International Law of the Sea

The main conventions of the law of the sea:
- The 1958 Convention on the High Seas
(HSC)
- The 1958 Convention on the Territorial Sea
and Contiguous Zone (TSC)
- The 1958 Convention on the Continental
Shelf (CSC)
- The 1958 Convention on Fishing and
Conservation of Living Resources of the High
Seas
- The 1982 Convention on the Law of the Sea
(UNCLOS)

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 problem how to define “ship” hit the headlines
with a very interesting incident in late 1990s.
China wanted to transfer the aircraft carrier
Varyag (Liaoning) it bought from Ukraine to its
mainland via the Turkish Straits. However, the
Montreux Convention that determines the legal
status of the Turkish Straits forbids the passage of
aircraft carriers.

According to the definition given in Article 8/2 of the CSC that was almost identically adopted by the 1982 UNCLOS (Article 29), warship means “a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline”. 

Each ship should have a name, a port of registry and a nationality, which is made known and identified by the flag it flies. These particularities are very critical in figuring out the applicable law in many instances.

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 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.

Baselines do not constitute or mark the outer limits of a State’s territory. For the territorial seas that extend beyond baselines are also a part of the sea territory. Baselines simply separate internal waters from other maritime zones each of which
have different legal regimes. The breadths of all other maritime zones including the territorial seas are also measured from the baselines.

Unless otherwise established by a specific international instrument, all ships and aircraft enjoy the right of transit passage through/over straits. This means “the freedom of navigation and overflight solely for the purpose of continuous and
expeditious transit of the strait” in accordance with relevant rules, principles and procedures.

Sea territory is the area of water that a coastal State might have under certain rules of the LoS.

They comprise ports, bays, estuaries and -particularly in case of straight baselines- the water areas enclosed.

There is no general right for foreign ships to enter the ports and internal waters of a coastal State. Nonetheless, it is well known that States do normally allow trade/merchant ships in line with the freedom of the seas principle. Besides, foreign ships in distress and seeking shelter would also be entitled to enter internal waters. Yet, internal waters may well be closed on the grounds that the vital interests of the coastal State so require. In any case, coastal States do have the right to exclude foreign warships from entering internal waters.

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.

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”.

This relatively new maritime zone was first put forward by Kenya that received considerable support from other “developing countries” in Africa and Asia. Their main motivation and aspiration was gaining “greater control over the economic resources off their coasts, particularly fish stocks, which in many cases were largely exploited by the
distant-water fleets of developed States”.

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”.

The growing concern regarding maritime navigations led States to establish the
International Maritime Organization in 1948 based in London.

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.

The right to hot pursuit entitles coastal States to exercise their jurisdiction on, and even arrest, foreign ships which violated their respective laws and regulations. This right is “designed to ensure that a vessel which has infringed the rules of a coastal state cannot escape punishment by fleeing to the high seas”.

US President Truman officially proclaimed in 1945 that “natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the United States” appertains to the United States and are therefore “subject to its jurisdiction and control”. This statement, which also ensured other States that the status of the waters above would not be affected, has gained a considerable support in a relatively short time.