century is relatively well settled, the ongoing march of state practice means that the law remains in a state of evolution and new regulatory efforts are being made to address a wide array of contemporary challenges, ranging from ocean fertilisation to help mitigate climate change, to bioprospecting to discover pharmaceutical products, to a new treaty to protect high seas biodiversity, and to the regional management of strategic ocean spaces such as the South China Sea and the Arctic Ocean. Contemporary challenges to maritime security and oceans governance are also impacting upon the law of the sea, prompting not only a review of established law addressing matters such as piracy and flag state jurisdiction, but also how the myriad of issues posed by climate change for ocean space can be tackled at state, regional and global levels. Climate change poses considerable challenges as it introduces many variables into how the law is to be applied and interpreted. Whilst this is not a completely new dynamic, in that changing ocean and coastline conditions have always had to be addressed by the law of the sea, rapid climate change has the potential to transform nearly all aspects of ocean activity and involves unpredictable consequences for many coastal states. How flexible the law of the sea is in responding to these challenges will be its greatest test.

What follows in this chapter is an outline of the historical developments in the international law of the sea from early periods until contemporary times. Particular attention will be given to the three United Nations Conferences on the Law of the Sea (UNCLOS) which were convened in the second half of the twentieth century and the issues which arose during those negotiations, and the distinctive sources of international law which comprise the international law of the sea. Consideration will also be given to some of the current challenges facing the law of the sea that are explored in more depth in later chapters of the book.

II. Historical Development of the International Law of the Sea

The history of the international law of the sea up until the mid-twentieth century was dominated by European practice. Europeans developed not only sophisticated maritime technology allowing exploration of the furthest reaches of the earth and providing a conduit to the development of maritime trading routes, but also through their naval technology they acquired the means to control and regulate activity on the oceans. Initially the oceans were seen as maritime highways allowing trade and commerce to flourish. However, it was soon realised that naval power gave a state the capacity to control and regulate access to the oceans and this could be used to defeat or control enemies. Accordingly, whilst Roman law provided that the sea was free and common to all,² by the Middle Ages many seas were subject to various forms of appropriation and control by powerful states.³ Whether such claims were completely defendable is doubtful. Nevertheless, this did not deter some expansive claims being made. In a Papal Bull of Pope Alexander VI based upon discoveries made by Columbus and given effect in the 1494 Treaty of Tordesillas, a line drawn on a meridian of longitude through Brazil effectively allocated the known world into an area of Portuguese expansion to the east and Spanish expansion to the west, with consequential impacts upon the adjoining seas.⁴ Such claims were ultimately unsustainable. As Fulton observed: ‘It was those preposterous pretensions to the dominion of the immense waters of the globe that caused the great juridical controversies regarding mare clausum and mare liberum, from which modern international law took its rise.’⁵

A.The Grotian View of the Oceans

Into this realm of conflicting state practice entered the views of publicists who sought to bring a theoretical construct to the debate over the oceans, but also certainty to the debate over access to and ownership of the oceans. One of the earliest, and ultimately the most significant, contributions was made by the Dutch scholar Hugo Grotius with the publication in 1608 of his work Mare Liberum.⁶ In Chapter V Grotius observes how under the law of nations the sea has at various times been referred to as the property of no one (res nullius), a common possession (res communis) and public property (res publica). However, it is clear that the oceans cannot be appropriated because ‘that which cannot be occupied, or which has never been occupied, cannot be the property of any one, because all property has arisen from occupation’.⁷ Likening the sea to the air, which Grotius observed was not susceptible to occupation and whose use was destined for all, he argued:

For the same reasons the sea is common to all, because it is so limitless that it cannot become a possession of any one, and because it is adapted for the use of all, whether we consider it from the point of view of navigation or of fisheries.⁸

Whilst Mare Liberum was influenced by Dutch concerns at the time that the growing East India trade would be hampered by Portuguese maritime power, the Grotian notion of the freedom of the seas gained considerable momentum. Whether Grotius was drawing upon Roman law doctrine, or also received support from Asian state practice as it applied to the Indian Oceans and waters around Southeast Asia, remains debateable,⁹ however his work did provoke a response from numerous other publicists of the age, including the Scottish lawyer William Welwood, Italian scholars such as Pacius, Mattherius, Francipani, Megenius and Zambono, and English authors such as Gerard Malynes, Alberico Gentilis and Lord Chief Justice Coke, who were drawn into what has often been termed the ‘battle of the books’.¹⁰ The most substantive response to Grotius came from the English scholar John Selden whose work Mare Clausum (The Closed Sea) was published in 1635 under the express command of King Charles. Selden sought to assert not only the sovereignty and dominion of the crown of England in British seas, but also to prove that there was long-standing state practice of dominion over the oceans.¹¹ Yet, as observed by Fulton: ‘It was Selden’s misfortune that the cause he championed was moribund, and opposed to the growing spirit of freedom throughout the world.’¹² Ultimately, the Grotian view of the oceans prevailed and freedom of the seas became the doctrine of the time.

B.The Freedom of the Sea and Territorial Sea Claims

With the apparent resolution of this debate over the ownership of the seas, the legal regime of the oceans enjoyed a period of stability from the seventeenth to the nineteenth century. Yet the potential for the unrestrained use of naval capacity remained an issue, both in terms of the ability of naval powers to control certain waters and also to launch raids and bombardments against coastal towns and cities. This was the catalyst for rethinking whether a doctrine of absolute freedom of the seas, which effectively permitted vessels to sail close to foreign coastlines and allowed hostile navies to launch attacks with relative ease, was compatible with the ability of a state to defend itself against foreign forces. Gradually at first, coastal states began to claim a right to control the waters adjoining their coasts. Over time, these claims began to resemble those made over land and territory, such that by the later part of the nineteenth century a distinctive sea area akin in legal status to land territory—the territorial sea—began to emerge.

The territorial sea was an area over which the adjacent coastal state exercised jurisdiction and control, principally for the purposes of security, but also in relation to resources that may have been found close to the coast such as fisheries. These claims were often poorly defined and difficult to enforce unless the state also possessed some level of naval power. Nevertheless, such was the emerging influence of territorial sea claims that it was clear there was a need to accommodate this emerging state practice within the dominant paradigm of the law of the sea which remained the freedom of the seas.

C.1930 Hague Conference

The formation of the League of Nations after World War I provided the impetus for new initiatives for the codification of international law, which in 1924 led to a decision of the Assembly of the League to request the appointment of a Committee of Experts whose task would be to formulate questions for consideration by League members on areas of law suitable for common agreement. In the following years this resulted in League members being consulted on their views on state practice with respect to the law of the sea, with particular emphasis given to the territorial sea and the treatment of foreign vessels.¹³ This was not the only initiative at the time seeking possible codification of the law of the sea, with other bodies throughout the 1920s also addressing similar issues, including the Institut de Droit International, the International Law Association, the German and Japanese Societies of International Law, the American Institute of International Law and the Harvard Law School.¹⁴

Eventually, in 1930, the League of Nations convened the Hague Codification Conference, which was attended by 44 states. However, the meeting was unable to reach any agreement on the law of the sea and no treaty emerged. The principal point of contention was the regime of the territorial sea, especially its breadth and relationship with an adjacent contiguous zone.¹⁵ Despite the failure of the 1930 Hague Conference, state practice continued to develop in the years which followed, most no...