Beyond the Shoreline: An Overview of State Sovereignty and Jurisdiction in Law Of The Sea

INTRODUCTION

“[The Law of the Sea] … protects our sovereignty… well before we would have to resort to any use of force.” [1]

One of the most fundamental concepts of International Law is state sovereignty and jurisdiction, in which maritime disputes have been instrumental in defining jurisdiction over the sea waters and resources between the states. Ever since the adoption of the United Convention on Law of the Sea (UNCLOS), in 1982 [2], there has been an international legal framework governing disputes and states being able to assert and protect their rights over their waters.

Now with the globalizing world oceans/seas serve an important purpose and contested space for trade, commerce, energy, and geopolitics, which has led to disputes over maritime sovereignty and jurisdiction, constantly evolving.

The above-mentioned quote was by James A. Winnefeld Jr., during the Senate Foreign Relations Committee (SFRC) hearing on the Law of the Sea Convention (LOTS), 2012 [3]. It certainly captures and underscores the preventive nature of the law of the sea, implying that UNCLOS provides for states to assert and protect their rights over maritime territories through peaceful settlement without the use of force.

HISTORICAL BACKGROUND OF Law Of The Sea

The laws governing maritime in the earlier times were through customary practices between nations. The concept of “freedom of seas” by Grotius was prevalent, implying the seas were open for all nations[4]. However, over the years, coastal states became more assertive as they began to consider the adjacent waters to be in their exclusive control, leading to maritime disputes. Then emerged the concept of the “canon shot rule”, where a state’s rights and jurisdiction were limited to 3 miles from the state’s coastline[5].

The need for more comprehensive legal regulation emerged during the 19th and 20th centuries, and various disputes gave rise to UNCLOS in 1982. Even before the existence of UNCLOS, landmark cases shaped the historical aspect of maritime disputes concerning jurisdiction and sovereignty.

• In the Anglo-Norwegian Fisheries case, in 1935, Norway enacted a decree through a system of straight baselines (connecting outer points of islands and reefs) establishing their sovereignty over their inland waters and gaining exclusive fishing rights. The UK challenged before the ICJ that Norway’s system of baselines is not valid under international as it was longer than 10 NM. ICJ eventually held that the system was valid considering the geography of Norway’s coast, which has small islands and inlets.

LAW OF THE SEAS – MARITIME ZONES

1. Territorial Sea –

The territorial sea is the inland or territorial waters of a coastal state, which is 12 Nautical Miles (NM) from the coastal state’s baseline as specified in Article 3 of UNCLOS, where that particular state has exclusive and full sovereignty over this zone. The territorial sea also includes the space above i.e., airspace) and the space below like the seabed and subsoil of that territorial water.

• Provided the complete sovereignty, foreign states still have the right to innocent passage, through the territorial sea, but are subject to be in “peace, good order, and security” of the coastal state.

2. Contiguous Zone –

A contiguous zone extends 24 NM from the baseline as stated under Article 33 of UNCLOS, where states have the power to “prevent and punish” in case of infringement or violation committed within its territory or territorial sea regarding matters of immigration, customs, and fiscal.

3. Exclusive Economic Zone (EEZ) –

The breadth of EEZ extends up to 200 NM from the baseline as specified in Article 57 of the UNCLOS. Coastal states in this zone have exclusive rights to exploit natural resources, which include living and non-living in the water, seabed, and subsoil. Additionally, they also have the right to regulate artificial islands, and marine environments for their protection and research purposes.

• Other states be they coastal or land-locked have rights to navigate, overflight, and lay submarine cables & pipelines, but are subject to international laws and regulations (Article 58).

4. Continental Shelf –

The continental shelf extends from the coastal state’s baseline to the “outer edge of the continental margin” or up to 200 NM, whichever is more as stated under Article 76.  The shelf consists of the seabed and subsoil of the submarine areas. In certain instances, it can extend beyond 200 NM, but cannot exceed 350 NM.

