Law of the Sea

 

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Introduction

The 1982 United Nations Convention on the Law of the Sea (Law of the Sea Convention (LOSC)) may best be described as the principal global instrument governing the full spectrum of ocean uses.  Entering into force in November 1994, the Law of the Sea Convention establishes a comprehensive legal framework for the use and protection of the sea, including related airspace, seabed, subsoil, and the marine environment.  For purposes of this narrow discussion on sovereign immunity, the Law of the Sea Convention is divided into the following categories:

Approximately 167 out of 195 independent States and countries are parties to the Law of the Sea Convention (see LOSC Fact Sheet (for a current status of the Law of the Sea Convention); see also Independent States in the World Fact Sheet (for the total count of independent States as determined by the U.S. Department of State)).  This number is expected to increase as more nations ratify, accede, and deposit their related documents with the Secretary-General of the United Nations.  In addition, while the United States is not yet a party to the Law of the Sea Convention, the United States regards many of its provisions as embodying customary international law; has actively pursued accession; and historically acts in a manner consistent with the provisions contained in the Law of the Sea Convention (See United States v. Jho, 534 F.3d 398, 406 n. 6 (5th Cir. 2008); Executive Order 13547).

Preservation the Marine Environment

Part XII of the Law of the Sea Convention provides the international basis upon which each State individually and collectively pursues protection and preservation of the marine environment.  The term “marine environment” encompasses every conceivable aspect of the marine ecosystem, including seawater, estuaries, living resources and marine life, natural resources and habitat, the atmosphere and airspace above the waters, the seabed, and the subsoil (LOSC Art. 1 ; Art. 2 ; Art. 193 ; Art. 194 ; Art. 212 ).
All States have a general obligation under the Law of the Sea Convention to protect and preserve the marine environment, including “rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.”  (LOSC Art. 192 ; Art. 194(5) ).  Article 194 specifically calls upon each State to take all measures necessary using the best practicable means at its disposal and in accordance with its capabilities to “prevent, reduce and control pollution of the marine environment from any source.”  (LOSC Art. 194(5) ).  The phrase “pollution of the marine environment” is defined as “the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.” ((LOSC Art. 1 ).

photo of a tugboat Photo 83.  1996 Tug Boat Grounding in Rhode Island waters spilling 828,000 home heating oil (NOAA Photo Library)

Disposal of waste or other materials from a ship; the release of toxic, harmful or noxious substances from or through the atmosphere or by dumping; marine mammal ship strikes; marine casualties; the spread of invasive alien species; depletion of fishery resources, and damage to natural resources and the habitat are of great concern to the international community.  To address these concerns, the Law of the Sea Convention requires each State to:

Each State is also required to cooperate with the conservation of marine mammals and cetaceans (LOSC Art. 65 ); and assess and report the potential effects of planned activities on the marine environment (LOSC Art. 206 ).  There are legal risks arising from a State’s failure to fulfill these obligations.  Article 235 of the Law of the Sea Convention provides that a State can be liable under international law for a failure to fulfill international obligations concerning the preservation of the marine environment.
There are also special rules for warships, naval auxiliaries, and other vessels owned or operated by a State and used, for the time being, only on government non-commercial service (LOSC Art. 236 ).  Under these special rules, the Law of the Sea Convention provisions governing protection and preservation of the marine environment “do not apply to any warship, naval auxiliary or other vessel owned or operated by a State and used, for the time being, only on government non-commercial service” (Id.). However, Article 236 encourages each State to ensure that such government ships act in a manner consistent, so far as reasonable and practicable, with the Law of the Sea Convention provisions governing the protection and preservation of the marine environment (Id.).  For more information on the scope of immunity extended to warships and government ships in non-commercial service, visit the discussions below on Safeguard Sovereign Immunity of Warships and Sovereign Immunity Extended to State Owned/Operated Non-Commercial Ships.
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Regulation and Control of Ship Activities

The Law of the Sea Convention divides the world’s sea into well-defined maritime zones.  These maritime zones (from furthest to nearest the coastal State) include the Area, the High Seas, the Continental Shelf, the Exclusive Economic Zone, the Contiguous Zone, the Territorial Sea, International Straits, Archipelagic Waters; and Internal Waters/Ports.  As shown in the table below, ships enjoy optimal freedom on the high seas but must increasingly yield to coastal State jurisdiction as the ship approaches a coastal State.  For information on each maritime zone visit http://www.gc.noaa.gov/gcil_maritime.html.


