Covering 71 per cent of the Earth’s surface, our oceans’ significance is near impossible to disregard. Indeed, more than 90 per cent of global trade is carried by sea, with over 102,300 commercial ships worldwide. A staggering 550 million people are dependent on aquaculture as a means of livelihood, and the worldwide fishing industry generates around USD $80 billion per annum accompanied with over 200 million jobs. Moreover, 30 per cent of world oil comes from offshore fields; in 2010, sea-based rigs alone produced up to 23.6 million barrels each day.

But how are our globe’s oceans governed, and who decides upon the ownership of marine resources and the management of nautical territory?  Furthermore, is such governance successful, and can maritime borders be secured effectively?

Image courtesy of Denelson83, © 2008, some rights reserved.

Image courtesy of Denelson83, © 2008, some rights reserved.

Approaching and governing a global common

The high seas and deep ocean floor have long been acknowledged as ‘global commons’. Such ‘commons’ were traditionally recognised as being remote, inaccessible, and part of the planet’s complex ecological system, and were thus beyond state jurisdiction and the rule of sovereignty; they were literally res nullius (not subject to law).

However, the res nullius principle is proving inadequate with contemporary increases in global economic and military competition, alongside technological development: questions of ownership and management are now being propelled into the international limelight. The so-called tragedy of the commons highlights an obvious dilemma: how can no single state own a common, and yet be vulnerable to its existence and responsible for its over-exploitation?

Since the 1940s, attempts have been made to re-define rule over the commons. Alternative approaches have emerged with regard to maritime governance. Most notably, the principle of common heritage was advanced in the 1970s. By placing management of the seas under United Nations rule, member-states could act as trustees for the natural environment and would preserve a system of licensing and revenue sharing when it came to maritime economic potential. Furthermore, existing sovereign borders were to be extended seawards, in an attempt to reinforce localised management and responsibility.

Solving the issue of maritime borders today

Long gone are the days when the range of a cannon shot from shore determined a state’s sovereignty over adjacent waters. Now, the United Nations Convention on the Law of the Sea (UNCLOS) acts as the defining body in maritime sovereignty. The convention, which was drawn up in 1982 after 12 years of negotiation, is one of the longest treaties in history, codifying 320 articles and 9 annexes.

Signatories of the convention are entitled to exercise exclusive sovereignty over 12 nautical miles (22km) from their shoreline. This area- known as a ‘territorial sea’- begins at the coast’s mean low-water baseline and includes the airspace above and seabed below. Within this zone, the state concerned may establish laws, but may not interfere with international shipping.

A further stretch of 12nm is established as a ‘contiguous zone’, and begins immediately after the territorial sea. Within this region, customs and laws of the sovereign state may be protected from encroachment by an external body. The state may exercise any necessary control and punishment to protect its sovereign rights.

A 200-nautical mile ‘exclusive economic zone’ (EEZ) also begins at the baseline. Within the EEZ, the coastal state has the sole right to exploration and any economic resource, but cannot prevent loitering and legal passage. When two EEZs infringe upon each other, an equidistant line is to be ‘drawn’ down the middle of the applicable territory, ideally splitting the shared waters equally. Arguably, the creation of the EEZ- which includes some 38 million square nautical miles- enables nations to more effectively manage and conserve marine resources: indeed, 99 per cent of the world’s fisheries, along with 87 per cent of the all the known and estimated offshore hydrocarbon reserves lie within this boundary.

Finally, the convention recognises the area beyond the EEZ as the ‘high seas’ or ‘international waters’. These are “open to all States, whether coastal or land-locked” and are thus beyond national jurisdiction. Interestingly, profit generated from this area of “common heritage” is to be shared amongst developing nations, according to the convention.

A practical solution?

Although hailed as a triumph in international law, UNCLOS has considerable weaknesses, and these are most obvious in the realm of enforcement. As with several other international organisations, UNCLOS’s effective operation is strongly dependent upon the laws and willingness of participating nations. Additionally, only one of three international courts that deal with maritime issues- the International Court of Justice- can actually legally enforce its decisions, to which the parties concerned have to acquiesce in advance.

The convention, which assumes that individual states would assume the responsibility of policing and prosecuting in their own waters, has also failed to solve the problem of piracy off the Horn of Africa. UNCLOS does not recognise failed states like Somalia, and thus neglects the notion of piracy in territorial seas, despite ruling it illegal in international waters. During 2009, 117 ships were hijacked within so-called Somali waters. Despite a consequent increase in naval presence, 53 ships were still hijacked in 2010, resulting in the deaths of 8 crew members.

Furthermore, UNCLOS can be easily subject to exploitation by national governments, and established borders are often ambiguous and easily criticised. Qatar, for example, attempted to out-manoeuvre ICJ jurisdiction (over a spat with Bahrain) by producing 81 historical maps which reinforced their claim to surrounding waters. The maps turned out to be intricate fakes. Bangladesh also tried to bend the rules in 2009, by claiming that a straight line boundary drawn from its concave coast was unfair. They later took India to court over the issue, asserting that an undersea sandbank further justified their claim to an oil-rich area in the Bay of Bengal.

Remarkably, more than half of the planet’s maritime borders still remain undrawn.

Hot waters off Nicaragua

An ICJ ruling on 19 November 2012 left Colombians stunned. Following the 1980 Sandinista Revolution, Nicaraguans swiftly rejected a previously endorsed 1928 treaty, and took Colombia to court in 2001. The treaty- which had granted Colombian sovereignty over the islands of the San Andrés and Providencia archipelago (which lie in the Caribbean Sea over 250 miles north of Colombia but only 120 miles east of Nicaragua)- was deemed ‘invalid’ as it was sanctioned by the now ousted Somoza dictatorship.

After 11 years of deliberation, the ICJ ruled that Colombia still had sovereignty over the islands themselves, but then went on to established an exclusive Nicaraguan EEZ that constituted a transfer of around 27,000 square miles of sea previously controlled by Colombia. Not only did this re-allocate valuable fishing rights and potential underwater oil deposits, it effectively ‘cut off’ the Colombian islands of Quitasueno and Serrana, turning them into isolated enclaves.

However, the Colombian President, Juan Manuel Santos, was in no mood to concede. On 09 September 2013, he condemned the ICJ’s ruling as being “not applicable” in the absence of a treaty, and further accused Nicaragua’s actions as being “expansionist pretensions.” This followed Colombia’s withdrawal from the Bogotá Pact- an agreement which promoted peaceful settlement of disputes through the ICJ- late the previous year. Such blatant disregard highlights weakness in the ICJ, and suggests that diplomacy and treaties still dominate over UNCLOS.

Conclusions

Overall then, it would be difficult to argue that UNCLOS has not made a significant contribution to international maritime law. Through codification and international corroboration- in the form of the UN- a clear and structured framework has been established, filling the gap which was created by the res nullius principle. Furthermore, the increased manifestation of the ICJ has helped vent quarrel towards peaceful solution, arguably diminishing the likelihood of physical conflict. However, UNCLOS is not without its weaknesses and, as we have seen with the Colombian example, diplomacy will likely continue to dominate international law if a dispute involves overlapping claims.