Law of the Sea

The United Nations Convention on the Law of the Sea lays down a comprehensive regime of law and order in the world's oceans and seas establishing rules governing all uses of its resources. It enshrines the notion that all problems of ocean space are closely interrelated and need to be addressed as a whole.

The Convention was opened for signature on 10 December 1982 in Montego Bay, Jamaica. This marked the culmination of more than 14 years of work involving participation by more than 150 countries representing all regions of the world, all legal and political systems and the spectrum of socio/economic development. At the time of its adoption, the Convention embodied in one instrument traditional rules for the uses of the oceans and at the same time introduced new legal concepts and regimes and addressed new concerns. The Convention also provided the framework for further development of specific areas of the law of the sea.

The Convention entered into force in accordance with its article 308 on 16 November 1994, 12 months after the date of deposit of the sixtieth instrument of ratification or accession. Today, it is the globally recognized regime dealing with all matters relating to the law of the sea.

The Convention comprises 320 articles and nine annexes, governing all aspects of ocean space, such as delimitation, environmental control, marine scientific research, economic and commercial activities, transfer of technology and the settlement of disputes.

Some of the key features of the Convention are the following:

• Coastal States exercise sovereignty over their territorial sea which they have the right to establish its breadth up to a limit not to exceed 12 nautical miles; foreign vessels are allowed "innocent passage" through those waters;
• Ships and aircraft of all countries are allowed "transit passage" through straits used for international navigation; States bordering the straits can regulate navigational and other aspects of passage;
• Archipelagic States, made up of a group or groups of closely related islands and interconnecting waters, have sovereignty over a sea area enclosed by straight lines drawn between the outermost points of the islands; the waters between the islands are declared archipelagic waters where States may establish sea lanes and air routes in which all other States enjoy the right of archipelagic passage through such designated sea lanes;
• Coastal States have sovereign rights in a 200-nautical mile exclusive economic zone (EEZ) with respect to natural resources and certain economic activities, and exercise jurisdiction over marine science research and environmental protection;

Some of the key features of the Convention are the following:

• All other States have freedom of navigation and overflight in the EEZ, as well as freedom to lay submarine cables and pipelines;
• Land-locked and geographically disadvantaged States have the right to participate on an equitable basis in exploitation of an appropriate part of the surplus of the living resources of the EEZ's of coastal States of the same region or sub-region; highly migratory species of fish and marine mammals are accorded special protection;
• Coastal States have sovereign rights over the continental shelf (the national area of the seabed) for exploring and exploiting it; the shelf can extend at least 200 nautical miles from the shore, and more under specified circumstances;
• Coastal States share with the international community part of the revenue derived from exploiting resources from any part of their shelf beyond 200 miles;
• The Commission on the Limits of the Continental Shelf shall make recommendations to States on the shelf's outer boundaries when it extends beyond 200 miles;

Some of the key features of the Convention are the following:

• All States enjoy the traditional freedoms of navigation, overflight, scientific research and fishing on the high seas; they are obliged to adopt, or cooperate with other States in adopting, measures to manage and conserve living resources;
• The limits of the territorial sea, the exclusive economic zone and continental shelf of islands are determined in accordance with rules applicable to land territory, but rocks which could not sustain human habitation or economic life of their own would have no economic zone or continental shelf;
• States bordering enclosed or semi-enclosed seas are expected to cooperate in managing living resources, environmental and research policies and activities;
• Land-locked States have the right of access to and from the sea and enjoy freedom of transit through the territory of transit States;
• States are bound to prevent and control marine pollution and are liable for damage caused by violation of their international obligations to combat such pollution;

Some of the key features of the Convention are the following:

• All marine scientific research in the EEZ and on the continental shelf is subject to the consent of the coastal State, but in most cases they are obliged to grant consent to other States when the research is to be conducted for peaceful purposes and fulfils specified criteria;
• States are bound to promote the development and transfer of marine technology "on fair and reasonable terms and conditions", with proper regard for all legitimate interests;
• States Parties are obliged to settle by peaceful means their disputes concerning the interpretation or application of the Convention;
• Disputes can be submitted to the International Tribunal for the Law of the Sea established under the Convention, to the International Court of Justice, or to arbitration. Conciliation is also available and, in certain circumstances, submission to it would be compulsory. The Tribunal has exclusive jurisdiction over deep seabed mining disputes.

The United Nations has long been at the forefront of efforts to ensure the peaceful, cooperative, legally defined uses of the seas and oceans for the individual and common benefit of humankind. Its groundbreaking work in adopting the 1982 Law of the Sea Convention stands as a defining moment in the extension of international law to the vast, shared water resources of our planet. The United Nations Office of Legal Affairs, through its Division of Ocean Affairs and the Law of the Sea, plays a major role in supporting those efforts.

The United Nations Environment Programme (UNEP), particularly through its Regional Seas Programme, acts to protect oceans and seas and promote the environmentally sound use of marine resources. The United Nations Educational, Scientific and Cultural Organization (UNESCO), through its Intergovernmental Oceanographic Commission, coordinates programmes in marine research, observation systems, hazard mitigation and better managing ocean and coastal areas.

The International Maritime Organization (IMO) has developed and/or administers a wide range of treaties, focusing, in particular, on preventing the pollution of the oceans and seas. These include the landmark International Convention for the Prevention of Pollution from Ships of 1973 (MARPOL), as modified by a 1978 Protocol (MARPOL), and the 1954 International Convention for the Prevention of Pollution of the Sea by Oil (the “OILPOL Convention”).

And in the years since the adoption of the Law of the Sea Convention, additional agreements have been adopted, to further expand the legal regime governing the oceans and seas. Among these is the 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, which provides a regime for the conservation and management of these stocks, with a view to ensuring their long-term conservation and sustainable use. The state of the world highly migratory, straddling and other high seas fishery resources and associated species, an online publication of the Food and Agriculture Organization of the United Nations (FAO), defines and reports on the status of these fish stocks internationally as of 2006.

As for the Law of the Sea Convention itself, its provisions are implemented with the assistance of several bodies. Among these, the International Seabed Authority enables states parties to organize and control activities relating to mineral resources in the international seabed area. The International Tribunal for the Law of the Sea adjudicates disputes on the interpretation or application of the Convention. And the Commission on the Limits of the Continental Shelf applies specific scientific and technical formulas to delineate the outer limits of the continental shelf, when that submerged portion of the land territory of a coastal state extends farther than 200 nautical miles beyond its coastline.

“Human activities are taking a terrible toll on the world's oceans and seas. Vulnerable marine ecosystems, such as corals, and important fisheries are being damaged by over-exploitation, illegal, unreported and unregulated fishing, destructive fishing practices, invasive alien species and marine pollution, especially from land-based sources. Increased sea temperatures, sea-level rise and ocean acidification caused by climate change pose a further threat to marine life, coastal and island communities and national economies.

Oceans are also affected by criminal activity. Piracy and armed robbery against ships threaten the lives of seafarers and the safety of international shipping, which transports 90 per cent of the world's goods. Smuggling of illegal drugs and the trafficking of persons by sea are further examples of how criminal activities threaten lives and the peace and security of the oceans. ...

The theme of World Oceans Day, ‘Our oceans, our responsibility’, emphasizes our individual and collective duty to protect the marine environment and carefully manage its resources. Safe, healthy and productive seas and oceans are integral to human well-being, economic security and sustainable development.”

— Secretary-General Ban Ki-moon’s message on the first observance of World Oceans Day, 8 June 2009

The Common Heritage of Mankind and the Sub-Saharan African Native Land Tenure System: A “Clash of Cultures” in the Interpretation of Concepts in International Law?

The common heritage of mankind (CHM), a relatively recent and rather nebulous concept under international law, has been the subject of divergent interpretations.1 There is some debate as to whether this concept merely concerns joint (or collective) management or whether it connotes communal ownership of the spatial areas to which it is applies.

Undoubtedly, these varied interpretations are influenced by diverse factors including political, economic and ideological differences. However, one factor that appears to be under- emphasized in the discourse on CHM is the role of culture in influencing the divergent interpretations. This article will use the deep seabed and subsoil beyond national jurisdiction (the Area) and the Area’s resources (which are both said to be CHM) as a case study, to explore the sometimes implicit role of cultural values in the interpretation and understanding by certain states of concepts in international law and politics.

This article argues that cultural differences as to the interpretation of “ownership” are relevant to understand- ing the lack of a common language in interpreting CHM. Specifically, the article uses the sub-Saharan African cultural interpretation of “ownership” of property and argues that this is crucial in appreciating the interpretation that sub-Saharan African states give to the CHM concept. The international relations concept of the CHM of the Area has been chosen as a case study because it embraces the issue of “ownership” of a spatial area and its resources, albeit in respect of a global common,which is a relevant issue in cultural politics. For instance, Strathern points out that “[l]ate twentieth-century cul- tural politics makes it impossible to separate issues of identity from claims to the ownership of resources.”

