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. It concerns matters such as navigational rights, sea mineral claims, and coastal waters jurisdiction.
While drawn 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), effective since 1994, which is generally accepted as a codification of customary international law of the sea, and is sometimes regarded as the "constitution of the oceans".
Law of the sea is the public law counterpart to admiralty law (also known as maritime law), which applies to private maritime issues, such as the carriage of goods by sea, rights of salvage, ship collisions, and marine insurance.
History
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 known formulation of public international law of the sea was in 17th century Europe, which saw unprecedented navigation, exploration, and trade across the world's oceans. Portugal and Spain led this trend, staking claims over both the land and sea routes they discovered. Spain considered the Pacific Ocean a mare clausum—literally a "closed sea" off limits to other naval powers—in part to protect its possessions in Asia. Similarly, as the only known entrance from the Atlantic, the Strait of Magellan was periodically patrolled by Spanish fleets to prevent entrance by foreign vessels. The papal bull Romanus Pontifex
(1455) recognized Portugal's exclusive right to navigation, trade, and
fishing in the seas near discovered land, and on this basis the
Portuguese claimed a monopoly on East Indian trade, prompting opposition and conflict from other European naval powers.
Amid growing competition over sea trade, Dutch jurist and philosopher Hugo Grotius—considered the father of international law generally—wrote Mare Liberum (The Freedom of the Seas), published in 1609, which set forth the principle that the sea was international territory
and that all nations were thus free to use it for trade. He premised
this argument on the idea that "every nation is free to travel to every
other nation, and to trade with it." Thus, there was a right to innocent passage over land and a similar right of innocent passage at sea.
Grotius observed that unlike land, on which sovereigns could demarcate
their jurisdiction, the sea was akin to air, a common property of all:
The air belongs to this class of things for two reasons. First, it is not susceptible of occupation; and second its common use is destined for all men. 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.
Writing in response to Grotius, the English jurist John Selden argued in Mare Clausum that the sea was as capable of appropriation by sovereign powers as terrestrial territory.
Rejecting Grotius' premise, Selden claimed there was no historical
basis for the sea to be treated differently than land, nor was there
anything inherent in the nature of the sea that precluded states from
exercising dominion over parts of it. In essence, international law could evolve to accommodate the emerging framework of national jurisdiction over the sea.
"Mare clausum" in the European Age of Discovery.
As a growing number of nations began to expand their naval presence
across the world, conflicting claims over the open sea mounted. This
prompted maritime states to moderate their stance and to limit the
extent of their jurisdiction towards the sea from land. This was aided
by the compromise position presented by Dutch legal theorist Cornelius Bynkershoek, who in De dominio maris
(1702), established the principle that maritime dominion was limited to
the distance within which cannons could effectively protect it.
Grotius' 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. Under the mare liberum principle, all waters beyond national boundaries were considered international waters: Free to all nations, but belonging to none of them.
In the early 20th century, some nations expressed their desire to
extend national maritime 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.
By the mid 20th century, technological improvements in fishing and oil
exploration expanded the nautical range in which countries could detect
and exploit natural resources. This prompted United States President Harry S. Truman in 1945 to extend American jurisdiction to all the natural resources of its continental shelf,
well beyond the territorial waters of the country. Truman's
proclamation cited the customary international law principle of a
nation's right to protect its natural resources.
Other nations quickly followed 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
Maritime zones are a core component of modern law of the sea.
The
first attempt to promulgate and codify a comprehensive law of the sea
was in the 1950s, shortly after the Truman proclamation on the
continental shelf. In 1956, the United Nations held its first Conference
on the Law of the Sea (UNCLOS I) in Geneva, Switzerland, which resulted in four treaties concluded in 1958:
- Convention on the Territorial Sea and Contiguous Zone, entry into force: 10 September 1964
- Convention on the Continental Shelf, entry into force: 10 June 1964
- Convention on the High Seas, entry into force: 30 September 1962
- Convention on Fishing and Conservation of Living Resources of the High Seas, entry into force: 20 March 1966
The Convention on the Continental Shelf effectively codified Truman's proclamation as customary international law.
While UNCLOS I was widely considered a success, it left open the
important issue of the extent of territorial waters. In 1960, the UN
held a second Conference on the Law of the Sea ("UNCLOS II"), but this
did not result in any new agreements.
The pressing issue of varying claims of territorial waters was raised
at the UN in 1967 by Malta, prompting the 1973 a third United Nations
Conference on the Law of the Sea 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.
UNCLOS 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.
The Convention also codified freedom of the sea, explicitly
providing that the oceans are open to all states, with no state being
able to subject any part to its sovereignty. Consequently, state parties
cannot unilaterally extend their sovereignty beyond their EEZ, the 200
nautical miles in which that state has exclusive rights to fisheries,
minerals, and sea-floor deposits. "Innocent passage" is permitted
through both territorial waters and the EEZ, even by military vessels,
provided they do no harm to the country or break any of its laws.
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 it was ratified by the 60th state, Guyana;
the four treaties concluded in the first UN Conference in 1956 were
consequently superseded. As of June 2019, UNCLOS has been ratified by
168 states.
Many of the country that have not ratified the treaty, such as the
U.S., nonetheless recognize its provisions as reflective of
international customary law. Thus, it remains the most widely recognized and followed source of international law with respect to the sea.
Between 2018 and 2020, there is a conference on a possible change
to the law of the sea regarding conservation and sustainable use of
marine biological diversity of areas beyond national jurisdiction
(General Assembly resolution 72/249).
Recognition and enforcement of law of the sea
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). Its 21 judges are drawn from a wide variety of nations. Because the EEZ is so extensive, many ITLOS cases concern competing claims over the ocean boundaries between states As of 2017, ITLOS had settled 25 cases.
Maritime Law
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.
