Whose ocean is it? The history of the Law of the Sea

“Whose sea is it?” is a question we often ask ourselves and which just as often seems to have no answer. In reality, the Law of the Sea has been regulated since 1982 by the United Nations Convention on the Law of the Sea (UNCLOS). Let’s analyze together to better understand whether the sea belongs to everyone, no one or the State.

The Law of the Sea regulates the relationships between States regarding the uses of the sea. Due to the complexity, interdisciplinarity and evolution of the subject, the law of the sea is extremely dynamic and must be able to adapt to new challenges. For this reason, even today we can witness moments of negotiation to protect and regulate the use of marine resources. An example are the negotiations that are taking place in New York in August 2022 to adopt the Treaty of the High Seas.

Although we all have access to the sea, there is a division into different zones between complete freedom and complete sovereignty of the coastal State. Each zone is characterized by a limit defined based on nautical miles from the coast and is regulated by different obligations, laws and rules. As can be seen from the image below, the main zones are 5: Territorial Sea, Contiguous Zone (CZ), Exclusive Economic Zone (EEZ), High Seas and Area.

Territorial Sea

A strip of sea adjacent to the coasts of the State. The maximum limit of extension is 12 miles, measured from a baseline.

Contiguous Zone

It extends for another 12 nautical miles beyond the territorial sea. Here the coastal State exercises its authority to prevent or repress infringements of its national legislation.

Exclusive Economic Zone

If declared and approved, it extends up to 200 nautical miles from the coast. It serves as a transition zone between complete sovereignty and complete freedom.

High Seas

Here the principle of freedom of the sea applies as long as the interests of other States are respected.

Area

The seabed beyond the Exclusive Economic Zone, called the Area, and the mineral resources present there are considered Common Heritage of Humanity.

The History of the Law of the Sea

The first attempt to regulate the sovereignty of the waters occurred in 1493 through an act present in the papal bull “Intercetera” by Pope Alexander VI. In 1942, Christopher Columbus discovered America, thinking that the best way to reach India was to sail south, at the latitude of the Canary Islands. To return to Europe instead, it is preferable to sail at the latitude of the Azores. Upon his return, the Pope drew a line joining the North Pole to the South Pole at a distance of about 100 leagues (about 482 kilometers) from the Azores. All the emerged lands located west of the line belonged to Spain.

Portugal was not happy with the donation. In fact, Portugal is also a Christian state and is good at navigation, for this reason it tried to negotiate the decision. In Tordesillas, Spain, the “Treaty of Tordesillas” was signed, which traced the Raya meridian at 370 leagues (about 1,786 kilometers) away from the Cape Verde Islands. Portugal and Spain agreed that all the lands west of the line belonged to Spain and those to the east to Portugal. This is why Portuguese is still spoken in Brazil today.

In 1529, with the Treaty of Saragossa, the States began to acclaim ownership of the marine area as well, excluding the possibility for other States to navigate and carry out activities in that stretch of ocean without having an authorization issued by Portugal or Spain.

Other States, such as the Netherlands, Great Britain and France were not willing to accept the division of the waters only between Spain and Portugal. For them, the Pope was not a political authority, and therefore did not have the power to donate land and water to any nation.

Is the sea free or not?

In 1609, Hugo Grotius, a Dutch philosopher, theologian, lawyer and politician, in defense of his State’s right to navigate and trade at sea, wrote the essay “Mare liberum”, opening a new debate on the freedom of the sea. According to Grotius, it is impossible for States to impose their sovereignty over water. Water is a free element and no one can be prevented from using it.

In the same year, in England, King James promoted the containment of fishing activity in the coastal waters of Great Britain. This law prohibited all foreigners from fishing along the coasts of the British Isles to avoid overfishing. The limit of the law was given by the fact that it was not clear how far English waters extended.

The first division of the sea

For the first time, States could have sovereignty only near the coast, in territorial waters, beyond this limit there is the High Seas which, even today, is free. But how was the limit of territorial waters established?

The Dutch writer Cornelis van Bynkershoek wrote a book “Dominio mari dissertation” in 1702 on the limit between coastal waters and the high seas. The writer theorized the “rule of cannon shot”, identifying the border in the maximum distance of a cannon shot. The problem is that the ability of a cannon shot to cover an ever greater distance increases over time, so the measure can change based on the technological development of the individual State.

The Italian writer Ferdinando Galliani wrote a book “Diritto del mare in tempo di guerra” according to which, to avoid discussions, a fixed distance should be established, identified as 3 nautical miles (about 5.5 kilometers) from the coast. This theory was later used by major maritime powers such as the United States and Great Britain..

The Evolution of the Law of the Sea in 1900

1900 was the turning point in the Law of the Sea. In this century, all traditional uses of the sea and marine resources were addressed and regulated with international codification rules. In the past, the laws of the sea were not written and codified, but unwritten rules were in force and therefore difficult to control.

In 1930, the League of Nations attempted for the first time to codify the Laws of the Sea, but was not completely successful.
The second attempt was made by the United Nations in 1958 and 1960 with the Geneva Convention. Again, the legal framework developed was not completely successful, but the negotiation focused on some specific issues, for example the High Seas.
Only in 1973 did the United Nations manage to find a way of working and negotiating that gave the opportunity to work globally on the Convention on the Law of the Sea.

What is the United Nations Convention on the Law of the Sea?

In 1973, the United Nations finally succeeded in codifying the laws of the Law of the Sea through the United Nations Convention on the Law of the Sea (UNCLOS). The Convention was adopted in 1982 in Montego Bay, Jamaica.
The Convention required a number of amendments, so it entered into force in 1994 after being approved by all participants. Negotiations must be reopened to change the final text.

• The universality of the participants: the negotiations were open to all Member States of the United Nations, the Atomic Energy Agency, the International Code of Justice, intergovernmental organizations, national liberation movements and many other entities. It was a universal conference that guaranteed the legitimacy of the negotiation process.
• The duration of the negotiation was very long: it took 10 years to complete the work (1982) and 16 years of work by States, observers and actors of the international community to produce the Final Convention (1994).
• Adopt a convention that addresses all issues related to the sea. The Final Convention is a very comprehensive document, called the Constitution of the Ocean, whose geographical scope is enormous because the ocean covers more than 70% of the Earth’s surface.

How do you measure the coastline?

The baseline is the point where you start measuring the distance from the coast to establish the limit of the different zones. Article 5 of the Convention specifies the general rule for defining and drawing the baseline.

The baseline for measuring the vastness of the territorial sea is the low-water line along the coast, marked on all nautical charts officially recognized by the coastal State. But there are variations based on the geographical configuration of the coastline, historical or economic issues.

Some examples where exceptions to the general rule apply are:

• where the coastline is deeply indented, incised and has a fringe of islands along the coast in its immediate vicinity. In this case the baselines follow the outermost points of the coast. For example in countries such as Norway and Croatia.
• historical bays. An example is the Gulf of Taranto, considered part of Italian territorial waters;
• very indented river deltas, such as in Bangladesh and Myanmar;
• polar waters. There are ice floes that break away from the coast and therefore the coastline can change;
• archipelagic states (States composed of many islands).

From the baseline, the distance to all other areas defined by the Convention begins to be measured.

Bibliography:

• https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
• https://www.geopolitica.info/mare-relazioni-internazionali-parte3/
• https://www.imo.org/en/OurWork/Legal/Pages/UnitedNationsConventionOnTheLawOfTheSea.aspx