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Week 11:
The Law of the Sea
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Relevance of the Law of the Sea

➢ Oceans and seas cover 70 percent of the earth’s surface

➢ The seas have historically performed two important functions:
➢ As a vital means of transportation for travel and commerce,
➢ As a reservoir of resources.
➢ In 1493-1494, the Pope divided the known oceans and newly found overseas
territories between Spain and Portugal (then the two leading seagoing powers in
Europe); this concept was defined as Closed Sea (Mare Clausum)
➢ But these claims stimulated a response by Hugo Grotius (1583-1645) who is the
‘father of the law of the sea’. Grotius elaborated the doctrine of the ‘open seas’ (Mare
Liberum), whereby the oceans as ‘res communis’ were to be accessible to all nations
but cannot become property of a state

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The seas present issues because of

o Competing claims to resources and

o Jurisdictional issues
o Nationality: Jurisdiction follows the flag (art. 91 UNCLOS III). Every ship outside of its
own territorial jurisdiction must fly a flag indicating the state of registry. The law of ‘flag
state’ governs matters relating to internal affairs aboard a ship, including discipline.
o Within ports (internal waters) or territorial seas and contiguous zones, a ship must obey
the host country’s navigation and similar regulations.
o On the high seas, the law of the flag state prevails.
o

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Freedom of the High Seas

became a basic principle of international law, but:

It was permissible for a coastal state to appropriate a maritime belt around its
coastline as ‘territorial waters’, or ‘territorial sea’.
Beyond the territorial water, other jurisdictional zones have been developed:

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Jurisdictional Zones in the
Law of the Sea

❑ Internal Waters
❑ Territorial Sea
❑ Contiguous Zone
❑ Exclusive Economic Zone
❑ Continental Shelf
❑ High Seas
❑ The International Seabed

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Maritime boundaries & Jurisdictional
Principles

➢ From the late 17th century until mid- 20th century, only three divisions:
➢ Internal waters (ports),
➢ The territorial sea (and contiguous zone), and
➢ The high seas.

➢ After the 1982 Convention (UNCLOS III) the sea has five different zones:
➢ 1. Internal waters, 2. Territorial seas, 3. Contiguous zones, 4. Exclusive
economic zone (EEZ), 5. High Seas.

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Maritime zones under UNCLOS

Baseline

Territorial
Sea Water
12 Contiguous
Zone
24 High Seas

Land Internal EEZ

Waters
200

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Jurisdictional Zones / Sovereignty issues

➢ Internal Waters
➢ flow automatically from sovereignty exercised over land territory. A state has an exclusive
right to exploit & control these areas. In general, a coastal state may exercise its
jurisdiction over foreign ships (private ships) within its internal waters to enforce its laws.
➢ But the judicial authorities of the flag state may also act where crimes have occurred on
board ship, but as a matter of customary law, except under extraordinary circumstances,
a port state does not have the right to interfere in the internal operation of the ship
➢ Warship has absolute immunity from civil and criminal jurisdiction in port.
➢ Territorial Sea (up to 12 sm): coastal st. has full sovereignty except for right of innocent
passage (art. 19 LOSC) (Corfu Channel Case)
➢ Contiguous Zone (up to 24 seamiles): territory outside the territorial sea where coastal
states may exercise the control necessary to punish or prevent infringements of its customs,
fiscal, immigration or sanitary laws and regulation within its territory or territorial sea.

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Jurisdictional Zones continued

➢ Exclusive Economic Zone

➢ Coastal States can establish a 200-nautical-mile Exclusive Economic Zone (EEZ).
Coastal states have the right for the use of the living and non-living natural
resources, to use the EEZ and the continental shelf for other economic purposes
and the right to construct, authorize and regulate the construction of artificial
islands(*) and certain installations and structures
➢ in EEZs, all states have freedom of navigation and overflight, as well as freedom
to lay submarine cables and pipelines.

* South China Sea disputes: Creating artificial islands out of reefs and rocks,
however, does not under international law bestow the territorial seas or exclusive
economic zones that China seeks to claim (Opinion article by Michael Rubin: “To
respond to China’s artificial islands, it’s time to recognize a real one - | November 10,
2018)

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High Seas

Waters beyond territorial sea which is free for use by all (freedom of navigation, fishing,
overflight, the laying of cables etc….)
Principle of exclusivity of flag state jurisdiction
Exceptions to the flag state jurisdiction (LOSC art. 109 and further)
Piracy
Hot pursuit
Slave trade
Drugs trafficking
Unauthorised Broadcasting

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Islands

1958 Convention on the Territorial Sea (Art. 10) & 1982 Convention (Art. 121):
An island is a naturally formed area of land, surrounded by water, which is above
water at high tide.

Islands can generate a Territorial sea, Contiguous zone and EEZ or continental shelf.
But rocks which cannot sustain human habitation or economic life of their own shall
have no EEZ or continental shelf (Art. 121/3, 1982 UNCLOS).

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‘Rocks’

Art. 121 (3) LOSC: ‘Rocks which cannot sustain human

habitation or economic life of their own have no EEZ or
Continental Shelf’

While islands can claim the territorial sea and exclusive

economic zone, rocks only receive territorial sea recognition,

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Archipelagic State’s Jurisdiction

law of the sea

Art. 46,a 1982 Convention defines an archipelagic state
as “A state constituted wholly by one or more
archipelagos and may include other islands”.
An archipelagic state may draw ‘straight archipelagic
baselines’ joining the outermost points of the
outermost islands and drying reefs of the archipelago,
which would then serve as the relevant baselines for
other purposes.
All the waters within such baseline are ‘archipelagic
waters’ over which the state has sovereignty.

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Exceptions

Existing agreements, traditional fishing rights and existing submarine cables

must be respected.
Ships of all states shall enjoy the rights of ‘innocent passage’ through
‘archipelagic waters’.
All ships and aircraft are to enjoy a right of archipelagic sea lanes passage
through such lanes and air routes designated by the archipelagic state for
‘continuous and expeditious passage’.

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Straits: rights of transit

• applies generally to all straits connecting high seas or EEZs with other areas of high seas or
EEZs which are used for international navigation (Art. 37 LOSC)
• Ships shall:
• proceed without delay
• refrain from any force or threat of force against the coast state
• pass the strait in the normal mode of continuous and expeditious transit (Art. 39 LOSC)

• Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. People's
Republic of Albania), 1949.
• Right of innocent passage

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