This article describes the international law of the sea, focusing mainly on the Convention on the Law of the Sea. Important improvements in the framework of the United Nations Convention on the Law of the Sea are highlighted. The development of the law of the sea can be conceived as a tree with UNCLOS as its trunk. Its roots are historical customs, centuries old, and agreements that emerged mainly after the Second World War. Its branches are customs, agreements and soft law, which is only beginning to take shape. Six thematic areas are covered: core principles, expertise, fisheries resources, mineral resources, marine science and technology, environmental protection and dispute settlement. International maritime law is based on three principles: the principle of freedom, the principle of sovereignty and the principle of the common heritage of mankind. Traditionally, the law of the sea has been dominated by the principle of freedom and the principle of sovereignty. The French jurist R.-J. Dupuy summarized the essence of the law as follows:The sea has always been whipped by two great contrary winds: the wind from the high seas to the land is the wind of freedom; The wind from the land to the high seas carries sovereignty. The law of the sea has always been in the middle between these opposing forces.
This introduction is intended to provide policymakers, military personnel, and other interested persons with an introduction to the basic principles of the law of the sea, as they affect the security, trade, and scientific interests of the United States. To this end, it focuses on key elements of the law of the sea that affect these interests, including the provisions of the United Nations Convention on the Law of the Sea (LOSC), a very detailed and comprehensive treaty signed by 168 parties. Although the United States is not a party to the LOSC, it considers that, with some exceptions, the Convention reflects the rules of customary international law. The United States actively advocates for compliance with these rules by all States. The legal principles described in this guide raise issues that need to be addressed on an ongoing basis by policymakers, sometimes in familiar contexts and at other times due to new and unforeseen developments. The law of the sea is not static and its fundamental principles are still threatened by erosion by contrary State practices. From challenges to freedom of navigation posed by vital bottlenecks such as the Strait of Malacca and Hormuz, to the conservation of critical fish stocks, to China`s continued efforts to restrict freedom of navigation in SCS, maritime law enforcement to safeguard U.S. interests will remain an urgent national priority.
This introduction is intended to assist those entrusted with this essential responsibility. On many issues, the 1982 Convention contains precise and detailed rules (e.g. on peaceful passage through territorial waters and definition of the continental shelf), but on other issues (e.g. safety of navigation, pollution prevention and fisheries conservation and management) it provides only a framework by setting out general principles but leaving rule-making to other treaties. As regards maritime safety, detailed provisions on the safety and seaworthiness of ships, collision avoidance and crew qualifications are contained in several treaties adopted under the auspices of the International Maritime Organisation (IMO), a specialised agency of the United Nations (UN). IMO has also adopted strict emission standards for ships. Marine pollution from other sources is regulated by several regional treaties, most of which have been adopted under the auspices of the United Nations Environment Programme. The general standards for the conservation and management of fisheries in the EEZ (where most fishing activities take place) set out in the 1982 Agreement have been supplemented by non-binding guidelines contained in the Code of Conduct for Responsible Fisheries adopted by the Food and Agriculture Organisation of the United Nations in 1995. The management principles for deep-sea fishers are set out in the United Nations Fish Stocks Treaty (1995), which manages straddling fish stocks and highly migratory fish stocks, and in detailed measures adopted by several regional fisheries commissions.
