Chapter 4: International Law of the Sea

Introduction

International Law of the Sea (LoS) governs the use of the seas and oceans that cover almost three quarters of the Earth’s surface and constitute a natural means of transportation and communication. Since they have been used for fishing, transportation and military purposes from time immemorial, States have developed and observed numerous usages and customs for centuries. These long- established practices, coupled with contemporary rules and principles, amount to the LoS that bind States in their international relations concerning maritime issues. States do indeed have ever-expanding rights, duties and obligations concerning marine areas.

In addition to customary rules that prevailed for centuries, it would not be too wrong to suggest that the contemporary LoS is largely developed in the 20th century. Leaving aside the unsuccessful attempts of the inter-war period, major conventions and protocols are negotiated and finalized at the three well-known law of the sea conferences convened in 1956-1958, 1960 and 1973- 1982. The instruments ratified by the majority of States not only codified ancient/historical rules that are still of value/relevance, but also served to the progressive development of the field. As of 2019, basically there are five major conventions. The main conventions of the law of the sea: 1) The 1958 Convention on the High Seas (HSC) 2) The 1958 Convention on the Territorial Sea and Contiguous Zone (TSC) 3) The 1958 Convention on the Continental Shelf (CSC) 4) The 1958 Convention on Fishing and Conservation of Living Resources of the High Seas 5) The 1982 Convention on the Law of the Sea (UNCLOS)

Basic Concepts of the Law of the Sea

Generally speaking, the LoS in fact legally divides sea into different zones according to the needs, demands, means and capabilities of States, as well as the necessities of the law. Although each of them has a legal status of its own, all maritime zones are also subject to some common rules. Likewise, vehicles such as ships and artificial platforms or terrestrial areas such as the islands and atolls are also handled by the LoS. The LoS, on the other hand, embraces various concepts and notions which have a sort of crosssectional character. In other words, such concepts and notions are such fundamental for all LoS issues that one should first have a full grasp of them before going deep into the topic.

Sea and Ship

Sea, which is the very foundational concept of the LoS, has not been defined in any international instrument. Nevertheless, what generally referred to as seas are the masses of salty water naturally connected with each other via natural straits, and thus constitute a means of worldwide transportation and communication. Legally speaking, an ocean which is no more than a major body of water in between continents is also considered sea.

Another factor that plays a central role in defining sea is navigation. For the uninterrupted navigation of a ship that set sail from a port has always been vital for all those concerned. In fact this is the very reason that also made the definition of “ship” a crucial and even contentious topic of the LoS. Nevertheless, a universally recognized definition of ship is yet to be done. The notion employed by countless international instruments has in fact been understood and even defined in quite different ways and terms in national laws of States. Nonetheless, a brief look at domestic practices and the international scholarly literature suggests that self-propelled vehicles used or capable of being used as a means of transportation on water may well be defined and/or accepted as “ship”

Island

There is a general consensus regarding the definition of island. According to the definition of Article 10/1 of the 1958 KSBB, which was literally employed by the 1982 UNCLOS (Article 121/1), an island “is a naturally formed area of land, surrounded by water, which is above water at high tide”. Thus, being populated by inhabitants and/or being capable of effective occupation are not necessarily required. On the other hand, geographic formations exposed at low tide but submerged at high tide, artificial formations, man-made platforms and floating formations such as icebergs cannot be deemed as island. So, being a natural area of land surrounded by water, attached to the seabed and also above water at high tide can be regarded as islands.

Baselines

Baselines are the most crucial reference points in determining the extent of all maritime zones to be examined below. They establish from what points on the coast the outer limits of such zones are to be measured. There are two kinds of baselines: normal baselines and straight baselines. Under normal circumstances, the baseline “is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State”. But, in cases “where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity”, the coastal State may employ “the method of straight baselines joining” appropriate points it selected along the furthest seaward extent of the low-water line. Likewise, in cases of estuaries, “the baseline shall be a straight line across the mouth of the river between points on the low-water line of its banks”. A similar rule applies also to bays the coasts of which belong to a single State.

Archipelago

Archipelago is another notion that was legally introduced and defined eventually by the 1982 UNCLOS Article 46/2 puts that a group of closely interrelated islands that “form an intrinsic geographical, economic and political entity, or which historically have been regarded as such” form an archipelago. Accordingly, such areas do not only include parts of islands but also closely interrelated sea areas and other natural features. It must be firmly underlined that all terrestrial components of an archipelago must be islands.

