The law of the sea is part of international law. Although international law primarily affects nations, it does filter down to the nationals of a country with particular significance for those involved in administrative positions in government and those owning and operating commercial ships.
Laws in relation to oceans and seas face very different challenges in relation to laws made over land. The different challenges can be addressed by the following questions confronting a law maker attempting to draft laws applying to ocean and sea areas:
> How does Australian law apply to areas of ocean and sea?
> More specifically, how does Australian law apply to areas of ocean and sea that Australia shares with another nation (e.g. the very narrow Torres Strait between Australia and Papua New Guinea)?
> Can Australia pass valid laws governing the ships of the world that visit Australian shores?
> Equally, can other nations pass valid laws governing Australian ships visiting the shores of that other nation?
The answers to those questions are largely found in international law, in particular, the convention that we will examine in detail; being the United Nations Convention on the Law of the Sea, 1982. The full formal details of the convention are:
United Nations 2010, United Nations Convention on the Law of the Sea, 1982, United Nations Division for Ocean Affairs and the Law of the Sea,
I will refer to this critical convention as ‘UNCLOS’. You may see it referred to in readings as ‘LOSC’, ‘UNCLOS III’ or (unhappily) ‘LOST’. Feel free to go to the webpage for the convention and navigate through the contents. UNCLOS has been referred to as no less than a ‘Constitution for the Seas’ – a weighty title! UNCLOS is an ambitious and largely very successful international convention that provides the foundation for regular trade, transport and commerce on the world’s oceans. The main thrust of this module is to understand key concepts – the building blocks that allow the convention to do its very important work.
The law of the sea, as embodied in various treaties, customary international law, instruments of commercial maritime law and especially as codified in the Law of the Sea Convention has grown upon roots extending back to the practice of Phoenician and Grecian seafarers of over 2,000 years ago.
Since 1982 most Parts of the Convention have been applied reasonably consistently by States. Many provisions have been implemented or applied in legislation by States, in new Conventions adopted by international conferences, in decisions by international courts and in guidelines adopted by international organisations.
UNCLOS is ambitious convention dealing as it does with the shared use of the oceans and seas of the world. It is founded upon balance, particularly the balance between coastal states (typically, proponents of the ability to ‘claim’ neighbouring seas) and states seeking access to oceans and seas (typically, proponents of the oceans being open and being the ‘common heritage of mankind’). The law of the sea is therefore a compromise, a balance struck whereby coastal nations are given the ability to claim substantial maritime jurisdictional zones, whilst at the same time allowing for innocent use of those zones by other states (and their flagged vessels).
Two short and very important examples of the application of international law under UNCLOS now follow. As one example, individuals of a nation cannot fish anywhere they wish. They can be arrested in the coastal waters of a foreign country for illegal fishing or find that their ships are denied passage through the waters of archipelagos. In the first instance their apprehension and prosecution may involve national law. The offender may be prosecuted in the national courts of the country that alleges a breach of its laws. If the issue remains unresolved, it may be taken up at the international level by the governments concerned.
Another example of the operation of UNCLOS is the fact that ships are regarded as having the right to navigate on sea routes close to coastal states. This is the right of innocent passage. However, the law of the sea gives the coastal states the right to make rules relating to such matters as pollution, customs and safety in their territorial waters. If a ship breaches these rules, the coastal state has the right to arrest and/or fine the vessel. The coastal state may also have the right of engaging in ‘hot pursuit’ of the vessel.
The law of the sea is now largely contained in an extensive international convention but it has very deep roots in customary international law…………………………………………………