Coastal/Port State

Flag State (Foreign Ship)

Maritime Zone

Authority

Rights

Obligations

Area
(seabed and subsoil beyond national jurisdiction; it does not include the  waters or the air space above the waters)

  • Beyond national jurisdiction (LOSC art. 137).
  • Subject to the International Seabed Authority(LOSC art.145, 209, 215);
  • Adopt laws and regulations (which are not less effective than international rules, regulations, or procedures) to prevent, reduce, and control pollution vessels and other devices flying their flag or operating under their authority or registry (LOSC art. 209); and
  • States are required to comply and may be held liable for damages arising from a failure to comply with the LOSC. Part XI (LOSC art. 139);
  • States may carry out marine scientific research (LOSC art. 143).

High Seas
(All parts of the seas not included in the Exclusive Economic Zone, Territorial Sea, Archipelagic Waters, or Internal Waters/Portsof a State)

  • Beyond national jurisdiction (LOSC art. 89);
  • Take necessary measures to conserve living resources (LOSC art. 117); and
  • Port State investigation and enforcement of unlawful discharge beyond national jurisdiction by any vessel voluntarily within its port (LOSC art. 218)
  • Freedom of the high seas (including navigation, fishing, and freedom of scientific research) (LOSC art. 87);
  • Exclusive jurisdiction of vessel flying its flag (LOSC art.92);
  • Carry out investigation and institute proceedings (LOSC art. 94, 97).
  • Take necessary measures to conserve living resources and marine mammals (LOSC art. 117-120);
  • Ensure compliance with international rules and standards for the prevention of marine pollution from vessels (LOSC art. 217).

Continental Shelf
(seabed and subsoil of the submarine areas that may extend up to 200 nautical miles from the baselines from which the territorial sea is measured or 350 nautical upon confirmation of rights to the Commission on the Limits of the Continental Shelf)

  • Exclusive rights to explore and exploit natural resources (LOSC art. 77); and
  • Authorize and regulate drilling (LOSC art. 81)
  • See above, High Seas
  • Lay submarine cables subject to the right to take reasonable measures for the exploration of the continental shelf, exploitation of its natural resources, and prevention of pollution from pipelines (LOSC art. 79)
  • See above, High Seas

Exclusive Economic Zone
(band of water adjacent to and beyond the territorial sea that extends seaward up to 200 nautical miles from the baselines of a coastal State)

  • Explore, exploit, conserve, and manage marine natural resources, water, currents, and winds (LOSC art. 56, 61-67);
  • Jurisdiction with regard to the establishment and use of artificial islands, installations and structures; marine scientific research; and marine protection and preservation (LOSC art. 56, 60, );
  • Take measures (including boarding, arrest, judicial proceedings, and assessment of money penalties) as may be necessary to ensure compliance with laws and regulations adopted in conformity with the LOSC to conserve and manage living resources (LOSC art. 73);
  • Adopt, enforce, investigate and institute proceedings for violation of vessel pollution,  dumping, and discharge laws and regulations (LOSC art. 211, 216,   218);
  • Institute proceedings for a violation that causes or is likely to cause pollution (LOSC art. 218; 220); and
    • Adopt and enforce non-discriminatory laws for prevention of pollution from vessels in ice covered areas (LOSC art. 234).
    • Freedom of the high seas (including among others the freedom of navigation, fishing, and freedom of scientific research) giving due regard to the interests of other states (LOSC art. 58, 87);
    • Notice of violation, opportunity to post reasonable bond / security for release of arrested vessel / crew, and notice of any penalties imposed (LOSC art. 73);
    • Exercise jurisdiction and control in administrative, technical, and social matters of flag ships (LOSC art. 94)
    • No right to dump without the express prior approval of the coastal State (LOSC art. 210);
    • Ensure any vessel flying its flag or on its registry complies with international rules and standards for the prevention of marine pollution by dumping (LOSC art. 216).

    Contiguous Zone
    (band of water adjacent to and beyond the territorial sea that extends seaward up to 24 nautical miles measured from the baselines of a coastal State)

    • Exercise control necessary to prevent infringement of custom, fiscal, immigration and sanitary laws and regulations within its territorial sea (LOSC art. 34)

    Territorial Sea
    (waters extending seaward up to 12 nautical miles measured from the baselines of a coastal State)