Straits

Another basic notion of the LoS is “strait”. In fact, none of the UN conventions adopted a legal definition of straits. Nevertheless, this mainly geographic formation is ordinarily understood and described as narrow natural passages of water connecting two larger bodies of water. Being a natural formation is an important criterion, and hence a man-made canal cannot be considered as strait. A strait may well fall within the territorial seas of a coastal State, as well as of two or more coastal States. Likewise, it may also connect two high seas. Looking from the perspective of international law, the determining factor is the legal status to which a strait is subjected. For as is best seen in the case of “Turkish Straits” definition of the 1936 Montreux Convention, straits and even inland sea areas that are identified and delineated as “straits” by an international instrument would have an objective “international strait” status. Therefore, it is the international regulation accepted -among others- by the coastal State that counts. Nonetheless, it should also be underlined that an otherwise national strait placed under international status for navigational purposes still falls under the full jurisdiction of the coastal State in all matters that are not explicitly stipulated in the provisions of relevant international instruments.

Maritime Zones

Taking into account respective rights and duties given to (coastal) States, the sea is usually examined under three titles. The first one comprises maritime zones that are subject to sovereignty. These zones constitute the “sea (maritime) territory” of a coastal State and extend seawards as internal waters, the territorial sea and if/where available archipelagic waters. Second, maritime zones subject to sovereign rights basically comprises the contiguous zone, the exclusive economic zone (EEZ) and the continental shelf. Finally, the high seas and the international seabed area are the maritime zones beyond national jurisdiction.

Maritime Zones Under State Sovereignty: Sea (Maritime) Territory

Sea territory is the area of water that a coastal State might have under certain rules of the LoS. Needless to say, a State cannot solely be made up of sea territories. As the above-mentioned expression “the sea follows the land” mandates, only coastal States that possess land territories may legally have sea territories. This point is crucial not only with regard to the rights and obligations of States arising from the LoS. In cases of coastal States, the outer limit of its sea territories, namely that of its territorial seas, also constitutes the outer limit of its air territories, namely its national air space. In principle, unlike the maritime zones over which States enjoy only sovereign rights explicitly given to them by the LoS, the sovereignty of the coastal States over its sea territories is full and exclusive, and may only be explicitly limited by international law.

Internal Waters

Internal waters, also called interior or national waters, is defined by Article 5 of the 1958 TSC and Article 8 of the 1982 UNCLOS. Accordingly, internal waters are the “waters on the landward side of the baseline”. As such, they comprise ports, bays, estuaries and -particularly in case of straight baselines- the water areas enclosed. Internal waters are usually considered parts of the seas “appertaining to the land territory of the coastal state”. Therefore, in principle, they are subject to the full and exclusive sovereignty of the coastal State.

The Territorial Sea

The belt of sea adjacent to the coast that extends up to a certain limit and that “appertains to the territorial sovereignty of the coastal state and thus belongs to it automatically” is described as the territorial sea. Although it is now well- established that it is measured from the (straight) baselines, the breadth of the territorial sea has always been a controversial issue. The historical cannon-shot rule, apparently focusing on security concerns, defined the width according to the range of shore-based artillery. Although this evolved into a three nautical mile rule in the 19th century, the rapid development of technology has made such a distance almost meaningless in terms of ensuring the security of coastal States. Furthermore, States also wanted to enlarge their domain for other reasons such as fishing, customs and even exploitation of marine resources. On the other, as the territorial seas of coastal States would reduce the high seas open to all States, securing a consensus among States has not been an easy task.

Although internal waters and the territorial sea together constitute the sea territory of a coastal State, they have different legal regimes. Whereas other States do not have any general rights in internal waters, they enjoy some general rights in the territorial seas such as the right of innocent passage.

Maritime Zones Subject to Sovereign Rights

As noted earlier, States do have certain sovereign rights and duties in areas/zones that extent beyond internal waters and the territorial sea. These may be listed as the contiguous zone, exclusive economic zone (EEZ) and continental shelf, each of which are measured from the (straight) baseline, and yet do comprise areas beyond the outer limits of the territorial seas.

The Contiguous Zone

The contiguous zone is first introduced by the 1958 TSC and then confirmed and reinforced by the 1982 UNCLOS. It is basically defined as the maritime zone that is “contiguous to and seaward of the territorial sea”. If/Once declared, it equips a coastal State with certain rights, so that it may prevent and/or punish infringement of its laws and regulations concerning customs, fiscal, immigration or sanitary issues within its territory or territorial sea. The breadth of this zone “may not extend beyond 24 nautical miles from the baselines”. However, it should be noted that this zone actually and effectively comprises the zone lying seaward of the outer limit of the territorial sea.

