The real question is: who owns the resources buried in the seabed? The United Nations Convention on the Law of the Sea, signed in 1982, has given rise to an international treaty that determines the various rights and duties of coastal states.
1. What is the law of the sea?
Maritime law should not be confused with the law of the sea. The former (maritime) concerns private law, everything to do with trade, navigation and maritime transport. The second (sea) is a matter of public law. It deals with issues of maritime surfaces and their use (in war, for fishing, etc.).
Maritime law can be defined as the synthesis of several rules established around the law of navigation and work on board ships. To address the question of “ownership” of maritime areas, the law of the sea will be used.
Initially, in the 16th century, this law was governed by the freedom to “use” the sea. It belonged to no one. States could only exercise sovereignty over a zone of around 3 miles, the length of a cannonball shot (1 mile corresponds to 1.852 km). The baseline then corresponded to the maximum surface on which a cannon could be placed. As discoveries were made, technologies evolved and resources were exploited, states began to covet more and more maritime territories. With the development of globalization, maritime spaces gradually became a crucial strategic point.
When was UNCLOS adopted?
In 1958, with the Geneva Convention, the first precepts of the Law of the Sea were laid down. Based on studies carried out by the International Law Commission (a branch of the UN responsible for developing and drafting codes of international law), 3 rules were established.
- The agreement on the territorial sea and the contiguous zone
- The agreement on the high seas, the agreement on the continental shelf
- The agreement on fisheries and resources
In 1973, the United Nations met in New York for a third Convention. After numerous sessions, the United Nations Convention on the Law of the Sea (UNCLOS) was signed in Montego Bay, Jamaica. It gives rise to an international treaty that legally establishes regulations around maritime boundaries and zones surrounding coastal states, and the exploitation of resources within the oceans (be they fisheries, metals, hydrocarbons, surface and soil).
The creation of the international treaty led to the establishment of new maritime zones:
- Archipelagic waters
- Exclusive Economic Zone (EEZ),
- Navigable straits
- Seabed
States also set up the International Tribunal for the Law of the Sea, based in Hamburg, to deal with conflicts and non-compliance with the rules of the Convention. The 1982 UNCLOS is also known as the “Constitution for the Oceans”. It came into force on November 16, 1994, 12 years later. It determines the rights and rules governing the oceans. To date, 157 countries have signed it.
2. What are the limits of territorial waters?
Maritime territories are divided into several zones:
- The baselines, which lie between the landward part of a state and the maritime space.
- The territorial sea is an area belonging to the coastal state up to a maximum distance of 22 kilometers offshore (about 12 nautical miles) from the baseline. It is under the exclusive control of the coastal state, which also has full authority over the subsoil and airspace. Foreign vessels may circulate freely, as long as they do not pose a threat. Territorial waters, along with inland waters (all rivers, lakes and navigable waterways within a state), form part of what are known as “sovereign waters”
- The contiguous zone is an extension of the territorial sea. It cannot exceed 12 miles (i.e., cannot extend more than 24 miles from the baseline). The State can apply its jurisdiction in all areas (customs, health, etc.)
- The Exclusive Economic Zone is the maritime area extending from the coastal state’s baseline to 200 miles (approx. 370 km). The portion of the EEZ starting from the contiguous zone allows free movement by other states, in both air and sea space. The coastal state is obliged to rescue people in the event of danger. Other states are also authorized to build pipelines. However, full rights to land use, exploration and management of natural resources remain with the coastal state.
- The continental shelf is the extension of the EEZ. According to the United Nations Convention on the Law of the Sea, it is the natural extension of the terrestrial zone. Geological boundaries are not always easy to establish. Nevertheless, a maximum legal distance of 350 miles from the baseline has been established. Several underwater missions have been launched to assess the surface of continental shelves. In cases where two coastal countries face each other and the areas to which they belong overlap, it is up to the respective governments to agree on the boundaries.
3. What is the purpose of UNCLOS ?
The aim of the treaty is to ensure that the various maritime areas are managed and exploited legally and in harmony with each other. The oceans are as much coveted as the land, and play a fundamental role in international relations.
The articles of the international treaty simplify and establish rules for the sustainable exploitation of maritime resources, the maintenance of peace and communication, maritime research and exploration, and the protection of biodiversity and species.
They also determine the sovereignty of States over maritime zones, their limits and traffic. Finally, they establish the rights and duties of states over marine areas.