    • Sovereignty and jurisdiction extending beyond its land territory and internal waters, the air space above, the seabed below, and subsoil (LOSC art. 2);
    • Adopt laws that do not hamper innocent passage, including navigation, marine traffic, marine conservation, fishing, pollution, custom, fiscal, immigration, and sanitary laws and regulations  (LOSC art. 19, 24, 211)
    • Take necessary steps (including pursue military action) to prevent passage that is not innocent or prevent any breach for admission granted to a foreign ship (LOSC art. 25);
    • Arrest a foreign ship or persons on board under special circumstances (LOSC art. 27; 28);
    • Adopt, enforce, investigate and institute proceedings for violation of vessel pollution, dumping, and discharge laws and regulations (LOSC art. 211, 216,  218);
    • Conduct physical inspection of certificates, records, or other documents that a foreign vessel is required to carry (LOSC art. 226);
    • Institute proceedings for a violation that causes or is likely to cause pollution (LOSC art. 218; 220);
    • Take administrative measures to prevent an unseaworthy vessel that threatens damage to the marine environment from sailing except to the nearest appropriate repair yard (LOSC art. 219);
    • Impose money penalties (LOSC art. 230)
    • Innocent passage (continuous and expeditious, without entering internal waters or calling at a roadstead or port facility and without threatening the peace, good order or security of the coastal State) (LOSC art. 17-19)
    • Refrain from engaging in activities that are prejudicial to the peace, good order, or security of a coastal State.  The activities prohibited in the territorial sea include: military activities and weapon exercises; any activity contrary to the coastal State’s custom, fiscal, immigration, or sanitary laws and regulations; willful and serious pollution; fishing, research and survey activities; interfering with communication systems, facilities, or installations of a coastal State ; and engaging in any other activity that does not have a direct bearing on passage through the territorial sea (LOSC art. 19);
    • Comply with the coastal State’s navigation, marine traffic, marine conservation, fishing, pollution, custom, fiscal, immigration, and sanitary laws and regulations  (LOSC art. 19, 21, 22, 211);
    • No right to dump without the express prior approval of the coastal State (LOSC art. 210);
    • Ensure any vessel flying its flag or on its registry complies with international rules and standards for the prevention of marine pollution by dumping (LOSC art. 216).

    International Straits
    (straits used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone; it also includes both straits which at some point overlap by the territorial seas of the bordering States)

    • Sovereignty and jurisdiction subject to LOSC provisions governing straits used for international navigation and other rules of international law (LOSC art. 34);
    • May take appropriate enforcement measures against any foreign ship that has violated its navigation, pollution prevention, fishing, customs, fiscal, immigration, and sanitary laws and regulations causing or threatening major damage to the marine environment (LOSC art. 233)
    • Transit passage, except where there exists a similarly convenient route through the high seas or exclusive economic zone seaward of an island and its mainland bordering the strait (LOSC art. 38);
    • Innocent passage which is not subject to suspension (LOSC art. 45)

    Archipelagic Waters
    (waters enclosed by the archipelagic baselines drawn in accordance with LOSC art. 47)

    • Exclusive sovereignty and jurisdiction subject only to existing agreements, traditional fishing rights, and existing submarine cables laid by other States (LOSC art. 49, LOSC art. 51);
    • Temporarily suspend innocent passage for the protection of national security (LOSC art. 52(2)).
    • Innocent passage (LOSC art. 52);
    • Archipelagic sea lanes passage (LOSC art. 53).
    • Receive public notice of known dangers within area of transit passage.

    Internal Waters/Ports
    (waters on the landward side of the baseline from which the territorial sea is measured)

    • Exclusive jurisdiction and control;
    • Take necessary steps (including pursue military action) to prevent breach of the conditions for admission granted to a foreign ship (LOSC art. 25);
    • Establish requirements for the prevention and control of marine pollution as a condition of entry (LOSC art. 211);
    • Undertake investigation of pollution discharge (LOSC art. 218);
    • Conduct physical inspection of certificates, records, or other documents that a foreign vessel is required to carry (LOSC art. 226);
    • Institute proceedings for a violation that causes or is likely to cause pollution (LOSC art. 218; 220);
    • Take administrative measures to prevent an unseaworthy vessel that threatens damage to the marine environment from sailing except to the nearest appropriate repair yard (LOSC art. 219);
    • Impose money penalties (LOSC art. 230)
    • Entry by admission only, subject to conditions set by the coastal State (LOSC art. 25(2);
    • Subject to the full panoply of legislative, administrative, judicial, and jurisdictional powers of a coastal State for illicit acts committed by crew members.

    COASTAL STATE AUTHORITY AND THE RIGHTS AND OBLIGATIONS OF A FOREIGN SHIP IN VARIOUS ZONES

    STATES — Protect and preserve the marine environment including “rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.”  (LOSC Art. 192; Art. 194(5)).
    — Take measures necessary using the best practicable means at its disposal and in accordance with its capabilities to “prevent, reduce and control pollution of the marine environment from any source,” particularly pollution from any ship (LOSC Art. 194(3)(b); Art. 211).
    Note:  Provisions governing the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, or other vessel owned or operated by a State and used in government non-commercial service.  However, government ships must act in a manner consistent, as far as is reasonable and practicable, with the Law of the Sea Convention (LOSC Art. 236).

