Understanding Maritime Territories
In international law, right of all nations to navigate, fly over, fish, and conduct scientific investigations freely on the high seas, without molestation by any nation in time of peace. This right, however, is subject to the rights of belligerents in time of war to search neutral vessels for contraband of war, non-neutral service, and break of blockade of enemy ports.
During the Middle Ages, freedom of navigation on the high seas was curtailed by maritime powers that asserted territorial sovereignty over various bodies of water. Challenges by other countries to such claims increased markedly during the 16th and 17th centuries, largely because of the growth in world trade following the discovery, exploration, and colonization of new lands.
The legal basis for claims of territorial sovereignty over the high seas was dealt a severe blow by the Dutch jurist Hugo Grotius, regarded as the father of international law. Grotius, on the basis of Roman legal principle, contended in his Mare Liberum (Free Sea, 1609) that the seas cannot constitute property because they cannot be occupied in the sense in which land can be occupied and that they are therefore free to all nations and subject to none. In the 18th century, the Dutch jurist Cornelius van Bynkershoek formulated the important principle of international law, that the waters adjoining the shores of a country within the range of artillery on land are not included in the juridical meaning of the term high seas but are under the territorial sovereignty of the contiguous country. This principle was subsequently adopted throughout the world. A distance of 3 nautical mi (5.556 km) was generally accepted, but this limit was challenged in the 20th century, many countries claiming a limit of 6 nautical mi (11.112 km) or even 12 nautical mi (22.224 km).
In the late 18th century, several attempts to curtail free navigation on the high seas were made by such powers as Great Britain, which in time of war sought to stop all trade of other nations with its enemies. A notable example of the assumption of such rights was the British blockade of western European ports during the Napoleonic Wars. Another instance was the molestation by the British of U.S. shipping on the high seas, which was one of the direct causes of the War of 1812.
Controversy over the conflicting rights of neutrals and belligerents occupied a prominent place in international affairs throughout the 19th century and the first decade of the 20th century. The Declaration of Paris of 1856, signed during the Crimean War by Britain and France and later accepted by most other powers, increased freedom of the seas for neutrals. The Declaration of London of 1909 resulted from an international naval conference convened to resolve certain questions regarding trade and contraband raised at the second Hague Conference; however, although it further defined neutral rights, it was never ratified.
During World War I, the use of submarines and aircraft demonstrated the inadequacy of international law with respect to freedom of the seas. Virtually all laws and treaties relating to the subject were disregarded as Britain strove to blockade the European continent and Germany attempted to isolate the British from the rest of the world. Interference by Germany in American trade with Britain was one of the causes of the entry of the United States into the war in 1917.
During World War II, the rights of neutrals were largely disregarded by the belligerent powers because of the desperate urgency of both sides to utilize every means of achieving victory and because of the global character of the war. The Charter of the United Nations (1945) included a provision empowering the Security Council to institute partial or total interruptions of sea communications, including blockades, when necessary to maintain or restore international peace or security (article 42).
The United Nations Conference on the Law of the Sea, convened in Geneva in 1958, defined rights of navigation and fishing on the high seas in time of peace. It approved articles defining the continental shelf and innocent passage of foreign ships through territorial waters and straits. Innocent passage was defined as maritime transit that “is not prejudicial to the peace, good order, or security of the coastal State.” Despite protracted discussion over the question of 3 mi, 6 mi, or 12 mi territorial water limits, differences remained unresolved even during the subsequent second Conference on the Law of the Sea in 1960.
The continuing disagreement over the width of territorial waters posed new threats to the freedom of the seas. In 1952 Ecuador, Chile, and Peru extended their claims to 200 nautical mi (370.4 km) and seized many foreign ships engaged in fishing without their permission. Several other nations also began to extend their offshore zones well beyond 12 nautical mi to exercise control over their fish stocks, commercial catches, and natural resources. The increasing number and intensity of international disputes resulting from such unilateral actions, as well as other maritime problems such as rights to exploit newly discovered minerals in the deeper seabed, caused the UN to begin the third Law of the Sea Conference in 1973. In 1977, with the conference still in session, the U.S. extended its fishing zone to 200 nautical mi, limiting fishing within that area to nations that gave reciprocal rights to U.S. fleets. Following this action, many nations established similar 200-mi zones, reaching fishing agreements with other countries by direct negotiation. Ordinary navigation was not restricted in these fishing zones.
A treaty adopted at the 1982 session of the Law of the Sea Conference approved a 12-nautical-mi territorial limit for coastal nations and a 200-nautical-mi “exclusive economic zone,” which includes control over fishing rights, marine environmental protection, and scientific research in that zone. The 1982 convention, not yet in force, covers the full range of ocean law subjects, including rights on the high seas and rules governing seabed minerals development beyond national jurisdiction. Along with other nations, the U.S. has endorsed most of these provisions. The United States has not signed this treaty, however, because of its objections to the rules on minerals development in the international seabed.