There are many issues at stake, but it is the exploitation of the sea and its resources that is sometimes the subject of particular disagreement between various coastal states. From means of transport, the oceans have become reserves of wealth. It’s a race for sovereignty, with everyone wanting to extend their zone of belonging and rights.
Islands such as the Pratas and the Paracels face theses conflicting issues.
The High Seas
The High Seas (or international waters) correspond to 60% of the oceans’ surface area, and extend over more than half the planet. It extends beyond the zones delimited by the treaty, and represents the marine space that is not the property of any state.
It belongs to no one, and is placed under the jurisdiction of the International Seabed Authority. This authority that grants or denies the right to exploit the seabed of the High Seas.
Because they belong to no state and are unprotected, international waters have become the preferred theater for many traffics. Any action taken, such as freedom of movement, the construction of underwater canals or artificial islands, must be carried out in accordance with international law and the Convention on Human Rights. Numerous organizations involving several States are fighting against all these scourges, using the World Charter for Nature.
4. What about the protection of the environment and marine biodiversity?
Not only are the oceans rich in resources and biodiversity, they also play a vital role in regulating the climate by absorbing carbon.
Under the rules of the 1982 Convention, states cannot apply their sovereign rights if they do not respect biodiversity, or if exploitation poses a threat. Preservation is not a right, it’s an obligation.
The preservation of the environment and of different species is a crucial issue. While the 1982 Ocean Constitution lays down rules for the sharing of underwater territories between the world’s different states, it does not forget to mention the duty to protect.
The high seas belong to no single nation, making it difficult to punish poachers and illegal fishing. The various marine species are over-exploited. The urgent need to preserve the environment was first mentioned in the 1958 Geneva Convention. the COP 21 summit in Paris mentioned the importance of “ensuring the integrity of all ecosystems, including the oceans”.
With economic development, the urgent need to preserve the seas and oceans became the focus of the 1982 Convention, which established the rules governing the oceans. As a result, governments began to draw up laws and launch scientific research to gain a better understanding of biodiversity, and thus protect it more effectively.
From an environmental point of view, the United Nations has set a target of 2050 for the amount of plastic waste in the sea to outnumber fish. In June 2023, UN member statesformed a new treaty to ensure the protection of waters outside their prerogative
What are some examples of marine resources coveted?
Today, many resources are attracting the interest of world powers. Soil and subsoil are veritable mines of gold and other coveted metals. This can quickly become a source of conflict. However, exploiting these resources can have significant impacts, particularly from an ecological point of view.
Many states are examining the possibility of studying these resources, as well as the little-known species living in the abyssal depths. Several tests have already been carried out, but while there are no plans to exploit nodules for the time being, the question of ecological impact remains.
In January, Norway was granted the right to explore the seabed for sulphides and manganese extracts, equivalent to a veritable fortune. The extraction of these ores could lead to a modification of the underwater landscape, with a disastrous impact on the ecosystem due to the toxic discharges caused by the extractions.
French legislation prohibits any exploration of the seabed unless there is scientific proof that there is no impact on the ecosystem.
5. What are UNCLOS sanction when the treaty is not respected?
To ensure that the rules of the 1982 Convention are properly applied, several bodies have been set up: the International Tribunal for the Law of the Sea, the International Seabed Authority and the Commission on the Limits of the Continental Shelf. The Permanent Court of Arbitration may also intervene. Coastal states can punish illegal and criminal acts.
Several organizations and authorities are deployed to track down maritime crimes. Such is the case, for example, of the Global Programme to Combat Maritime Crime, which acts against piracy.
Founded in 1982, the International Tribunal for the Law of the Sea manages disagreements between countries claiming ownership of various continental shelves and offshore reserves. It settles disputes concerning the right of navigation, the delimitation of maritime boundaries, the exploitation of resources and the protection of the environment. It settles legal disputes.
The International Seabed Authority controls and manages deep-sea mining operations in the Zone and international waters. It also ensures respect for marine species.
The establishment of a constitution for the oceans is essential to regulate exploitation and ensure the preservation of the marine environment. The rules and agreements of the United Nations Convention on the Law of the Sea serve as a reminder that economic development cannot take place unless biodiversity is protected. It also makes it possible to clearly specify the different limits of ownership of marine soils, in order to maintain a balance in international relations.