• Coastal states exercise their sovereign rights to explore and exploit the natural resources (Article 77), and have the right to regulate drilling on this shelf (Article 81).
• In the North Sea Continental Shelf Case, the ICJ held that the rights of coastal states constitute a continuation or extension of its land territory into and under the sea exist as by virtue of its sovereignty over the land.[6]

5. High Sea –

The high sea is part that is not included in the internal waters of the state and is beyond the natural jurisdiction (Article 86) and so is considered to be international waters. The high seas are governed by the principle of “freedom of seas” and so are free & a common heritage of mankind, therefore cannot be exclusively enjoyed by any particular state.

• In one of the very first cases, France v. Turkey (S.S Lotus case), here S Lotus a French steamship collided with a Turkish vessel on the high seas resulting in the death of Turkish nationals. Owing to this, the authorities of Turkey arrested the French officer for the collusion. The question raised was does Turkey had jurisdiction to make the arrest, as the incident happened on the high seas.
• This case was in the year 1927, the Permanent Court of International Justice, held that Turkey had jurisdiction to arrest the officer[7]. This brought in the lotus principle, where states can exercise their sovereignty over high seas as long as it is not a prohibitive rule in International Law and the “vessels on the high sea are subject to no authority except that of the state whose flag the fly”.

But there exist certain exceptions to this rule of exclusive jurisdiction to flag state, wherein,

• A warship has the right to visit a foreign merchant vessel on reasonable grounds of suspicion regarding its nationality Also, the right to search and seizure in case of sea piracy (Article 110).
• Right to pursue and seize a foreign vessel if it has infringed the coastal state’s laws (Article 111).

6. Area –

The area is referred to as the seabed and ocean floor beyond the limits of national jurisdiction and is known as the “common heritage of mankind” (Article 136). This zone cannot be claimed by any state implying that sovereignty over the Area or its sources is not to be appropriate by any state. (Article 137). Given the fact it is common to mankind, the resources and benefits from its exploitation are to be shared equitably by the states.

CURRENT LEGAL DEVELOPMENTS

In recent times, one dispute that has continued to raise concerns for decades in the international regime is the South China Sea dispute, between China, Philippines, Vietnam, Taiwan, Brunei, and Malaysia involving territorial claims of islands, reefs, and other resources. China continues to assert its exclusive right over 90% of the disputed waters, basing its claims on the “nine-dash line”.

However other countries claim their rights over the Spratly Islands based on the UNCLOS’s rule on the EEZ of 200 NM[8]. This disputed water becomes crucial owing to its marine resources and the increased trade navigation through this route.

Given the 2016 arbitral award rejected China’s claims, but still tensions arise even in 2024,

• Wherein, The Philippines has taken a measure by approving the Maritime Zones Act to assert its sovereignty in the region, in line with the 2016 ruling of the Hague Tribunal. This move has led to increased tensions with China, which considers this act a violation of international law and its territorial sovereignty [9].
• Also, the near-collision incident in August 2024, has further strained relations, leading to diplomatic fallout and calls for bilateral negotiations. The international community, including the EU and the US, has expressed concerns and emphasized the importance of adhering to international laws and freedom of navigation[10].

Another important and most concerning issue is the Sea level rise, where there is an increase in the ocean’s height corresponding to land [11]. This is occurring owing to many factors, but especially due to climate change resulting in the melting of glaciers and ice sheets, which in turn expands the ocean.

• Recently, Tuvalu’s PM, in September 2024, urged the members of the UN to support the move for “permanent recognition of its maritime boundaries and statehood” given the situation of rising sea levels. This is because Tuvalu is facing issues over the rising sea levels for the past three decades[12].

Significant Maritime Law Case Studies

Territorial Waters and EEZ Disputes

Philippines v. China (South China Sea Arbitration, 2016)

The Philippines initiated arbitration proceedings against China in 2013 regarding maritime entitlements in the South China Sea. The landmark case challenged China’s “nine-dash line” claim. The Permanent Court of Arbitration (PCA) ruled that China’s historical claims had no legal basis under UNCLOS. Specifically, the tribunal found that none of the Spratly Islands qualified as islands under Article 121(3), therefore not generating an EEZ. The ruling demonstrated how UNCLOS provisions apply to complex territorial disputes and established precedents for interpreting maritime features’ legal status.

