International template for space law, the law of the sea holds principles needed to share the great expanse.
By Rebecca Schembri, Harvard University Extension School, May 1, 2021.
Over hundreds of years, maritime customary law has honored freedom of travel and trade on the Earth’s waters (Grotius). Forming the backbone of modern international covenant, mare liberum is the main concept for the United Nations Convention on the Law of the Sea, or UNCLOS. This constitution sets rules for coastal borders and keeps states from encroaching into the “global commons” of international waters (Rochester 94). Although the decades-old framework is considered “one of the most impressive accomplishments engineered by the international legal system,” arguments about territorial limits ensue between countries (96). As the world grows in technology, climate change, and population, the borders of the sea will be tried and tested for expansion and UNCLOS will face changes when nations, together, deem it necessary.
From its conception in 1967 to its inception in 1994, 27 years passed for the international community to institute the Law of the Sea Treaty. Signed by 167 states and the European Union, parties to UNCLOS agree that borders will begin at a state’s low tide baseline, protecting internal water rights while allowing for territorial, contiguous, and exclusive economic zones which vary up to 350 nautical miles out to sea, (United Nations). These areas provide for differing degrees of state jurisdiction along with freedom to harvest and protect its boundaries (Bederman 186). In cases where zones overlap, countries should share the territory equally and if not, must decide amongst themselves how to establishthe borders of delimitation (United Nations 15). The seas beyond this are free to all without local jurisdictions, except for authority on ships and in cases of hot pursuit (92, 111). To ensure that the oceans remain a “peaceful place for all,” UNCLOS provides for the International Seabed Authority (ISA), whose job is to protect marine environment of the high seas and give freedom to conduct scientific research, controlling mining and maritime licensing (88, 156).
Although international maritime law has already gone into effect and states agree that crimes such as piracy and slave trading are illegal (101), there is not total consensus on the proper treatment of the seas (Bederman 192). As expert and author J. Martin Rochester illustrates, parties either push for less regulation, for more territory, or just the opposite: for protection and sharing of the commons (94). He warns of maritime squabbles, writing: “40 percent of the world’s population depends for drinking water and irrigation on 215 river systems shared by at least two states; twelve of these are shared by at least five different states” (241). Finding a consensus is delicate—a task that requires international diplomacy. While richer, sea-faring nations seek freedom to act, smaller, less-developed nations take solace in UNCLOS, supporting regulations that grant them a portion of the benefits harvested by rich countries using ISA mining licenses (Rochester 92-93). Scholars debating the topic agree with both sides, insisting that although international law must be kept simple, Earth’s oceans and seas should not be absolutely free for consumption—the waters should be fairly shared, memorably disputing that “they are the common heritage of all mankind” (Pardo 14).
As technology advances and it is easier to exploit the sea, states may argue to expand their maritime borders with proposals for new conventions on maritime law. This “demands international cooperation,” since “the only limitation to exploitation will be that of technology,”—human advancement will be the catalyst for policy change, and when such growth occurs, international waters will become more desirable (Bederman 183; Pardo 10). Humanitarians dream about the sea as well, pleading with the world to preserve the oceans in sustainable harvesting of resources and to look at “the development of …technology for the cheap extraction of fresh water from sea-water which gives us the promise of making deserts bloom and the possibility of supplying the water needs of multiplying urban nations” (Pardo 3). UNCLOS has immense clout for weathering these different storms of thought, and has successful maritime history on its side: “We sometimes forget how close the world has come…to producing a single set of rules governing virtually every human activity on 70% of Earth’s surface” (Rochester 38). The Law of the Sea is 436 articles strong, designed by the world to protect its interests of peace, prosperity, and community (United Nations).
In the future, will changes in the climate and rising sea levels affect state boundaries, calling for UNCLOS reform? Will governments need to control the oceans to feed a booming human population waning in agriculture? Will metals from the ocean floor fuel a trillion-dollar mining industry? These, among others, are questions that UNCLOS will need to answer and tend to, ebbing and flowing together with the inevitable tides of the international community it serves. Meanwhile, it suffices to note that “…achieving [in UNCLOS] such a wide agreement over such a large set of issues spanning [most] of the globe through a process that was based on consensus voting and that allowed no reservations to be attached to the final draft,” is remarkable (Rochester 96). It is an accord that took a generation to conceive, another to implement, and will take many more before it is obsolete.
Bederman, David J. and Chimène I. Keitner. International Law Frameworks, 4th ed., Foundation Press. 2016, pp. 183-197.
Grotius, Hugo. Mare Liberum, Alex Struick, 2012.
Pardo, Arvid. United Nations General Assembly, 22nd Session, 1967.
Rochester, J. Martin. Between Peril and Promise: The Politics of International Law, Sage Publications, 2nd ed., 2012, pp. 90-96.
“United Nations Convention on the Law of the Sea”. UN.org.