Right of the sea

The right of the sea is consisted the whole of the rules relating to the use of maritime spaces, i.e. “the salt water extents, in free and natural communication” by the subjects of the international law, in the forefront of which the States appear.

The right of the sea thus defines juridically on the one hand maritime spaces (interior Eaux, territorial Sea, contiguous Zone, ZEE, continental shelf, open sea, specific schemes of the international Détroit S and the States archipelagoes), on the other hand the rights and the duties of the States in these spaces, in particular those of navigation and exploitation of the economic resources, like those of the protection of the seamen circle. The right of the sea is in the center of Enjeu X Géopolitique S. French maritime space is today the second in the world by its surface, about 11 million km ², just after the the United States.

Formation of the right of the sea

The right of the sea is largely of usual origin. It constitutes one of the oldest branches of the public International law. The principle of the freedom of the seas was posed for the first time by Grotius at the 17th century.

The right of the sea was limited thus a long time to this principle of the freedom of the seas. The Sea and the Océan S are opened with all and do not belong to anybody, except for a band of 3 nautical miles (1 thousand sailor is equivalent to 1,852 km) since the shore where the Coastal state exerts a full sovereignty, corresponding to the range of the ball of gun of the time.

The progress of the military techniques, of the high-sea Fishing, mining and oil Offshore oil rig as well as the increasing risks for the environment involved during the 20th century a multiplication of the claims territorial on the seas, often concurrent, and of the unilateral restrictions of rights of navigation and fishing. This situation led the international community to seek a common mode, adapting the doctrines of the freedom of the seas, to solve the tensions between the States.

The conference of Geneva (1958)

It is only with the conference of Geneva in 1958 qu' is codified the right of the sea on the basis of work of the Commission of the international law. Four conventions are adopted there. They relate to:
  1. the territorial Sea and the contiguous Zone;
  2. the open sea (convention on the open sea of April 29th, 1958 which codifies the legal provisions international concerning the open sea);
  3. the continental shelf (convention on the continental shelf of March 29th, 1958 which has the aim of delimiting and to define the rights of the States to explore and exploit the natural resources of the continental shelf);
  4. the fishing and conservation of the living resources.

These conventions are comings into effect between 1962 and 1966 (the France ratifying only the two last):

In 1970, on the initiative of the representative Maltese Arvid Pardo, the General meeting of the United Nations adopts the resolution 2749 (XXV) which qualifies “common Patrimoine of humanity” sea-beds and oceans located beyond the limits of the national jurisdictions.

The convention of Montego Bay (1982)

Following the questioning by the developing countries of certain rules posed by the texts adopted in Geneva, the third conference on the right of the sea is convened by UNO. This one sits of 1973 with 1982 and leads to the signature with Montego Bay (Jamaica) of the Convention of the United Nations on the right of the sea (CNUDM). Its coming into effect is reached only in November 1994, after an in-depth amendment of the provisions most disputed by the industrialized countries by the agreement of July 29th 1994. The France ratifies convention in 1996. The majority of the large industrialized countries ratified it, except for the the United States. The convention of Montego Bay leads to the compartmentation of the right of the sea. She adds four maritime zones to the zones defined previously:

Convention institutes a International court of the right of the sea which sits at Hamburg.

Typology of maritime spaces

One understands by maritime seas or spaces, taking into consideration International law, the salt water extents, in free and natural communication. This thus excludes fresh water and the inland seas like the Caspian Sea or the Dead Sea.

The maritime spaces annexed to the terrestrial territory

Interior water (of the territory to the base lines)

It is about the water included between the shore and the base Line from which is measured the width of the territorial Sea. The ports, the harbors, the roads, the estuaries, the historical bays are in interior water.

The sovereignty of the State is total there. The access to this water is only spring of the Coastal state, whose laws and payments are fully applicable. The foreign private ships profit from a right of free entry in the ports on the basis of a conventional provision (convention of Geneva of 1923). The State can regulate and even to prohibit the access to its ports of the foreign warships, which have a complete immunity in any event.

Territorial sea (of the base lines up to 12 miles to the maximum)

Formerly, the territorial Sea extended to 3 marine miles from the coast (with a range of gun). Today it can extend up to 12 marine miles starting from the base lines which separates it from the interior Eaux.

The State exerts its sovereignty on the Territorial water: on the sheet of water, but also on the bottom and the basement like on the superjacent airspace. The foreign ships, that they are or warship tradind ships, have a right of innocent passage in the territorial Sea. The passage should not however “attack peace, to the good order and the safety of the Coastal state”. The Coastal state can temporarily suspend the right of innocent passage of the foreign ships (because of military operations).

International straits

The straits make communicate two seas by a portion of sea inserted between two strips of land. The convention of Montego Bay does not call into question the legal mode of the straits where the passage is regulated for a long time by conventions ad hoc (the straits Turkish are governed by the convention of Montreux of 1936, the Straits of Gibraltar by a convention of 1912). However, she recognizes a right-of-way in transit without obstacle to all the ships. The right-of-way in transit cannot be suspended. It applies as well to the ships as with the aircraft to the superjacent airspace.

