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Law of the Sea and International Environmental Law

15 important questions on Law of the Sea and International Environmental Law

What is the history of the law of the sea?

The law of the sea has historically always accommodated competing interests. The interest of states who wish to maintain sovereignty of the waters of their coasts, and then the interest of states which engage in trade and navigation on the high seas and wish that freedom is respected. So, as a major trading power historically, the Netherlands has been part of that latter group. In 1609 Hugo Grotius published a book in which he discussed the legal basis of the high seas.

What are the sources of the Law of the Sea?

As for the sources of law here, this branch of law goes back many centuries, which means in part that we’re dealing with a lot of customary international law. Much of this custom law has been codified, like the four Geneva Conventions. But, because the GC left open a number of important issues, in 1982 the UN Convention on the Law of the Sea (UNCLOS) was established.

Why did it take so long to establish the UN Convention on the Law of the Sea (1982)?

The negotiations for this treaty lasted a long time because it is 1) a very long treaty and 2) there were a lot of controversial issues which had to be worked out. The treaty eventually came into force in 1994 and has 168 state parties.

UNCLOS is a package deal. What does this mean?

UNCLOS is a package deal: it attempts to balance competing interests of state parties, but this also means that states couldn’t enter reservations upon signing the treaty. Even though not all states are a party to this treaty, this is not of high significance because much of the treaty represents customary international law.

What are a few fundamental principles/rules about the law of the sea?

The land dominates the sea (which means that the shape of a state’s coast is determinative for the extent of its maritime zone)
States exercise the greatest degree of jurisdictional competence of the zones that lie closest to the coast.
The farther we go towards the sea, the coast state has less jurisdiction.
States have full jurisdiction over so-called internal waters (lakes, rivers, etc.)

There is a fundamental distinction between zones that lie within the jurisdiction of a coastal state and zones which lie beyond the jurisdiction of all states:

Zones that lie within the jurisdiction are; the territorial sea, internal waters, the contiguous zone, the exclusive economic zone and the continental shelf. (and archipelagic waters and international straits, but we don’t discuss those in this course).

Baselines distinguish where the coast ends and the sea begins. Baselines are critical, the boundary matters because the farther towards sea the baseline is, the farther seawards the maritime zone extends. The basic rule is set out in ...

in art. 5 UNCLOS, which says that the baseline refers to the low water line along the coast. This means that the water ends at low tide. This is important, because waters that are on the landwards side of the baseline, are internal waters, whereas the waters on the seawards side of the baseline are part of the territorial sea. This becomes complicated in states with messy coastlines. The general rule on baselines is difficult to apply in these cases. In these cases, straight lines are drawn from appropriate points on the coast (art. 7(1)) UNCLOS).

What is meant by the Territorial sea?

(Falls on the seaward side of the baseline)

(The term ‘sea’ is a bit misleading here; the territorial sea also encompasses the airspace above the water, the sea and the subsoil below it)

Where does the sovereignty over the territorial sea flow from?

Sovereignty over the territorial sea flows automatically from a state’s sovereignty over its land territory.
A state has to officially declare what they consider to be their territorial sea.

Breadth = 12 nautical miles (art. 3 UNCLOS)

Exclusive right of natural resources.

What is meant by the Exclusive Economic Zone and what are some other things about this?

(The EEZ overlaps with the contiguous zone)

With the term economic, we refer to the exploitation of (non)living national resources: fish, pearls, oils & gas, or other activities such as generating energy from water. (art. 56 UNCLOS).

The maximum breadth of this zone is 200 nautical miles measured from the baseline.

What is meant by the Continental Shelf and what are some other things about this?

The term continental shelf refers to the seabed and subsoil that are beyond the territorial sea.

Important: the right to explore and exploit within the continental shelf is exclusive to the coastal state. If the coastal state decides not to exploit gas in its continental shelf, no other state may do so.

In 1945, Truman declared that the national resources on seabed/subsoil of continental shelf belonged to the USA → many states followed with similar statement. In 1958, this rule was codified in art. 77 GC.

Two theories about where continental shelf ends:

Geological method: art. 76(1)) UNCLOS: prolongation of the land territory, ends when the outer margin ends
Distance method; 200 nautical miles from the baseline

What is meant by the High Seas and what are some other things about this?

Refers to seas which are in the jurisdiction of no state (art. 86 UNCLOS).

Freedom of the high seas is a fundamental concept, which entails that there is freedom of navigation, freedom of overflight and the possibility to lay submarine cables and pipelines, to construct artificial islands, to fish and to conduct scientific research (art. 87(1)), see for further requirements 88 and 87(2).

What is are the exceptions to the exclusive flag jurisdiction?

Stateless vessels:

Despite the requirement that vessels have to have a flag, they are stateless vessels. Any state can exercise jurisdiction over stateless vessels.

2. Piracy:

(UNCLOS art. 100-107 and 110); any state can exercise jurisdiction when there is a case of piracy
See the legal framework further in this summary

3. Hot Pursuit:

UNCLOS art. 111: The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State.
The Arctic Sunrise Arbitration (The Netherlands v Russia)

What is the legal framework of piracy?

UNCLOS arts. 100-107, 110
→ Definition of piracy (UNCLOS art. 101)

Illegal act of violence or detention, or an act of depredation
Committed for private ends by the crew of a private ship;
Directed against another ship on the high seas or outside of the jurisdiction of any state (see also UNCLOS art. 58(2))

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HC - Public International Law

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Law of the Sea and International Environmental Law

15 important questions on Law of the Sea and International Environmental Law

What is the history of the law of the sea?

What are the sources of the Law of the Sea?

Why did it take so long to establish the UN Convention on the Law of the Sea (1982)?

UNCLOS is a package deal. What does this mean?

What are a few fundamental principles/rules about the law of the sea?

There is a fundamental distinction between zones that lie within the jurisdiction of a coastal state and zones which lie beyond the jurisdiction of all states:

Baselines distinguish where the coast ends and the sea begins. Baselines are critical, the boundary matters because the farther towards sea the baseline is, the farther seawards the maritime zone extends. The basic rule is set out in ...

What is meant by the Territorial sea?

Where does the sovereignty over the territorial sea flow from?

What is meant by the Exclusive Economic Zone and what are some other things about this?

What is meant by the Continental Shelf and what are some other things about this?

Two theories about where continental shelf ends:

What is meant by the High Seas and what are some other things about this?

What is are the exceptions to the exclusive flag jurisdiction?

What is the legal framework of piracy?

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