Navigating Laws At High Seas

The high seas are not lawless. According to international law, a maritime country's authority extends outward from its shoreline. The United Nations Convention on the Law of the Sea, which took place in Montego Bay, Jamaica, in 1982, was largely successful, with more than 160 countries signing the agreement by 2017. The law of the sea stipulates that maritime countries control their territorial waters from the shore out to a distance of 12 miles (19.3 km), the 12-mile limit. Within this zone, all laws of that country apply. Maritime countries are also entitled to an exclusive economic zone (EEZ) made up of the water column and seabed out to a distance of 200 miles (about 322 km). The high seas refer to international marine waters outside the jurisdiction of any country and begin 200 nautical miles from the coastline.

Freedom of navigation

The concept of freedom of navigation evolved as maritime trade, travel, and conquest by European naval forces expanded beyond European waterways. Two opposing schools of thought emerged in the 17th century. The first, championed by John Selden, promoted the idea of mare clausum, which allowed states to limit or close off seas or maritime areas to foreign ships, similar to how land areas are owned by states. This view was supported by major naval and colonial powers such as Spain and Portugal, who sought to consolidate control over their empires and access to trade routes.

On the other hand, the Dutch Republic, a dominant trade carrier, advocated for mare liberum (free seas), which held that even enemy goods, except contraband, were inviolable in neutral vessels. Hugo Grotius, a Dutch jurist, coined this concept, arguing for a shift in maritime norms that would make the high seas free for transport and shipping, regardless of the ship's country of origin. This represented not only a legal change but also a fundamental shift in perceiving the maritime realm as a shared resource rather than something to be owned.

Over time, as the naval powers of Spain and Portugal weakened and international trade increased, Grotius' mare liberum concept gained acceptance, eventually becoming part of international law through bilateral treaties. Today, freedom of navigation is recognised as a fundamental principle in international law, enshrined in the UNCLOS, which states that "the high seas are open to all states, whether coastal or land-locked."

The UNCLOS introduced several legal concepts that facilitate freedom of navigation within and outside the maritime jurisdictions of countries. These include the right of innocent passage, right of transit passage, right of archipelagic sea lanes passage, and freedom of the high seas. The innocent passage allows ships to travel in other countries' territorial seas as long as it does not harm the peace, good order, or security of the coastal state. The transit passage refers to the right to pass through international straits connecting different parts of the high seas or exclusive economic zones (EEZs). Archipelagic sea lanes passage allows archipelagic states to provide sea lanes and air routes through their waters, ensuring freedom of navigation for ships.

Despite the broad acceptance of freedom of navigation, there are still differing interpretations and unlawful restrictions imposed by some coastal states. For example, some countries, like China, require prior authorisation for foreign warships to enter their national waters. The United States, through its Freedom of Navigation Program, regularly challenges these excessive maritime claims by conducting military operations to reinforce freedom of navigation in practice.

Exclusive economic zones

The concept of EEZs was introduced to address potential conflicts between nations over offshore activities like fishing and energy production. EEZs grant coastal states exclusive rights to manage and exploit the natural resources within their designated zone, including both living resources like fish, and non-living resources like oil and natural gas. Additionally, states have the right to generate energy from waves, currents, and wind within their EEZ.

It's important to note that while a coastal state has exclusive rights to the natural resources within its EEZ, it cannot prevent foreign vessels from navigating or flying over these waters. This distinction between resource rights and navigation freedom is a common source of confusion among policymakers.

The establishment of EEZs has significantly impacted the control and management of maritime affairs. EEZs have been a source of international disputes, particularly when there are overlapping claims or disagreements over the interpretation of coastal states' rights. The United States, for example, has the second-largest EEZ in the world, covering 11,351,000 square kilometres, while France possesses the largest EEZ, covering approximately 7% of the Earth's total EEZ area.

The determination of EEZ boundaries and resolving disputes related to overlapping claims are complex issues that often require international arbitration or agreements between the involved nations.

