Chapter 8 Audio podcast

As the ice is melting in the Arctic Ocean, both states and commercial shipping companies have begun exploring the possibility of opening up new shipping routes in the Arctic. The so-called Northeast Passage consists of a transit route that would potentially link Europe and the Atlantic Ocean with Asia and the Pacific Ocean, above the Eurasian landmass. That is,north of Norway and Russia. Similarly, a northwest passage would link Europe and the Atlantic Ocean with Asia and the Pacific Ocean above the North American continent.

Not surprisingly, the potential opening of such new passages is high politics, and states have begun arguing about how international law governs and should govern such routes.Should such routes be considered, for example, international straits, and thus passages that are essentially open to all forms of shipping and all states?Or should the coastal states have certain territorial rights in the areas, and thus be allowed to restrict access to such routes? In this episode of the International Law Podcast, episode eight, I will look more closely at the international law of the sea,one of the oldest disciplines in international law. And as usual, I will highlight three particular issues.

The first issue I will highlight is the fairly sophisticated system of maritime zones in the law of the sea. At the outset, here, it is worth noting that under international law, the sea consists of three elements:the atmosphere above the sea, the water in the sea, and the seabed and subsoil. One of the major hallmarks of the international regulation of the sea is that it is divided into a range of different maritime zones, where a coastal state exercises different forms of jurisdiction. Now, the zones havebeen created to balance the often-competing interests of, on the one hand, coastal states, and, on the other, states that may have an interest in using the sea that runs adjacent to the coast for various different purposes. As a main rule, the further out to sea from the shore one moves, the less rights for the coastal state. Some of the maritime zones are so closely related to the coastal state that they simply fall within the territorial sovereignty of that state. Here, then, the coastal state has the exclusive right to enforce its laws and regulations. These areas include:the internal waters, the territorial sea, and the Archipelagic waters. Also, falling within the territorialsovereignty of the coastal state is an international strait, such as the Malacca Strait, or the Strait of Hormuz.

But international straits are vitally important to international navigation, and they are therefore governed by a special legal regime ininternational law.In an international strait, a coastal state must exercise its sovereignty and jurisdiction with respect of the needs of the international communication and trade. And for that reason, navigation through an international strait is called ‘transit passage’, and as a main rule, such passage cannot be suspended by a coastal state. This, of course, helps explain why it is so important for both the coastal states and other states to determine if a future northwest or a future northeast passage in the Arctic Ocean should be governed as an internationalstrait or not. Once you move further out to sea, you encounter the maritime zones that, although the coastal state still has certain rights there, are beyond the territorial sovereignty of that coastal state.Here, the coastal state can only exert certain jurisdictional powers.

These areas include: the contiguous zone, the exclusive economic zone, and the continentalshelf. Even further out from the shore are the spaces that simply lie beyond the jurisdiction of a coastal state. Here, that state does not possess any particular rights or jurisdictional powers when compared to other states. These areas include the high seas and the seabed and subsoil thereof, the latter also known as ‘the area’. Now, the different maritime zones all have different breadths. The territorial sea, for example, can have a maximum breadth of twelve nautical miles. In practice, to measure the breadth of the various zones, one must first identify the physical point from where that breadth of the zone is measured. This is what we call ‘the baseline’. And since coastal states have certain rights in the different zones, coastal states generally have an interest in pushing their baselines as far as possible out into the sea. Interestingly, small islands states like Tuvaluand Kiribati, that lie far out in the Pacific, have begun to set their baselines on the basis of certain geographical coordinates that are fixed. They seem to do so because these states are concerned that rising sea levels will lead to gradually decreasing baselines.

The second issue that I want to highlight in this episode concerns the continental shelf and the delimitation thereof. It is well-established that the coastal state has sovereign rights over the continental shelf for the purposes of exploring it and exploiting its natural resources. In fact, the continental shelf is considered to be an inherent feature of sovereignty, and it therefore does not have to be proclaimed by a coastalstate. The continental shelf is primarily used by a coastal state to extract oil and gas. And for coastal states with rich deposits of such natural resources, the continental shelf can be a source of immense value. One of the better examples of that is Norway. There are detailed rules to specify how the coastal state should measure the breadth of its continental shelf. But it generally runs to a distance of two hundred nautical miles from the baseline. But it may reach beyond that, depending on various geological criteria.

When a state claims that its continental shelf exceeds two hundred miles, it must forward the claim to theCommission on the Limits of the Continental Shelf. It will then be up to that Commission to assess the claim and make a recommendation to the state.At present, various states have already submitted their claims to the Commission concerning the continental shelf in the Arctic Ocean. The first of these states was Russia, which made its claim in the ocean in December 2001. Since then, Norwayhas forwarded on its claims to parts of the shelfnorth of Svalbard. And in 2014, on behalf of the Kingdom of Denmark, the Danish government forwarded its claim to a large part of the continental shelf situated to the north of Greenland. Importantly, the Commission does not delimit overlapping claims to the shelf,so it will be forthe different Arctic states, themselves, to negotiate their respective claims.

It's not just in the Arctic Ocean thatstates, these days, hold potentially overlapping claims to the continental shelf. It's also the case in the South China Sea. Now, as some listeners may know, China has been constructing artificial islands on shoals and reefs in the region for years. And in 2016, an arbitration tribunal rejected China's claims in the area. Then, in December 2019, Malaysia submitted a claim on an extended continental shelf beyond two hundred miles in the South China Sea.Essentially, Malaysia's claim is a direct challenge to China's controversial claims in that same area.

The third and final issue that I'll note in this episode concerns how the law of the sea seeks to conserve marine life,because one of the main purposes of the law of the sea is to ensure that the living resources of the sea and ocean, such as fish and whales, are conserved and not over-harvested. Here,the relevant parts of the law of the sea generally overlap quite substantively with the regulation in international environmental law. When it comes to the efforts to conserve marine life, a couple of points are worth making about the division of the sea into different maritime zones. The first of these is that maritime zones are important for conserving the living resources because they help regulate the extent to which coastal states and other states are allowed to fish, or otherwise exploit, the marine resources of the sea. For example, the whole idea of creating an exclusive economic zone is to allow the coastal state the right to fish in the waters immediately off its coast. But the division of the sea into maritime zones are not very well suited to preserve many species of marine life.After all, fish, whales, and seals generally do not respect manmade artificial boundaries. For that reason, the law of the sea generally seeks to protect marine life by creating more specific legal regimes that serve the purposes of the particular species.

There are, for example, different legal regimes for the conservation of highly migratory species, such as tuna,dolphin,and shark. And for anadromousstock, such as salmon and sturgeon. There is also a special legal regime for the conservation of whales. That regulation centers around a convention for the regulation of whales that has established an international whaling commission that regulates whaling in practice.Today, only a few states allow commercial whaling. Among those states are Norway, Iceland, and, since 2019, also Japan.