3 International law and
Wall maps showing the geopolitical locations and borders between states are familiar to many. Yet the clear divisions between nations are a relatively recent construct. Vaughan Lowe engagingly describes how territories that were once hazily defined according to the controlling reach of rulers, crystallised into areas bounded by precise dividing lines made possible by advances in cartography.1 Nations have increasingly drawn upon their sovereign powers to intensify control over the flow of people and goods across these frontiers, particularly as security fears increased following global conflict at the start of the twentieth century and following the terrorist attacks in the United States at the beginning of the twenty-first.2
Nevertheless, the thin lines bisecting the land territory and the varied colours used to assist in distinguishing the nations on these wall maps give way to a single shade of blue for the oceans. Yet it is within this vast expanse of maritime water that coral reefs reside, raising the question as to who (if anyone) exercises sovereignty over them. This chapter explains how international law, through the provisions of the 1982 United Nations Convention on the Law of the Sea (LOSC),3 has developed rules for the resolution of this question. Importantly, this chapter will consider the likely repercussions of these rules for the conservation of coral reefs.
The LOSC was opened for signature on 10 December 1982 and was the culmination of nine years’ work under the auspices of the 3rd United Nations Conference on the Law of the Sea (UNCLOS III). This conference had been mandated to meet by the UN General Assembly in 1970. The treaty was also the last attempt of the twentieth century to codify international customary law relating to the sea. Progress had previously been made in formulating such treaties in the late 1950s, through the adoption and ultimate entry into force of conventions dealing with a number of maritime zones.4 Nevertheless, by 1970 there was a need for a reappraisal of these agreements. The world had changed following the emergence of newly independent states who had not been involved in the 1950s deliberations, and the opening up through advances in technology of the possibility for states to exploit the resources of the deep seabed.5 Of particular interest for this study was the growing desire of coastal states to address, in a detailed and comprehensive manner, issues of pollution and overfishing near to their coastal waters. As a motivation for reformulating the law of the sea, such environmental issues had recently assumed added significance following the conclusion of the United Nations Conference on the Human Environment held in Stockholm in 1972.6 The publication of the conference’s adopted principles and recommendations shortly before the first meeting under UNCLOS III, and the growth of the environmental movement in the late 1960s and early 1970s, therefore impacted upon the negotiations.7
The LOSC represented a new legal order for the seas and oceans. According to the treaty’s Preamble it was to ‘facilitate communication, and . . . promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.’ This placed demands upon the treaty to balance the competing interests of maritime states, who wanted to preserve the freedoms and rights they exercised over the seas and oceans, and those of coastal states, who demanded more powers to regulate activities in the waters close to their shores.
For conservation-minded coastal states endowed with coral reefs, the legal right under the LOSC to control possibly harmful maritime activities was, and remains, important. For example, a coastal state may be keen, inter alia, to control diving around a coral reef, implement measures to regulate the size of fish catches in an area, prohibit particular forms of fishing, manage scientific research and restrict access of boats or ships. Marine reserves may well, and arguably should, play a significant role if this is the intention. Such enclave strategies, however, are not as easy to pursue in a maritime context compared to on dry land.
Souce: This illustration is a simplified version of the diagram found in Churchill and Lowe (n 5), 30
Where a state is pursuing conservation strategies on land and within its borders, it exercises full sovereign powers. The state therefore has discretion to legislate and enforce regulations on all activities. These circumstances do not apply, however, in maritime waters, since the coastal state does not always exercise full sovereign powers over the sea. In maritime waters other states may have rights and duties of their own, which in turn affects the degree of power held by the coastal state. This poses a threat to the ability of coastal states to control activities or create and manage marine reserves in accordance with conservation goals.
The mechanism under the LOSC for determining the rights of interested states is based upon delimiting the sea into zones. These zones are infused with their own distinct legal condition, varying the relative powers of states.8 For the purposes of this study, it should be noted that the division of the sea includes the following relevant zones, as illustrated in Figure 2:
1 Internal waters;
2 The territorial sea;9
3 The exclusive economic zone (EEZ); and
4 The high seas.
In addition, special rules apply in straits and for archipelagos.