Archipelagic water

This concept was created by convention of Montego Bay for the States archipelagoes like the Filipino Indonesia or the . The States archipelagoes must answer precise criteria which make it possible to determine the layout of the base lines while limiting the abuses. The States of which a part is continental and the other islander (the Greece) do not return in this category. The ships of all the States enjoy in archipelagic water either the right of innocent passage, or of the right-of-way archipelagic for the roads which are used normally for international navigation. The mode of the right-of-way archipelagic is comparable with that of the right-of-way in transit without obstacle in the international straits.

The contiguous zone (of the limit external of the territorial sea up to 24 miles of the base lines)

Of a maximum width of 12 miles beyond the limit external of the territorial sea, it is about a “space plug” where the State has only some finalized competences (controls to prevent and repress the infringements with the national laws in certain fields). The concept of contiguous Zone results in particular from the American laws of the Twenties aiming at making respect the prohibition of alcohol. The convention of 1958 makes it possible at the bordering State to exert controls necessary in order to prevent or to repress “the infringements with its laws and payments customs, tax, medical or of immigration on its territory or in its territorial sea”.

Spaces on which the Coastal state exerts sovereign economic material rights

The continental shelf

Geographically, it is about the immersed edge of the littoral going down soft inclined under the sea. The legal definition is different: all the States have one of them, of 200 marine miles starting from the base lines measuring the width of the territorial sea. It is about a complex and wobbly definition, for more political and diplomatic reasons that legal which is the fruit of a compromise between the States not having geographically a natural continental shelf and those by having very vast. The convention of Montego Bay defines the criteria of them:
  1. the continental shelf at least extends starting from the base lines on 200 marine miles, even if there is no geological continental shelf.
  2. If the continental shelf natural exceeds the 200 marine miles, it will stop juridically with the external edge of the continental terrace, i.e. where any continental shelf ceases geologically.
  3. In any event, the continental shelf cannot extend beyond from a maximum limit: either 350 marine miles starting from the base lines, or 100 marine miles beyond the Isobathic 2500 meters (i.e. the line connecting the points equal depth = 2500 m). The Coastal state is free to choose between the criterion of distance and the criterion of depth the most favorable criterion.
The legal mode of the continental shelf relates to only the bottom and the basement beyond the territorial sea. The Coastal state has rights sovereign relating to the exploitation and exploration of the natural resources of the continental shelf, which relates to sea-beds and their basement, other than superjacent water.

The exclusive economic zone (ZEE)

ZEE is of a maximum width of 200 miles (370 km) beyond the base lines. The Coastal state has “sovereign rights for purposes of exploration and exploitation, conservation and natural stock management, of superjacent water at sea-beds, sea-beds and their basement”. The Coastal state can thus regulate the activity of fishing, in particular to fix the acceptable volume of the captures.

International maritime spaces

Open sea (beyond the ZEE)

The open sea starts beyond the limit external of the ZEE and accounts for 64% of the surface of the oceans. The principle of freedom prevails there: freedom of navigation, overflight, fishing, of the scientific research, to pose cables and pipelines, to build artificial islands. The legal order which bracket is there that of the authorities of the State whose ship beats the house. It is thus a personal competence, founded on the nationality of the ship. The Coastal states have only one right of continuation in open sea, when the continuation started in a zone concerned with the jurisdiction of the prosecuting State. International conventions multiplied to regulate fishing in open sea, for the protection of specific species (Baleine, Thon) or even in 1995 in connection with overlapping stocks (the fishing resources which are with horse on ZEE and the open sea) and in this case, towards an extension of competences of the Coastal state.

The international Zone of sea-beds

The international Zone of sea-beds (called the “Zone”) is consisted sea-beds. It starts where sink the continental shelves. The Convention of Montego Bay devotes the principle resulting from the resolution 2749 (XXV) of the General meeting: the Zone escapes any appropriation, it must be only used “at exclusively peaceful ends” and exploited “in the interest of very whole humanity”. If the national appropriation of the resources of the Zone is prohibited, convention founds a mode of collective appropriation through the international Authority of sea-beds which acts on behalf of very whole humanity, via a specific body, the Company.

Nevertheless, the prospect for the exploitation of the resources of sea-beds, in particular of the polymetallic nodules (see the Glossaire of the minerals ), and the economic Enjeu that this one could represent pushed the countries developed to negotiate an agreement of implementation of the provisions of the convention of Montego Bay. The agreement of July 28th, 1994 proceeds thus to the substantial rehandling of part XI of convention. The mode which this agreement sets up rebalances the capacities in favor of the industrialized countries within the Authority (which are seen recognizing a right to veto with the Council) and in favor of the private sector investment, at the expense of the ideology of redistribution of the richnesses to the planetary scales which had marked the text of 1982. Eight States whose France obtained from the International Authority of Sea-beds of the contracts of exploration in the Zone.