The article starts with a general exploration of the role of culture in states’ interpretation and understanding of concepts in international law. It then examines Arvid Pardo’s proposal for the Area and its resources to be declared to be CHM and the consequent United Nations (UN) CHM resolutions. The article then explores sub-Saharan African cultural interpretation of ownership of property and argues that this is a key factor to be taken into consideration in appreciating the understanding and interpretation by these states of the concept of the CHM of the Area and its resources. It ends with some conclusions.

This article has argued that the interpretation of the CHM concept by certain African states as connoting common property rather than mere joint manage- ment is influenced by their cultural values which embrace the idea of the communal ownership of property. The idea of communal ownership may be objectionable to some, especially those from a western cultural persuasion, who insist that CHM merely connotes joint management since they perceive ownership of land in terms of individualized ownership. However, to those familiar with sub-Saharan African native land tenure and other cultures that incorporate communal ownership of landed property in their domestic system, there is nothing unusual about the Area and its resources being common property. It has been argued in this article that the cultural variance of states plays a role in states’ interpretation and understanding of concepts in international law and a “clash of cultures” could lead to divergent interpretations of the same concept. Consequently, the cultural nuance of a state is a crucial factor to take into consideration in understanding how it interprets concepts in international law.

In conclusion, let it be clear that the purpose of this article is not to advance the position that any particular culture should take precedence over any other in the interpretation of concepts in international law. Rather, it seeks to point out that an understanding of the role of culture would be helpful in promot- ing interculturality in the interpretation of concepts in international law.

Piracy and the East African Region

Although sometimes romanticised in fiction books and films as swashbuckling Robin Hood-type characters, in reality under interna- tional law individuals who carry out the act of piracy at sea are regarded as committing a heinous crime. In the Le Louis case, it was said that pirates are ‘enemies of the human race, renouncing every country, and ravaging every country in its coasts and vessels indiscriminately, and thereby creating an [sic] universal terror and alarm’.Piracy is one of the oldest international crimes, and also one of the first subject to universal jurisdiction. Viscount Sankey LC, in the In re Piracy Jure Gentium case, pointed out that the states were allowed to exercise universal jurisdiction for piracy because ‘a person guilty of such piracy has placed himself beyond the protection of any State. He is no longer a national, but ‘hostis humani generis’ and as such he is justiciable by any State anywhere.’

Although piracy has for a long time attracted the attention of the international com- munity, it has assumed particular prominence off the coast of East Africa, especially around the coast of Somalia. According to the International Maritime Bureau (IMB), a specialised division of the International Chamber of Commerce (ICC), the Somali pirates operate not only in the northern, eastern and southern coast of Somalia, but also in the Western Indian Ocean, the Gulf of Aden and the Arabian Sea. The IMB, which provides figures on incidents of piracy and armed robbery at sea, reported that in 2012 there were a total of 297 attacks worldwide, of which 28 were hijackings. Of these, there were 75 total incidents, 14 hijackings and, as at 31 December 2012, a total of 127 hostages reported for Somalia piracy. Piracy worldwide has been estimated to cost the international economy $7–12 billion per year, with a large chunk of the costs from the piracy incidents in the East African region, and as such it is currently a major security challenge faced by the international community.

This chapter explores the recent upsurge of piracy off the coast of East Africa. It begins by exploring the definition of piracy, particularly with regard to certain difficulties faced with applying the traditional conception of piracy under international law to the situation off the coast of East Africa. It will then examine whether there is a distinction between the piracy situation in East Africa and that in other regions, in particularly Southeast Asia and West Africa. Further, the chapter will examine the various approaches to dealing with piracy in East Africa with a view to determining how effective they are in curbing piracy incidents in this region.

Piracy in the East African region has played a key role in bringing modern-day piracy into the limelight. With the spate of hijacking, taking of hostages and demands for huge amounts in ransom money by the pirates, the international community has engaged with this threat in the East African region, which is an outcome of the failure of the Somali state.

Various Security Council resolutions have been adopted on the basis that these piratical acts are threats to international peace and security. Conse- quently, various naval coalitions and navies of several UN Member States, acting under the Security Council resolutions, have become involved in law enforcement operations in the combat against this international crime. In addition, there have been several prosecutions of arrested pirate suspects, a number of whom have been convicted.

Further, the Djibouti Code of Conduct provides a platform for regional cooperation in counter-piracy efforts amongst states located in the region. Are all these measures effective? By and large, though there have been a few shortcomings, as explored in this chapter, the various legal initiatives have been quite effective. The proof of this is in the significant drop in piracy attacks in the East African region last year, the lowest since 2009.