The key reference point for all of these zones is the baseline. LOSC Article 5 establishes that the normal baseline is the low-water mark along the coast as marked on large-scale charts recognised by the coastal state. Internal waters are all those marine waters located on the landward side of the baseline. Due to the ways in which baselines may be drawn, internal waters might commonly include bays, estuaries and ports.10 The territorial sea stretches for up to 12 nautical miles from the baseline in a seaward direction.11 The EEZ is an area that a state may elect to claim and which is also measured in a seaward direction from the baseline for up to 200 nautical miles.12 A state may choose to claim an area less than 200 nautical miles, or may be obliged to do so on account of the competing claim made by a neighbouring state. In the majority of cases, the high seas then lie beyond the limits of the EEZ. The high seas is an area over which no state exercises sovereignty. Each zone will now be considered in more detail.
2.1 Conservation in internal waters
The internal waters are treated as being akin to a coastal state’s land territory. Here, the state has full sovereign powers and the freedom to deal with these waters as it chooses. From the perspective of other interested parties, it is important to note that these powers of the coastal state are rarely tempered by those of others. Unless permitted by prior agreement (usually bilateral), as a general rule vessels from other states may not enter internal waters, nor demand access to a coastal state’s ports. Indeed such vessels may only enter a port as of right under customary law when the vessel is in distress and there is a danger to human life.13 One further limited exception is provided in the LOSC, according to which vessels may pass through internal waters where a straight baseline drawn to reflect a coastline characterised by heavy indentation or fringing islands encloses waters that were not previously regarded as internal.14
Thus the legal condition of the internal waters of a coastal state poses no real practical or legal constraints upon the authority and ability of a coastal state to pursue conservation policies for coral reefs. This is not the case, however, as coastal states move their attentions in a seaward direction from their baselines into the remaining maritime zones.
2.2 Conservation in the territorial sea
Before the LOSC there had been some consensus that coastal states enjoyed rights to protect their interests in the maritime waters immediately off their shores, albeit that agreement was missing as to whether this was akin to sovereignty or simply jurisdictional competence for certain activities.15 These waters have become known as the territorial sea. There was further uncertainty as to the extent of the territorial sea. Some favoured a fixed distance, whilst others (harking back to the situation for land territory) defined these waters according to the reach of the state’s might – the extent of the appropriation being defined by the flight of shore-based cannon shot.16
These differences of opinion have since been settled, with the LOSC specifying a fixed width of the territorial sea of up to 12 nautical miles17 and the coastal state having sovereign powers in this area as per Article 2:
1 The sovereignty of a coastal State extends beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.
2 This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.
3 The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.
Since it is sovereign territory, the powers of the coastal state to legislate and enforce regulations in this belt are only limited to the extent expressed in sub-paragraph 3. Obligations accepted by the coastal state under treaties may therefore be applicable to the territorial sea in addition to those relating to the protection and preservation of the marine environment in LOSC Part XII.18 Further, one particular right of third party states continues to be acknowledged as critical in this zone. This is the right of innocent passage.
States seeking to exercise the right of innocent passage must ensure that they satisfy the criteria governing the exercise of this right under the LOSC. ‘Passage’, according to Article 18, is restricted to navigation through the territorial sea in order to traverse it, or to travel to and from the internal waters. Such navigation must be continuous and expeditious. Hovering is not permitted, although stopping to weigh anchor is permitted but only where it is incidental to passage or needed for safety reasons.
A definition of ‘innocent’ has, however, proved harder to agree. Here, debates have focused upon whether a vessel must engage in a proscribed act or be in breach of a coastal state’s laws to lose its innocence, or whether the manner of the passage may more generally be regarded as of a non-innocent nature. In 1958, the Territorial Sea Convention favoured the latter and provided that passage would be innocent as long as it was not prejudicial to the peace, good order or security of the coastal state.19 In general, therefore, no particular act needed to be undertaken or law breached to immediately deprive passage of innocence. However, this definition was amended in the text of Article 19 to the LOSC.20
Article 19(1) repeats the earlier provision of the Territorial Sea Convention but goes on in subsection 2 to list a number of activities which, if engaged in by a vessel, shall automatically be regarded as prejudicial to the peace, good order or security of the coastal state. Some of these activities are of relevance to the current discussion, namely:
Article 19(2) . . .
