POLISCI MIDTERM CHAPTER 5

Mare Clausum “closed seas”

Principle that a state can claim exclusive jurisdiction over the sea

• Portugal and Spain (1900s)

Mare Liberum “open seas”

Principle that no state can claim jurisdiction over the sea

• Sea is a common good

High seas

Water in which no state has jurisdiction

Principle: Freedom of the high seas

• Freedom of navigation

• Freedom of overflight

• Freedom to lay submarine cables and pipelines

• Freedom to construct artificial islands and other installations permitted under international law

• Freedom of fishing

• Freedom of scientific research

Flag state

State in which a ship is registered

• Example: Registering ships in panama and liberia for explicit tax purposes

Diplomatic protection

Assertion of legal claims by a state on behalf of private individuals (including ships)

Policy Issue: “Flag of Convenience”

• Pejorative term

• Registration unconnected to ownership or operations 

  • Avoid high taxes

  • Avoid environmental regulations

• Hypothetical: US oil firm ships oil around south America, but it is registered in Sierra Leone

Principle: Regulating Piracy and Slavery 

Come from peremptory norms - no derogation is permitted 

Universal Jurisdiction

Use of a states domestic law and institutions to regulate behavior that occurs outside of its domestic territory, does not involve its nationals, and does not have systematic or important effects on itself

UNCLOS says 

All states can board a ship if “there is a reasonable ground for suspecting” piracy or slavery 

Who is a pirate?

Acts for “private ends” - usually for private reasons

Common heritage of mankind

Principle that certain natural resources belong to mankind as a whole and should be protected from exploitation

Possible Peremptory Norms: Deep seabed resources as the “common heritage of mankind”

Deep sea bed issues 

• Under the rights category 

• Medium support 

Inter-generational equity

The claim that current generations of humans should leave ample resources for future generations

• We want our kids kids kids to enjoy the sea!

High Seas Treaty

• Requires treaty members conduct environmental impact assessments

• Includes provisions for strategic environmental assessments

• Capacity-building to help states implement the agreement

Marine genetic resources (MGRS) 

Balances the freedom of marine scientific research with fair and equitable sharing of benefits 

Area-based management tools (ABMTs)

Key for helping to restore biodiversity 

The “International Community” at work

High seas treaty tracker

• Race for ratification is on

Baseline

Boundary between a state’s territory and international waters

Internal waters 

Water bodies that lie within a states baseline 

What happens as you go down the line from territorial sea, EEZ, and then high seas

• Power rights/responsibilities decrease as you go down the line

How many N.M. from baseline to high seas

200 N.M.

High Seas Rule (Navigation of Foreign Ships)

Free

EEZ Rule (Navigation of Foreign Ships)

Free, subject to legitimate regulations (natural resources, artificial structures)

Territorial Seas rule (Navigation of Foreign Ships)

Can’t do anything other than sail through “continuous, expeditious”

States can restrict as it likes, but … Right to innocent passage

Right to innocent passage

Right of foreign ships to travel through a territorial sea, subject to specified constraints

High Seas Rule (Regulation by Coastal State)

None!

EEZ Rule (Regulation by Coastal State)

Limited authority:

• Environmental regulation

• Economic regulation of natural resources

• Can build artificial structures

Territorial Seas rule (Regulation by Coastal State)

Complete authority, subject to innocent passage and flag state jurisdiction

Fishing disputes

• Coastal states have the right to natural resources in EEZs and territorial seas

• They often negotiate treaties that give access to other states for political/economic reasons

• Giving fishing rights to other countries

High Seas Rule (Law enforcement by coastal state)

None! Except piracy and slavery

EEZ Rule (Law enforcement by coastal state)

Enforcement of:

• Environmental regulation

• Economic regulation of natural resources 

• Can build artificial structures 

Contiguous zone Rule (Law enforcement by coastal state)

Enforcement rights for immigration, smuggling, tax evasion

Territorial seas Rule (Law enforcement by coastal state)

Complete authority, subject to innocent passage and flag state jurisdiction

Hot pursuit

A state preserves its law enforcement authority if it follows certain procedures while pursuing crime suspects at sea (EEZ to High seas)

Continental shelf 

0 to 200 N.M.

• states can do what they want

Common Seabed

200 N.M and beyond

• No state gets to claim rights to these things

Delimitation

• Allocation of legal rights when multiple states claim jurisdiction over the same area

  • China + South China Sea

Equidistance Method

Geographic technique for drawing a line - that is equally distant from each state

• From baseline

• Halfway between their coast

Problem with Equidistance Method

• Not all coastlines are similar

• North sea case

  • Decided at the ICJ

  • Denmark and the Netherlands wanted Equidistance Method, Germany wanted equitable principles

  • Claims of CIL vs Treaty Law

    • Is the use of equidistance method CIL? Germany says no

Circumstances that affect equity 

Concave coastlines

Length of shore lines

Location of valuable resources  

“Delimitation must be the object of agreement between the states concerned, and that such agreement must be arrived at in accordance with equitable principles”

• North Sea majority opinion 

Modern Delimitation Procedures 

Start with equidistance method 

• Practical starting point 

Adjust based on special circumstances

• Romania vs Ukraine