Delimitation of maritime spaces

If the only existing limit is with the open sea, or the Zone, a unilateral act (i.e. without dialog) is sufficient. If they are two adjacent States, or facing, it is necessary that the delimitation is conventional (agreement between the two States). With article 15 of Convention of Montego Bay, and especially since the stop of the the International Court of Justice (February 20th, 1969, continental Shelf of the North Sea), one observes a will to release from the “equitable principles” for this delimitation. For example, being the delimitation of the continental shelf of two Neighboring states, the rule of the équidistance can be corrected by the taking into account of “special circumstances”.

It should be noted that many States did not delimit their maritime spaces completely yet.

Environmental protection

Maritime environment is threatened by many pollution, of which the greatest part (more than 80%) comes from terrestrial sources and arrive in the seamen circle by the rivers and rivers, or the atmosphere; it can be a question of chemical pollution (produced plant health, hydrocarbons…) or biological (medicamentous residues, invading species…). Environmental protection is from now on a major shutter of the right of the sea.

Pollution

The responsibility for the States as regards fight against pollution is exerted in accordance with the international law, in particular with the conventions signed within the framework of the international maritime Organization (OMI); it relates to in particular the zones under their jurisdiction (responsibility for the Coastal state with respect to pollution related to the maritime activities and terrestrial), the ships which attend their ports (responsibility for the Port state ) and the ships under their house (responsibility for the Flag state ).

Particular multilateral conventions associate in particular several Coastal states which define plans to fight against accidental pollution (“Plane Handle” for the Manche, “Biscay Plan” for the the Bay of Biscay, for example).

Other specific instruments were implemented, for example of the financial instruments as the Funds international of compensation for the damage due to the pollution by the hydrocarbons (Fipol) which combines a system of responsibility for the pollutants and funds of compensation for the victims since November 1992; its ceiling of compensation appears however too low taking into account the considerable economic impacts and environmental of the recent maritime catastrophes. The need appears from now on clearly with the international level of a system of responsibility and more effective repair which takes better into account the damage with the environment.

General conventions

In addition to the Convention of the United Nations on the right of the sea, a certain number of international conventions relate to the seamen circle particularly; it is in particular the case of the Convention on biological diversity and of the Convention on the protection of the subaqueous cultural heritage.

Regional conventions

Several international conventions known as “regional” are devoted to the protection of the seamen circle and the marine resources. One can quote in particular:

Europe

The EU works with a Stratégie for the seamen circle Stratégie with in 2002 publication by the Commission of a communication “Towards a strategy for the protection and the conservation of the seamen circle”, validated by the Council “Environment” of March 4th, 2003 which required that be defined an ambitious strategy before 2005 to adopt at the latest in 2005. After various delays, the strategy was translated (after consultation of 2002 to 2004 of the Member States and the applicant countries, principal bordering third countries of the same seas and oceans that the EU, of 16 commissions and international conventions, 21 great organizations and industrial associations representing the civil society, as well as scientists and academics) into a Proposition of Framework directive , adopted on July 23rd, 2006 by the council, Nov. 14, 2006 (1st reading) by the the European Parliament, discussed and adopted by the council on Oct. 24, 2006, before a new passage to the assembly in second reading (at the end of 2007?). This Directive aims for 2011 “ the durable use of the seas and the conservation of the marine ecosystems ” via an integrated framework fixing the operational orientations and of the specific measures; The Member States sharing the same marine area will have to work out - in close co-operation - plans guaranteeing the “ ecological good state ” their water maritime, being based on detailed evaluations of the state of Maritime environment and defining actions to be undertaken and objectives to be reached. The Subsidiarité is proposed: No measurement will be taken at community level (but these national plans will be controlled and approved by the Commission).
3 standard of measurements builds this strategy for the seamen circles:
  • there to protect and preserve the ecosystem S, or to restore their operation, the processes and the structure of the biodiversity;
  • there to prevent and gradually eliminate the Pollution;
  • to contain use of the services and the marine goods and the other activities the undertaken in this medium to levels compatible with the future uses and the marine ecosystems.
The objective is “ to regularly ensure the protection and the conservation of this medium and to avoid its deterioration” to reach a “ ecological good state of the seamen circle”, at the latest in 2021. The strategy was validated and adopted by the commission on October 17th, 2007. the commission could legislate on fishing but only to prohibit it audelà of 1000 m, so also applying before December 2008 the decisions of December 2006 of UNO to the elimination of the practices of destroying fishings in open sea. It introduces the concept of “ European water ” (“ water located beyond the base line being useful for measurement of the width of territorial water and extending to the borders from the zone placed under sovereignty or the jurisdiction from the Member States, including the bottom and the basement of the whole of this water ”).

Legal status of the ships

A ship is attached in a State by a nationality, indicated by the house. Normally there exists a substantial bond between the ship and the State. But certain States (for example the Liberia, Panama, Cyprus, Malta) leave free the right to beat their house. It is about flags of convenience. A Convention on registration of the ships signed in 1986 under the aegis of UNCTAD provides that the substantial bond should imply economic and administrative elements. But this convention is not coming into effect, and for the moment, 60  % of the world fleet is under Flag of convenience and escapes from this fact from certain security guarantees. The European Union decided to intervene in this field, in particular by the European Agence for the maritime security.

Courts of competent jurisdiction in right of the sea

In right of the sea, the disagreements can be regulated in front of several types of courts:

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