Somalia v. Kenya (Maritime Delimitation Case, 2021)

This case involved a dispute over maritime boundary delimitation in the Indian Ocean. Somalia claimed Kenya’s boundary declaration infringed upon its potential maritime entitlements. The ICJ’s ruling largely favored Somalia’s position, establishing a new maritime boundary that affected approximately 100,000 square kilometers of territory containing significant oil and gas deposits. The case illustrated the application of equidistance principles in maritime boundary delimitation and highlighted the economic implications of maritime disputes.

Continental Shelf Rights

Bangladesh v. Myanmar (Bay of Bengal Case, 2012)

The International Tribunal for the Law of the Sea (ITLOS) made its first maritime boundary delimitation decision in this case. The tribunal addressed complex geological features in the Bay of Bengal and established precedents for determining continental shelf boundaries beyond 200 nautical miles. The ruling demonstrated how scientific evidence regarding seabed morphology influences legal determinations of continental shelf rights.

Nicaragua v. Colombia (Territorial and Maritime Dispute, 2012)

The ICJ addressed both territorial sovereignty over islands and maritime delimitation. The court recognized Colombia’s sovereignty over disputed islands but significantly reduced its maritime entitlements. This case exemplified the interaction between territorial sovereignty and maritime zone determination, particularly regarding the effect of small islands on maritime boundaries.

Environmental Protection and Resource Management

Southern Bluefin Tuna Cases (1999)

Australia and New Zealand brought action against Japan regarding conservation of southern bluefin tuna stocks. The case highlighted UNCLOS provisions on fisheries management and demonstrated the balance between resource exploitation rights and conservation obligations. ITLOS prescribed provisional measures requiring parties to avoid aggravating the dispute while seeking scientific consensus on sustainable catch limits.

MOX Plant Case (Ireland v. United Kingdom, 2001)

Ireland initiated proceedings regarding the UK’s authorization of a nuclear fuel reprocessing plant. The case illustrated UNCLOS provisions on marine environmental protection and the precautionary principle. ITLOS prescribed provisional measures requiring cooperation and information exchange between parties, demonstrating how environmental concerns intersect with maritime rights.

Freedom of Navigation

M/V “Norstar” Case (Panama v. Italy, 2019)

ITLOS addressed Italy’s arrest of a Panamanian vessel engaged in offshore bunkering. The tribunal clarified the scope of freedom of navigation on the high seas and the limits of coastal state jurisdiction. The ruling established important precedents regarding state interference with foreign vessels beyond territorial waters.

ARA Libertad Case (Argentina v. Ghana, 2012)

This case involved Ghana’s detention of an Argentine naval training vessel. ITLOS ordered the vessel’s release, affirming the principle of sovereign immunity for warships. The case demonstrated the interaction between maritime law and sovereign immunity principles.

DISPUTE RESOLUTION MECHANISM 

The international legal framework for resolving maritime disputes requires dedicated attention. UNCLOS provides multiple mechanisms for dispute resolution, including the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), and arbitral tribunals. These mechanisms have proven crucial in maintaining international maritime order and preventing escalation of territorial disputes. The process of selecting appropriate forums, the binding nature of decisions, and the enforcement mechanisms available all warrant detailed examination.

MARITIME SECURITY AND MODERN CHALLENGES 

Contemporary maritime security extends beyond traditional territorial disputes to encompass new threats and challenges. Piracy in critical maritime chokepoints, terrorist activities at sea, illegal fishing operations, and environmental crimes present complex challenges to the international legal framework. The intersection of maritime law with cybersecurity, particularly in protecting critical maritime infrastructure and vessel navigation systems, represents an emerging area requiring legal attention. Additionally, the rise of autonomous vessels raises novel questions about liability and jurisdiction under existing maritime law.