The Exclusive Economic Zone (EEZ)

The exclusive economic zone (EEZ) is an area that extends up to 200 nm from the (straight) baseline that covers not only the body of water, but also the waters superjacent to the seabed, the seabed itself and its subsoil. As seen earlier, rocks that cannot sustain human habitation or economic life of their own cannot have EEZ either. It gives coastal States extensive rights that mainly include exploring, exploiting, conserving and managing living and non-living natural resources, as well as other activities such as the production of energy from the water, currents and winds. Coastal States also have “jurisdiction as provided for in the relevant provisions” of the 1982 UNCLOS with regard to “the establishment and use of artificial islands, installations and structures” as well marine scientific research and the protection and preservation of the marine environment (Article 56).

The Continental Shelf

The technological capacity developed in the early 20th century has shown that the immediate seabed adjacent to the coast is quite rich in natural resources and may well be exploited. The findings that the seabed and its subsoil might have been embodying extensive reserves of oil and gas attracted growing interest as demand for petrol increased steadily before and during World War II. This led to an idea that coastal State should claim the right to exploit offshore resources. Bearing in mind that the seabed actually consists of three sections, the said claim has come to the agenda solely with respect to the “continental shelf”. This geographic and geological expression refers to the adjacent coastal areas “extending from the lowwater line to the depth at which there is usually a marked increase of slope to greater depth. Besides, the “ledges that project from the continental land mass into the sea” are usually “covered with only a relatively shallow layer of water”. For this reason, it was thought that particularly the coastal area called “shelf” constitutes an extension of the territorial land mass of a State, the resources of which are also an extension into the sea of deposits lying within its territory.

Maritime Zones Beyond National Jurisdiction

In addition to zones subject to sovereignty or sovereign rights of coastal States, there are also marine areas that are equally open to the activities of all States. While the High Seas constitute res communis that can be used by any State in principle, the International Seabed Area is a common heritage of mankind, the resources of which cannot be appropriated by any State individually.

High Seas

All sea areas beyond the outer limits of the territorial seas of coastal States may well be defined as High Seas. It is also described as sea areas “characterized by the dominance of the principles of free use and the exclusivity of the flag State jurisdiction”. Actually, this approach of the 1958 HSC has not been adopted by the 1982 UNCLOS. Following the approach adopted in Article 86 of the 1982 UNCLOS, it must be concluded that the High Seas proper consists of all parts of the sea that are not included in the EEZs, the territorial seas, the internal waters or the archipelagic waters of a State. The High Seas constitute a res communis and open to all States. It includes the water column, its superjacent airspace (“international airspace”), seabed and subsoil. No State may claim sovereignty over any part of the high seas and “every State, whether coastal or land-locked, has the right to sail ships”. Although basic freedoms of navigation and overflight are well-known, all States also have freedom to lay submarine cables and pipelines and to construct artificial islands and other installations in the High Seas. Likewise, they also enjoy freedom of fishing and scientific research. All these freedoms are to be enjoyed and exercised with due regard for the interests of other States. Finally, it must be boldly underlined that the high seas are reserved for peaceful purposes.

The International Seabed Area

Another notion that should be examined together with the High Seas is the international seabed area. It must be underlined and clarified at the very outset that it would not be correct to hastily define the international seabed area as the seabed and subsoil of the High Seas. For, as demonstrated earlier, the sovereign rights of coastal States over the EEZ and the continental shelf entitle them to exploit the resources of the corresponding seabed and subsoil. That is why the 1982 UNCLOS, which (re-

)introduced these said zones, strictly defined that the “area” as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”. Therefore, as the national jurisdiction mentioned for these purposes extends to a distance of 200 nm from the (straight) baselines where the EEZ and the continental shelf end under normal circumstances, the international seabed area should be best defined as the area that consists of the seabed and the subsoil that are not subject to the sovereign rights of any State at all.

Dispute Settlement Mechanism of the 1982 UNCLOS

The 1982 UNCLOS introduces a detailed dispute settlement mechanism as well. This was basically a result of the complex set of rights given particularly to States with opposite or adjacent coasts. The availability of States that wanted to act unilaterally on one hand and that claimed that the validity of the delimitation is a matter of international law on the other hand has made international disputes unavoidable. Besides, other provisions regarding navigation, marine protection, exploiting the resources of the international seabed area, and so on may also be subject to disputes.

The mechanism brought basically requires States to try to resolve their disputes through usual diplomatic methods such as negotiating in good faith and reaching a fair and equitable agreement. In cases where a settlement cannot be reached at by peaceful means “of their own choice”, States Parties are apparently obliged to follow “compulsory procedures entailing binding decisions”. One of the parties may submit the dispute to a competent court or tribunal, such as the ICJ or the International Tribunal for the Law of the Sea established by the 1982 UNCLOS itself. However, as most States Parties have made reservations to relevant Articles, it may easily be concluded that there does not exist a general dispute settlement mechanism that binds all States alike.