International Waters: Navigating Complex Legal Waters

International waters, or the high seas, are not lawless. While no single nation has jurisdiction over these waters, several global agreements and UNCLOS (United Nations Convention on the Law of the Sea) define which maritime laws apply. UNCLOS was signed in 1982 and stipulates that maritime countries control their territorial waters from the shore out to 12 miles, and an exclusive economic zone (EEZ) out to 200 miles. Beyond these zones, vessels are subject to the laws of the country in which they are registered, and all countries and vessels are subject to maritime law.

Maritime law and international waters

The United Nations Convention on the Law of the Sea (UNCLOS), signed in 1982, provides a crucial framework for maritime law in international waters. It recognises exclusive economic zones (EEZs) extending 200 nautical miles from the coastlines of coastal states, within which they have special rights to explore and exploit natural resources. Beyond these zones, maritime law governs the activities of vessels and countries on the high seas.

Maritime law encompasses a range of issues, including navigation, shipping, seafarer welfare, piracy, fishing, marine pollution, and conservation. The principle of "freedom of the high seas" guarantees all countries the right to use the oceans for navigation, fishing, and other activities without interference. However, this freedom comes with responsibilities, as outlined in the UNCLOS, which recognises the ocean as the "common heritage of humankind."

While no single nation has sovereignty over international waters, ships sailing in these waters are generally under the jurisdiction of their flag state. In cases of certain criminal acts, such as piracy, any nation can exercise jurisdiction under the doctrine of universal jurisdiction. Additionally, international agreements like the MARPOL Convention address environmental concerns, allowing port states to exercise extraterritorial jurisdiction over foreign ships on the high seas that violate international environmental rules.

The enforcement of maritime law in international waters is a complex endeavour, involving coordination between multiple nations and international organisations. While the UNCLOS provides a foundational framework, ongoing efforts, such as the UN High Seas Treaty, aim to further strengthen the protection and sustainable management of ocean resources.

Navigable waters and jurisdiction

Navigable waters can be broken down into several different jurisdictional areas. These areas are subject to maritime law, which is a system of rules, international agreements, and conventions that govern activities at sea.

Internal Waters

Internal waters refer to ship ports, rivers, bays, lakes, and streams that are found within the boundaries of a country. The laws of that country apply to any vessel, regardless of where it is registered, while navigating these waters. For instance, when a ship is docked in the Port of New York, all New York and U.S. laws apply to the vessel, its crew, and its passengers.

Territorial Waters

Territorial waters extend twelve miles from a country's coast. All maritime laws of that nation apply within this zone, regardless of a ship's registry. This means that if a maritime worker is injured onboard, they can seek compensation for their injuries under the applicable laws of that country.

Contiguous Zone Surface Waters

These waters extend from twelve to twenty-four miles off a country's coast. In this zone, a country has limited jurisdiction. These laws can be applied to a vessel, its crew, and any passengers on board, but they only apply to the surface waters, not underground waters.

Continental Shelf Underground Waters

These laws apply to the land on the bottom of the seas that extend out from a country. The underground waters and land are protected under a nation's laws, and these are the same as the laws used for territorial waters.

Exclusive Economic Zone (EEZ) Waters

A country has specific rights over the research, exploration, and acquisition of marine and natural resources, like oil, within this zone. The EEZ extends 200 miles from the coastline of the country, although the surface waters beyond the Contiguous Zone are considered international waters.

International Waters

In international waters, no nation holds sovereignty over the seas. Instead, the laws of the country where the ship is registered apply. For example, if a ship is registered in the United Kingdom, then UK laws apply onboard that ship.

Jurisdiction

International law permits a state to exercise varying degrees of jurisdiction over its flagged vessels, vessels within its ports, and vessels within its maritime zones. This includes internal waters, territorial sea, contiguous zone, and exclusive economic zone. The exercise of jurisdiction in each instance is recognised under the Law of the Sea Convention (LOSC).

Flag State Jurisdiction allows a state to exercise jurisdiction over a vessel that is registered with the state and flying its flag. This is based on the internationally recognised principle that a state may regulate the conduct of its nationals, even when they are acting outside of the state's territory.

Port State Jurisdiction allows a state to exercise jurisdiction over foreign-flagged merchant vessels within its ports and internal waters. This is derived from the principle of territoriality, which gives a state exclusive authority to regulate persons within its borders.

Additionally, the right of innocent passage allows foreign vessels to transit through the territorial sea of a coastal state unhindered, provided their passage does not prejudice the "peace, good order, or security" of the coastal state.

International crime and universal jurisdiction

International crimes, such as piracy, human trafficking, and crimes against humanity, can be prosecuted by any country or international organisation under the concept of universal jurisdiction. This principle holds that certain offences are so heinous that they threaten the international community as a whole and are beyond the scope of any single nation's laws.