ENVIRONMENTAL PROTECTION FRAMEWORK 

Maritime environmental protection deserves expanded coverage, particularly given increasing concerns about ocean pollution and marine ecosystem degradation. UNCLOS provisions regarding environmental protection must be examined alongside other international environmental agreements. Special attention should be paid to regulations governing deep-sea mining, marine pollution prevention, and the protection of endangered marine species. The legal framework for addressing climate change impacts on maritime boundaries and island nations requires particular emphasis.

ECONOMIC IMPLICATIONS OF MARITIME LAW 

The economic dimension of maritime law significantly influences international relations and policy decisions. A comprehensive analysis should examine how maritime zones affect global trade routes, resource exploitation rights, and economic development opportunities for coastal states. The impact of exclusive economic zones on fishing rights, offshore energy development, and seabed mining activities requires detailed examination. Additionally, the economic implications of maritime boundary disputes on international investment and regional development deserve attention.

TECHNOLOGICAL ADVANCEMENTS AND LEGAL ADAPTATION

The rapid advancement of technology in maritime operations necessitates examination of legal framework adaptation. Modern surveillance capabilities, satellite technology, and digital navigation systems have transformed how states monitor and enforce their maritime rights. The legal implications of these technological developments, particularly regarding privacy rights, data sharing, and evidence in maritime disputes, warrant detailed analysis. The framework must evolve to address challenges posed by emerging technologies while maintaining traditional maritime law principles.

REGIONAL COOPERATION FRAMEWORKS

Regional approaches to maritime governance deserve expanded coverage. Various regional agreements and organizations complement UNCLOS in managing maritime affairs. Analysis of successful regional cooperation models, such as the European Union’s maritime policy or ASEAN’s approach to maritime issues, provides valuable insights for developing effective maritime governance frameworks. The role of regional fisheries management organizations and other specialized bodies in implementing international maritime law requires examination.

INDIGENOUS RIGHTS AND MARITIME LAW 

The intersection of indigenous rights with maritime law represents an important contemporary issue. Many coastal indigenous communities maintain traditional maritime rights and practices that predate modern maritime law. The legal framework for protecting these rights while adhering to international maritime law requires careful analysis. Case studies of successful integration of indigenous maritime rights with national and international legal frameworks would provide valuable insights.

FUTURE CHALLENGES AND ADAPTIONS

The evolution of maritime law must address emerging challenges. Climate change impacts on maritime boundaries, new technologies in maritime operations, and changing patterns of maritime resource exploitation require forward-looking legal frameworks. The development of legal responses to these challenges, including mechanisms for adjusting maritime boundaries due to sea level rise and frameworks for managing newly accessible Arctic shipping routes, deserves detailed examination.

[1] Admiral James A. Winnefeld Jr: Joint Chiefs of Staff, Vice Chairman.

[2] U.N. Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994).

[3] AMERICAN SECURITY PROJECT, https://www.americansecurityproject.org/the-law-of-the-sea-convention-key-quotations/, (last visited Dec. 9, 2024).

[4] OLL, https://oll.libertyfund.org/pages/grotius-the-freedom-of-the-seas, (last visited Dec. 9, 2024).

[5] MTECC, https://mtecc.com.au/the-cannon-shot-rule/, (last visited Dec. 9, 2024).

[6] Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands, ICJ Rep. (1969) 3.

[7] France v. Turkey, P.C.I.J. (ser. A) No. 10 (1927).

[8] BBC, https://www.bbc.com/news/world-asia-pacific-13748349, (last visited, Dec. 9, 2024).

[9] SOUTH CHINA MORNING POST, https://www.scmp.com/week-asia/politics/article/3273541/philippines-turns-maritime-law-legal-teeth-against-china, (last visited, Dec. 10, 2024).

[10] ICLG,  https://iclg.com/news/21390-china-philippines-dispute-tests-limits-of-maritime-law, (last visited, Dec. 10, 2024).

[11]WHOI, https://www.whoi.edu/know-your-ocean/ocean-topics/climate-weather/sea-level-rise/, (last visited, Dec. 10, 2024).

[12]REUTERS, https://www.reuters.com/investigations/sinking-tuvalu-fights-keep-maritime-boundaries-sea-levels-rise-2024-09-24/, (last visited, Dec. 10, 2024).