Maritime law

The freedom of the high seas is a key principle of maritime law, meaning that all countries have the right to use the oceans for navigation, fishing, and other activities without interference from others. This principle was first proposed by the Dutch jurist Hugo Grotius in 1609 and became an accepted principle of international law in the 19th century.

The United Nations Convention on the Law of the Sea, adopted in 1982, recognizes that the ocean is the "common heritage of humankind" and that no state shall claim or exercise sovereignty over any part of it or its resources. The convention also establishes that maritime countries have control over their territorial waters, extending 12 miles (19.3 km) from the shore, and an exclusive economic zone (EEZ) of up to 200 nautical miles (about 322 km) from their coastline. Within the EEZ, countries have special rights to explore and exploit natural resources, while outside these zones, vessels and countries are subject to maritime law.

The UN High Seas Treaty, an agreement reached in March 2023, aims to provide better protection for marine life and more sustainable management of the ocean's resources. It allows for the creation of marine protected areas and requires countries to conduct Environmental Impact Assessments on planned marine activities such as deep-sea mining.

While maritime law governs activities on the high seas, crimes committed in these areas fall under the laws of the country owning the vessel or structure on which the crime was committed. This can create jurisdictional complexities, especially when vessels are in motion. In the case of international crimes such as piracy, human trafficking, and crimes against humanity, any country or international organization can theoretically claim authority using the concept of universal jurisdiction.

International waters

The high seas are considered to be a 'global commons', which means they belong to everyone and no one at the same time. This principle, known as the freedom of the high seas, gives all countries the right to use the oceans for navigation, fishing, and other activities without interference from others.

The United Nations Convention on the Law of the Sea, adopted in 1982, recognises that the ocean is the 'common heritage of humankind'. It also states that no country can 'claim or exercise sovereignty or sovereign rights' over any part of the high seas or its resources. This convention established that countries have the right to claim an exclusive economic zone (EEZ) up to 200 nautical miles from their coastline. Within these zones, countries have the right to explore and exploit natural resources such as fish, oil, and gas.

Outside of these zones, in international waters, vessels and countries are subject to maritime law. This means that vessels and aircraft from any country are free to pass through, fly over, fish, and extract mineral resources. With respect to crimes committed in these areas, the laws of the country owning the vessel or structure upon which the crime was committed hold sway.

In the case of international crimes such as piracy, human trafficking, and crimes against humanity, any country or international organisation can theoretically claim authority over the matter using the concept of universal jurisdiction. This concept justifies the right of a party to thwart criminal activity, bring charges against assailants, and try them in their own national or international courts. However, as the laws of individual countries and international courts are not recognised by all countries, there is often no fully accepted referee.

Crimes and jurisdiction

The high seas are not lawless, but they are outside the jurisdiction of any one country. Maritime law, a system of international agreements and conventions, governs activities on the high seas. This includes rules on navigation, shipping, seafarer welfare, piracy, fishing, marine pollution, and conservation.

The United Nations Convention on the Law of the Sea, adopted in 1982, establishes that the high seas begin 200 nautical miles from the coastline. It also recognises the ocean as the "common heritage of humankind", and that no country can "claim or exercise sovereignty or sovereign rights" over any part of it or its resources.

When it comes to crimes committed on the high seas, the laws of the country that owns the vessel or structure where the crime took place are usually applied. This can become complicated when vessels are in motion, as in the case of a murder on a cruise ship that crosses into different territorial waters.

In the case of international crimes such as piracy, human trafficking, and crimes against humanity, any country or international organisation can claim authority using the concept of universal jurisdiction. This concept justifies taking action to thwart criminal activity, bringing charges, and trying assailants in national or international courts. However, due to varying laws and recognition across countries, there may not be a fully accepted referee in these cases.

In the United States, federal laws generally apply to US-flagged ships on the high seas. State laws may have extraterritoriality in certain situations, such as when laws explicitly or inherently allow for extraterritorial effect. For criminal law, a state typically has jurisdiction over a crime if it was committed within that state or if the crime caused injury or damage within the state.

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