Universal jurisdiction is a legal principle that allows states or international organisations to prosecute individuals for serious crimes, such as genocide, war crimes, and crimes against humanity, regardless of where the crime was committed and irrespective of the accused's nationality or residence. This principle is based on the notion that the fight against impunity is borderless, and it has become an important principle of international law since World War II.

National courts can exercise universal jurisdiction when their state has adopted legislation recognising relevant crimes and authorising their prosecution. This national legislation is sometimes mandated by international agreements, such as the Convention Against Torture and the Inter-American Convention to Prevent and Punish Torture, which require states to adopt the necessary laws to prosecute or extradite individuals accused of torture within their territorial jurisdiction.

The United Nations Convention on the Law of the Sea (UNCLOS) is another example of an international agreement that extends laws to international waters. While no one country has legal jurisdiction over international waters, UNCLOS prescribes how offences are handled in terms of which nation's laws would apply.

The application of universal jurisdiction varies around the world, depending on the domestic legal framework and the facts of each case. Some states, such as New Zealand and Canada, have incorporated universal jurisdiction into their domestic laws, empowering their national courts to investigate and prosecute individuals suspected of international crimes regardless of where the crime was committed or the nationality of the suspect or victim.

Universal jurisdiction has been applied in several notable cases, including Israel's prosecution of Adolf Eichmann in 1961, the trials of Rwandan genocide perpetrators, and the prosecution of former Chilean dictator Augusto Pinochet. The establishment of the International Criminal Court (ICC) further strengthened this concept, providing a tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression.

However, the use of universal jurisdiction remains controversial. Critics argue that it undermines national sovereignty and risks turning judicial proceedings into politically motivated trials.

Disputes over international waters

One of the most notable examples of disputes over international waters is the conflict between Egypt and Ethiopia over the Grand Ethiopian Renaissance Dam. This dispute escalated in 2020 due to concerns that the Ethiopian dam on the Blue Nile could reduce water flow to Egypt, which heavily depends on the Nile River. Ethiopia, on the other hand, claims its rights to the water based on geography, as most of its water comes from highland sources within its territory.

Another example is the conflict over the Euphrates-Tigris Basin shared by Turkey, Syria, and Iraq, with Iran comprising parts of the Tigris Basin. Unilateral irrigation plans altering river flows and political tensions have strained relations in the basin since the 1960s. Disputes have prevented the three governments from effectively co-managing the basin's rivers, despite renewed cooperation efforts in the 2000s.

Transboundary water disputes between Afghanistan and Iran have also caused tensions. Afghanistan's efforts to harness the waters of the Helmand River and the Harirud for post-conflict reconstruction and development have been seen as threats to water security in Iran's eastern and northeastern provinces. The ineffective water treaty in place and Afghanistan's reluctance to engage in negotiations have further complicated the resolution of these disputes.

Overall, disputes over international waters are complex and can have far-reaching consequences. They often involve competition for resources, strategic advantages, or territorial disputes, and can lead to increased tensions and even outright conflict.

International waters agreements

International waters, also known as the high seas, are not subject to the laws of any single nation. Instead, they are governed by a system of international agreements and conventions known as maritime law. Maritime law includes rules, agreements, and conventions that govern activities on the high seas. While no one owns the ocean, it also shouldn't be a free-for-all open to exploitation and abuse.

There have been several attempts to develop an international law of the sea under the United Nations. The most recent and successful attempt was the United Nations Convention on the Law of the Sea (UNCLOS), which took place in Montego Bay, Jamaica, in 1982. This agreement has been signed by more than 160 countries, although some, including the United States, have yet to do so.

UNCLOS defines the rights and responsibilities of nations in their use of the world's oceans. It establishes a framework for managing and governing ocean spaces and their resources. It recognises exclusive economic zones (EEZs) that extend 200 nautical miles from a country's coastline. Within these zones, countries have special rights to explore and exploit natural resources such as fish, oil, and gas.

In addition to UNCLOS, there are several other international agreements and treaties related to international waters. These include:

• The 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention 1972).
• The 1973 London International Convention for the Prevention of Pollution from Ships, 1973 MARPOL.
• The 1997 United Nations Convention on the Law of Non-Navigational Uses of International Watercourses (CIW) – which has not been ratified.
• The Transboundary Groundwater Treaty, Bellagio Draft – which has been proposed but not signed.
• The 1971 Ramsar Convention on Wetlands.
• The 1992 Convention on Biological Diversity.

There are also regional agreements within the United Nations Environment Programme's (UNEP) Regional Seas Program, such as:

• The Atlantic Coast of West and Central Africa.
• The North-East Pacific (Antigua Convention).
• The Mediterranean (Barcelona Convention).
• The wider Caribbean (Cartagena Convention).
• The South-East Pacific.
• The South Pacific (Nouméa Convention).

Frequently asked questions