The framework for an international law of the sea should have the authority or force of law and promote collective interest that drives state compliance. The process of authoritative decision flows from three distinct elements—interaction among the maritime states and oceans users; the rights of access, including the rights of access for the international community to oceans space and the rights of coastal states to claim jurisdiction over ocean space; and finally, determinations of decision-makers responding to these competing claims. The unfolding process of authoritative decision for a public order of the oceans is evident in maritime operational and diplomatic theater. In the contemporary era, this drama unfolds within the regimes reflected in the 1982 Convention. The point of departure for the regimes, and corresponding rights and duties in the United Nations Law of the Sea Convention (UNCLOS), is the baseline of the coastal state. This chapter discusses baselines, internal waters, territorial sea and contiguous zone, international straits, archipelagic waters, the exclusive economic zone, and the regimes and national security.
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Keywords: United Nations, international law, territorial waters, national security, 1982 Convention, UNCLOS
Throughout the Cold War, the Soviet Union would come to learn that all states, not just traditional maritime powers, have an interest in unimpeded access to the seas. The progression in Soviet thought was not immediate. Changes in Moscow’s thinking unfolded from the 1950s to the 1970s, as the U.S.S.R. shifted from a green-water coastal defense strategy to a blue-water fleet. By the time the Soviet Union had fully embraced naval power as a key element of its global ideological struggle, the nation was so politically and economically decrepit that it soon would collapse under its own weight.
The response of the Soviet Union to the massive advantage in Western naval power was the same as that selected by Imperial Germany to counter the Royal Navy, which was to build a blue-water fleet. All coastal states harbor a desire to constrain or restrict the offshore transit of foreign-flagged commercial and military vessels. Nations are motivated by the struggle for greater security and control in an anarchic world. A land power may try to match a maritime power by constructing a large fleet and becoming a maritime power, or it can choose to respond much more cheaply, albeit perhaps less effectively, by attempting to deny its opponents maritime access near its shores. The search for security leads nations to either build a fleet or construct shore defenses. The dilemma posed by these two polarities illuminates the desire to both exclude other users from the oceans, while at the same time seeking the “fullest possible access, either for itself or for others on its behalf, to all the inclusive uses of the ocean….”1Furthermore,
… [t]he net total of the inclusive uses available for sharing among all states is directly dependent … upon restriction of the exclusive claims to the minimum reasonably necessary to the protection of common interest. If all states asserted and were protected in extravagant, disproportionate, exclusive claims, there would be little, if any, net total of inclusive use for common enjoyment.2
This is where contemporary maritime strategy meets the international law of the sea. Exclusive marine claims assume a zero-sum diplomatic and economic game. This game produces military and political instability, and generates tension that can lead to conflict. While it follows that each state has an interest in preserving the greatest amount of the world’s ocean space for use by the international community, that interest in the global good may be somewhat(p.96)attenuated—overshadowed by the coastal state’s interest in exclusive control over waters adjacent to the shoreline. The resolve of the international community in vindicating the common interest in freedom of the seas is complicated by competing domestic pressures. Marshalling collective action to resist excessive claims, both within governments and among states, therefore is particularly difficult. The final chapter discusses some diplomatic strategies for meeting these challenges.
There have been four major multilateral oceans law initiatives: conferences in 1930, 1958, 1960, and 1973-1982. The first of these four conferences occurred during the interwar period. In 1924, a Committee of Experts appointed by the League of Nations was established to consider issues appropriate for codification at a multilateral conference of the peacetime international law of the sea. A preparatory commission developed terms of reference for negotiations in three areas—nationality, state responsibility, and territorial waters.3The Hague Codification Conference of 1930 recommended that the international community adopt the standard of a universal sovereign territorial sea of three miles in width, measured from the low-water mark running along the coast.4At the time, the three-mile territorial sea had widespread acceptance. The State Department reported that Canada, China, Great Britain, India, Japan, The Netherlands, South Africa, Greece, Ireland, and the United States unconditionally supported the three-mile limit. The efforts of the 1930 conference, however, never led to a draft convention. But the terms of reference for the meeting later were used as a point of departure for the first UN Conference on the Law of the Sea in 1958.
The 1930 meeting recognized a zone that may be considered a precursor to the contiguous zone, adjacent to and immediately beyond the territorial sea. In this area, states would exercise “administrative rights based on the ground of custom or of vital interests.”5States also would enjoy “rights of jurisdiction necessary for their protection” inside the new zone.6The recognition that coastal states should be able to exercise some measure of limited authority beyond the territorial sea was a function of the perennial search for coastal state safety and security.
The 1930 Conference also adopted a functional approach to the right of the coastal state in the territorial sea.7Different rules were applied to different(p.97)activities occurring in the same water space. This liberal or functional view of the oceans would become the most progressive principle of twentieth century oceans governance. The oceans were viewed as a flow resource, and they could be enjoyed by multiple users simultaneously within the context of a model that emphasized sharing and inclusion. The commission produced a Basis of Discussion to serve as the point of departure for a new Law of the Sea conference. The provision on innocent passage, however, only protected the right for merchant vessels rather than all ships. In a major victory for freedom of navigation for warships, however, this shortcoming later would be corrected, and ultimately included in the 1982 Convention.8But first, the United Nations would make two failed attempts at a restatement of the global order of the oceans.
UN Conferences I & II
Uniform rules were needed to provide a formula for standardizing offshore oceans claims and recognizing navigational rules in the areas claimed by coastal states. In 1949, the International Law Commission (ILC) of the UN took up the issue and began work in earnest on drafting a general law of the high seas. On December 6 of the same year, the UN General Assembly asked that the ILC include work on the territorial sea as well. The report of the Commission led to the convening of the First UN Conference on the Law of the Sea in 1958. More than 80 states participated in the conference, which produced four treaties—the Convention on the Territorial Sea and the Contiguous Zone, the High Seas Convention, the Convention on the Limits of the Continental Shelf, and the Convention on Fishing and Conservation of the Living Resources of the High Seas.
The instruments from the first UN Conference entered into force between 1962 and 1966, but they failed on several critical and contentious points. First, the breadth of the territorial sea was not resolved. This was a key point, making moot agreement on many other provisions. The extent of the continental shelf was set at the 200-meter isobath, so states that had only a narrow geologic continental shelf walked away dissatisfied. Finally, the thorny question of foreign fishing rights beyond the territorial sea remained unsettled. The importance of the fishing issue cannot be underestated. The commercial fishing sector exercises enormous political clout in many coastal states, and disagreements over foreign-flagged access to offshore fisheries raised the very real prospect of armed conflict. Coastal state sovereignty claims were not standardized, but ranged from between 3