(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
(h) any act of wilful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities; . . .
(l) any other activity not having a direct bearing on passage.
Non-innocent passage, or indeed navigation that does not amount to passage, renders the vessel subject to the coastal state’s laws and exposes it to the coastal state’s full powers of enforcement under the LOSC.21
The implications of these articles upon the ability of a coastal state to pursue conservation policies are varied. Clearly the coastal state has sovereign power to legislate for activities in the territorial sea. Also, foreign vessels are only entitled to traverse the territorial sea in accordance with the right of innocent passage, and therefore ought to comply with coastal state environmental legislation, or risk becoming subject to enforcement measures.22 Furthermore, many of the activities that a coastal state will wish to regulate for the conservation of coral reefs are, or could easily be, of a kind that could deprive passage of its ‘innocence’ in accordance with Article 19(2). Plainly, however, this cannot be true of navigation since this is the very act that the right of innocent passage seeks to protect. This could potentially leave the coastal state in a dilemma, since it may want to establish MPAs and exclude or direct the passage of all vessels in these enclaves so as to conserve coral reef ecosystems. The right of innocent passage could prevent this, exposing coral reefs to disturbance or risk of damage by vessels merely exercising a right to navigate through the waters. The problem, however, should not be exaggerated.
From the outset, it is worth noting that the danger to vessel hulls from navigating in close proximity to coral reefs may deter captains from exercising their right of innocent passage; indeed a protected area helps navigators identify such dangerous waters. However, it may also be possible for the coastal state to force all vessels away from protected areas within the territorial sea as a matter of law.
LOSC Article 21 outlines the range of laws and regulations that coastal states may enact with respect to the innocent passage of vessels. In particular, such laws and regulations may relate to the conservation of the living resources of the sea,23 prevention of the infringement of the fisheries laws and regulations,24 and the preservation of the marine environment of the coastal state.25 Fabio Spadi suggests that these provisions are enough to entitle the coastal state to exclude or limit navigation in particular areas of the territorial sea.26
A firmer basis for effectively excluding vessels may, nevertheless, exist under Article 22 of the LOSC, which allows coastal states to require vessels to engage in innocent passage through defined sea lanes in order to ensure the safety of navigation. In designating these sea lanes, the coastal state is not entitled to ultimately hamper the innocent passage of vessels27 and must take account of the factors listed in Article 22(3), e.g. any recommendations with a bearing upon sea lanes from the International Maritime Organization (IMO), and the density of traffic that will use the route.28 The former means that a coastal state may not designate sea lanes so as to leave a vessel with no option but to leave the coastal state’s waters during passage.
Strictly speaking, however, the aim of deploying Article 22 should be to protect vessels from the danger of reefs, rather than vice versa. Consequently, forcing vessels with shallower drafts, which could safely navigate over reefs, into sea lanes, might be regarded as an unwarranted hampering of the right to innocent passage. Nevertheless, coastal states may be emboldened to use sea lanes for environmental reasons since, as Spadi notes, the power of the IMO to adopt routing measures beyond the territorial waters is increasingly being applied for environmental purposes.29 This could encourage coastal states to adopt a similar approach in the territorial sea where the rights of foreign states are comparatively weaker.
In summary, the sovereign powers of the coastal state within the territorial sea are strong enough to allow the promotion of conservation strategies for coral reef ecosystems. Further, it can be argued that the right of other states to engage in innocent passage is not a significant bar to the effective management of reefs by coastal states. The fact that many activities that a state may wish to regulate are not permitted as part of innocent passage goes a long way towards avoiding any conflicts. Unfortunately, there is greater doubt as to whether the same enabling conditions exist within the EEZ.
2.3 Conservation in the exclusive economic zone
The EEZ was intended as a compromise to the historical disagreements that existed over attempts by some countries to claim extended territorial seas.30 In particular, the EEZ was a means to satisfy the growing desires of developing countries to exercise greater control over natural resources found close to their coastlines but not within territorial waters.31 Since such resources previously fell within the global commons of the high seas, they had been freely available to developed countries with the resources to support long-distance fishing fleets. The EEZ was therefore created under Part V of the LOSC with its own legal condition, distinct from those of the high seas and the territorial sea.32