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    Safeguard Sovereign Immunity of Warships

    A warship and naval auxiliary (collectively called “warship”) are special classes of vessels exempt from many the Law of the Sea Convention requirements (LOSC art. 32, 236).  The Law of the Sea Convention defines a “warship” as a “ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under armed forces discipline.” (LOSC art. 29).  A frigate, training vessel of a nation, tanker, nuclear powered ship, and submarine are a few examples of vessels afforded immunity as warships under the Law of the Sea Convention (LOSC art. 20, 22, and 23; see also The “Ara Libertad” Case (Argentina v. Ghana), Case No. 20, International Tribunal for the Law of the Sea, Order of 15 December 2012, Judges R. Wolfrum and J.-P Cot).
    The Law of the Sea Convention safeguards the sovereign immunity of such government ships from interference by authorities other than the flag State (LOSC Art. 32, 95, 236).  In practical terms, this means a warship and its crew are not subject to boarding, inspection, investigation, detention, arrest, or other enforcement, disciplinary, or judicial measures by authorities other than the flag State (LOSC Art. 97).  The immunity of a warship from coastal State jurisdiction has long been recognized by the international community and the United States as customary international law (see e.g., Agreement between Argentina and Ghana, Permanent Court of Arbitration, Sept. 27, 2013); The Republic v. High Court Ghana (Comm. Div.) Accra, No. J5/10/2013 (Supreme Court of Ghana, Ex Parte Order, Jun. 20, 2013); Schooner Exchange v. McFadden,11 U.S. (7 Cranch) 116 (1812)).  In doing so, the international community and the United States recognizes that exercising jurisdiction and enforcement against military assets, such as a warship, carries inherent risks of generating military conflict or undermining the national security and independence of a State.  Accordingly, sovereign immunity is extended by the coastal State to a visiting foreign nation as a matter of public policy, international comity, and grace (The Republic v. High Court Ghana (Comm. Div.) Accra, No. J5/10/2013 (Supreme Court of Ghana, Ex Parte Order, Jun. 20, 2013);); Schooner Exchange v. McFadden,11 U.S. (7 Cranch) 116)).
    Although a warship is generally immune from coastal State jurisdiction, there are exceptions.  A warship exercising the right of innocent passage through the sovereign waters — particularly, the territorial sea, archipelagic waters, and straits —  of a coastal State is required to respect the navigation, custom, fiscal, immigration, and sanitary laws and regulations of the coastal state (LOSC Art. 19, 45, 52).  During innocent passage, a warship is prohibited from threatening or using force against the coastal State, engaging in weapon practice/exercise, collecting military intelligence or carrying out marine research or survey activities, distributing propaganda, launching or taking on board aircraft or any military device, fishing, or committing any act of willful or serious pollution in the territorial sea (LOSC Art. 19). Failure of the warship to comply with the laws of a coastal State or committing another action considered to be prejudicial to peace and security can expose the flag State to international responsibility for resulting damage or loss and provides the coastal State with remedies that may include (at minimum) requiring the warship to leave sovereign waters or (at most) legitimately using force for purposes of self-defense (LOSC Art. 25, 31).  The criteria governing the legitimate use of force and self-defense are set forth in the International Court of Justice, Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua  v. United States) (Merits), Jun. 27, 1986, at 165-67.
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    Sovereign Immunity Extended to State Owned/Operated Non-Commercial Ships

    The Law of the Sea Convention further extends sovereign immunity from coastal State jurisdiction to any ship owned or operated by a State and used only on government non-commercial service (LOSC Art. 32 , 96 , 236 ).  Like warships, the Law of the Sea Convention provisions governing the protection and preservation of the marine environment do not apply to any vessel owned or operated by a State and used, for the time being, only on government non-commercial service (LOSC Art. 236 ).  State owned / operated non-commercial ships are also subject to the same responsibilities, obligations and potential liabilities (for non-compliance) as warships (LOSC Art. 32 , 96 , 236 ).
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    Universally Apply the Doctrine of Restrictive Immunity to Merchant Ships

    A foreign merchant ship and government ship operated for commercial purposes (collectively “merchant ship”) are not entitled to the same immunity that is extended to a warship or other government ship used in non-commercial service.  However, a foreign merchant ship is not completely without protection.  Specifically, a coastal State may only exercise criminal jurisdiction, arrest, or conduct an investigation of a crime if a crime is committed on the ship during innocent passage through the territorial sea and:

    A coastal State is also restricted from stopping, diverting, or otherwise exercising civil jurisdiction on a person on board a foreign merchant ship pursuant to Article 28 of the Law of the Sea Convention.
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    Additional reference information:

    Relevant Cases:
         United States

    International

    Foreign Court

    Related pages: