Strengthening the International Law Framework

1 Chapter 1 The Nature of the Marine Environment Beyond National Jurisdiction 1.1 Introduction From a human perspective the open ocean has always been a source of great mystique and unpredictability.1 Although some intrepid humans traversed the surface of the open oceans in vessels in earlier centuries, the majority of humankind tended to regard the sea with awe and to retreat from its elemental fury.2 Human exploration of the deep sea did not begin in earnest until the mid nineteenth century3 and it is only in recent decades that marine scientific research has begun to reveal the true physical characteristics and resource potential of the open ocean and deep seabed.4 Until the latter half of the twentieth century, human use of the oceans beyond a narrow strip of sea adjacent to the land masses was largely confined to navigation, fishing, whaling5 and from the mid nineteenth century the laying of submarine cables and pipelines for communication purposes.6 With the advent of concepts such as the continental shelf and the exclusive economic zone in the latter half of the twentieth century, coastal states extended their jurisdictional reach to a wider coastal domain for specific purposes such as resource exploitation and marine scientific research.7 A combination of factors such as the depletion of inshore fish stocks and an increase in global maritime trade is now leading to greater usage of the vast maritime area beyond 1 Jonathan Raban (ed.), The Oxford Book of the Sea (1992), 1. 2 Ibid, 432-433. 3 Sylvia Earle, Sea Change: A Message of the Oceans (1995), 21. 4 Alastair Couper (ed.), The Times Atlas and Encyclopaedia of the Sea (1990), 202-3. 5 Earle, above n. 3, 21. 6 Couper, above n. 4, 200 notes that the first successful cable was laid between England and France in 1851. 7 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3 (LOSC), Arts. 56 & 77. Protecting the Diversity of the Depths: Strengthening the International Law Framework 2 the territorial sea and exclusive economic zone limits.8 Human activities in this area of ocean, which covers approximately 50% of the world’s surface9, have expanded to include bioprospecting, exploration for deep seabed minerals, more sophisticated marine scientific research and deep sea tourism.10 This rise in human activities beyond the offshore zones of coastal states poses actual and potential threats to the physical characteristics and biodiversity of the open ocean and deep sea environments.11 Arbitrary human intrusions into this largely unexplored marine domain have the potential to harm the intricate links between complex marine ecosystems and erode components of marine biodiversity.12 Until the latter decades of the twentieth century these areas of the ocean were largely untrammelled by international regulation or any systematic form of oceans governance. This chapter will examine the juridical extent of maritime areas beyond national jurisdiction and the physical characteristics of the open ocean and deep seabed. A variety of deep sea habitats and their faunal inhabitants will be described. Actual and potential threats posed to the marine environment beyond national jurisdiction by human activities will also be considered. This discussion will provide the scientific backdrop and rationale for the protection of the marine environment beyond national jurisdiction. The theoretical basis for an analysis of the 8 WWF/ WCPA/ IUCN, Towards a Strategy for High Seas Marine Protected Areas, Proceedings of the IUCN, WCPA and WWF Experts Workshop on High Seas Marine Protected Areas, 15-17 January 2003, Malaga , Spain, 6-7. 9 Ibid, 5, n.1. 10 Ibid, 7. 11 Ibid, 6-7. 12 WWF/WCPA/IUCN, above, n. 8, 7; Claudia E. Mills & James T. Carlton, ‘Diversity: Rationale for a System of International Reserves for the Open Ocean’ (1998) 12(1) Conservation Biology, 245. Protecting the Diversity of the Depths: Strengthening the International Law Framework 3 international law framework for protection of the marine environment beyond national jurisdiction will then be considered. Figure 1.1: The High Seas (Source: IMO, http://www.imo.org/includes/blastDataonly.asp/data_id%3D8594/Raaymake rsHighSeasPaper.pdf at 28 November 2005) 1.2 The Juridical Extent of Maritime Areas Beyond National Jurisdiction Although earlier civilisations did consider the legal status of the sea, it was not until the seventeenth century that European scholars began to analyse its juridical nature in more detail. The high seas as an international law concept is generally considered to have originated in the doctrine of the freedom of the seas advocated by the Dutch jurist Hugo Grotius in his treatise, Mare Liberum, published in 1609.13 Grotius drew a distinction between the “inner sea” which was surrounded 13 D.P. O’Connell (with I.A.Shearer ed.), The International Law of the Sea, (1984), Vol. II, 792- 793; R.P. Anand, Origin and Development of the Law of the Sea (1983) 80-81; J.H.W. Verzijl, International law in Historical Perspective (1971) 31-35; United Nations Office for Ocean Affairs and the Law of the Sea (DOALOS), Navigation on the High Seas. Legislative History of Part VII, Section 1(Articles 87,89,90-94,96-98) of the United Nations Convention on the Law of the Sea (1989), 8. Protecting the Diversity of the Depths: Strengthening the International Law Framework 4 on all sides by the land and thus susceptible to occupation and the “outer sea, the ocean” which he described as “immense… infinite, bounded only by the heavens” which could neither be ‘seized nor inclosed”.14 His fundamental premise that the sea may not be subjected to the sovereignty of individual states has survived in Article 89 of the LOSC. Mare Liberum also introduced the principles of freedom of navigation and fishing which remain an integral part of the present high seas regime codified in Part VII of the LOSC.15 The content of these principles will be analysed in Chapter 2. The doctrines Grotius expounded in Mare Liberum were partially a reaction against sovereignty claims by the Western Powers of Europe to vast areas of ocean space in the interest of monopolising the trade routes to the New World and the East Indies.16 An opposing juridical position of mare clausum or the closed sea continued to be popular with British and European rulers building their colonial empires and establishing naval dominance at sea during the seventeenth and eighteenth centuries. States’ sovereignty over large areas of ocean space was defended by English jurists such as Welwood, Selden and Coke in the decades following the publication of Grotius’ Mare Liberum.17 The principles contained in Mare Liberum did not gain ascendancy until the nineteenth century when they were used to support the expansion of free trade between European countries and their distant empires.18 In jurists’ writings and state practice, however, a modified version of coastal state sovereignty over the maritime belt adjacent to land 14Hugo Grotius, The Freedom of the Seas or the Right which Belongs to the Dutch to Take Part in the East Indian Trade (1608) (trans. Ralph Van Deman Magoffin, 1916) 37. 15 Ibid, 7 & 32. 16 Verzijl, above n. 13, 30; Thomas Wemyss Fulton, The Sovereignty of the Sea (1911) 338-339. 17 Fulton, above n. 16, 352-357 & 366-375; DOALOS Navigation on the High Seas, above n. 13, 8. 18 Hersch Lauterpacht (ed.), Oppenheim’s International Law. A Treatise (1955) 585-587. Protecting the Diversity of the Depths: Strengthening the International Law Framework 5 territory developed in parallel to the doctrine of the freedom of the seas.19 The extent of a coastal state’s dominion over its adjacent waters was considered by most jurists to relate to its capacity to exercise sovereignty over these areas by means of guns or cannon.20 The three nautical mile distance which subsequently gained currency as a customary breadth for the territorial sea, was related to the maximum range of these weapons. These parallel developments in legal treatises and state practice of the maritime belt adjacent to the coastline of a state and the open or high seas, introduced the basic dichotomy in the law of the sea between areas of water subject to coastal state sovereignty or jurisdiction and the residual area of ocean space which is global commons. The juridical extent of maritime areas beyond national jurisdiction has diminished over time with the gradual expansion of coastal state jurisdiction over littoral waters and seabed adjacent to the coastline. A precise definition of the outer limit of the coastal state’s jurisdiction over its offshore maritime areas was not established until the adoption of the LOSC in 1982. Two earlier United Nations Law of the Sea Conferences had not agreed on a maximum breadth for the territorial sea.21 Article 3 of the LOSC set the maximum breadth of the territorial sea at a limit not exceeding 12 nautical miles measured from the territorial sea baselines. The LOSC also introduced the concept of the exclusive economic zone which was a sui generis offshore zone beyond and adjacent to the territorial sea 19 Verzijl, above n.13, 31; Lauterpacht, above n.18, 586; Fulton, above n. 16, 537-575. 20 Fulton, above n. 16, 549. 21 Daniel.Patrick O’Connell (with I.A. Shearer ed.), The International law of the Sea (1982), Vol. I, 163; Anand, above n. 13, 179-180; A.H. Dean, ‘The Second Geneva Conference on the Law of the Sea: The Fight for the Freedom of the Seas’ (1960) 54 American Journal of International Law 751, 776; D. Bowett, ‘The Second United Nations Conference on the Law of the Sea’ (1960) 9 International and Comparative Law Quarterly 414, 432.

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