Law of the Sea: Navigating BoundariesIdaho State Bar Int. Law Section

Anastasia Telesetsky

•Planet Ocean

• Hugo Grotius- Mare Liberum

• “My intention is to demonstrate briefly and clearly that the Dutch…have the right to sail to the East Indies…I shall base my argument on the unimpeachable axiom of the Law of Nations…Every nation is free to travel to every other nation and to trade with it.

•Before there was the Law of the Sea (1604-1605)

• Global shipping• 2nd Largest Exporter of

Containerized Cargo• 7,529,000 containers per year to Asia

• 1st Largest Importer of Containerized Cargo

• Container ships alone do about $4 trillion dollars worth of trade

•Beneficiaries of the Ocean trade

• Based on the adoption of Grotius’ ideas- Restrained sovereignty

• The Louis (2 Dodson 210) (1817) Sir William Scott• “All nations being equal, all have an equal right to the

uninterrupted use of the unappropriated parts of the ocean for their navigation. In places where no local authority exists, where the subjects of all states meet upon a footing of entire equality and independence, no one state, or any of its subjects, has a right to assume or exercise authority over the subjects of another.”

•Freedom of the Seas

• Spanish and Portuguese created a six mile custom limit

• Imperial Russia claimed a 12 mile zone for customs and fisheries

• 1945 US claimed sovereign rights and jurisdiction over the “continental shelf” (Truman Proclamation)

• 1952- Chile claimed 200 nm “patrimonial sea”

•Creeping Jurisdiction

RATIFIED BY UNITED STATES IN 19611) Convention on the

Territorial Sea and Contiguous Sea

2) Convention on the High Seas

3) Convention on the Continental Shelf

4) Convention on Fishing and Conservation of Living Resources of the High Sea

•Before there was the Law of the Sea (1958)

• Arctic Shelf

•Continental Shelf claims

• Preamble- UNCLOS is a cooperative effort to create “a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilisation of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.”

•Third United Nations Conference on the Law of the Sea (1974-1982)

•Constitution of the Oceans

• Baselines- boundary line that determines where a State’s maritime sovereignty and jurisdiction begins and ends

• Exception: Straight Baseline

• Special rules under LOS for drawing baselines around archipelagoes.

• Islands vs. Rocks

•Basepoints and baselines

• States have the rights to continuous and expeditious passage through territorial waters

• Aircraft must request overflight permission

• Submarines also have right but must travel on the surface

•Rights of Innocent Passage in Territorial Sea

• Shall not extend beyond 200 nautical miles from the baseline from which the breadth of the territorial sea is measured.

•Exclusive Economic Zones- Mare Clausum

• Sovereign rights to • 1) Exploit• 2) Conserve• 3) Manage

both living and non-living resources

• Coastal states have rights to create conservation measures but it is unclear whether they have right to prohibit transport of hazardous cargo

•EEZ

•“Provocative Move that Raises Tensions”

• Freedom of fishing• States are expected to require its flagged vessels to comply with conservation measures

• Site of potential sea-bed mining

• International Seabed Authority

•High Seas

•SeabedMining

•Status of Law of the Sea Convention

• Seabed Mining in the Area for the “benefit of mankind as a whole”

• Considered by some a “socialist redistribution of resources”

• Rhetoric: Acceding to the treaty “would expose the U.S. to lawsuits on virtually any maritime activity, such as alleged pollution of the marine environment from a land-based source or even through the atmosphere”

•Why hasn’t the US ratified?

• 1) Arctic interests• 2) Concerns over stability in South China Sea and East China Sea

• 3) Safety of our navy• Vulnerability to

surveillance and interdiction- US ships can theoretically be restricted to designated sea lanes

• 4) Ocean governance- 71% of the oceans remain high seas-

•Why should the US ratify?

•Ocean Governance- Who is captaining the ship?

•Future of Planet Ocean