twentieth century, the codified law of the sea saw its emergence in multilateral
conferences: in 1924 and 1930, held by the League of Nations; and in 1958 and
1973 held by the United Nations. The 1973 conference culminated in the United
Nations Convention on the Law of the Sea (UNCLOS),
13 which is also referred to as
the ‘constitution of the oceans’ and which constitutes one of the most important
international legal instruments of the modern age. While there were significant
developments throughout the different conferences towards the contemporary
regime, for instance the establishment of the 200 nautical mile exclusive economic
zone (EEZ), the UNCLOS furthermore holds provisions that explicitly deal with
marine mammals and even more explicitly with whales (cetaceans).
In order to understand the special status of marine mammals under the UNCLOS,
let us take a brief look at the different maritime zones and the associated rights of the
coastal and other states. Briefly summarised: the UNCLOS establishes several
maritime zones, the most important of which for the purposes of this book I mention
here: internal waters; the territorial sea; the exclusive economic zone; and the high
seas. The coastal state has exclusive jurisdiction over the waters and the resources
occurring in the internal waters (e.g. rivers, estuaries, bays or lakes) and other states
need explicit permission from the coastal state to access these waters and to make use
of the abundant resources. Similarly, the territorial sea, which reaches up to 12 nautical miles (c. 22.2 km) from the coastline into the sea, is under the exclusive
jurisdiction of the coastal state. This means that in order for other states to make
use of the resources, permission of the coastal state needs to be acquired as the
coastal state enjoys full sovereignty over these waters. Contrary to internal waters,
however, the principle of ‘innocent passage’ prevails in the territorial sea. Innocent
passage is a form of the freedom of the seas and describes the passing of vessels
through the territorial sea with non-adversarial intent and maintaining peace and
order. The EEZ stretches 200 nautical miles (c. 370 km) from the baseline and
provides the coastal states with sovereign rights over the subsea and subsoil
resources. The surface waters, however, are free for other vessels to use. What
makes the determination of the EEZ particularly difficult is the existence of physical
continental shelves, which are also legally relevant. Under the UNCLOS, based on
complex criteria and determination process, a coastal state has the possibility to
justify the extension of its continental shelf up to 350 nautical miles (c. 648 km) from
the coast. It is this possibility which has led to the assertion of conflict in the Arctic
since several Arctic Ocean coastal states indeed justify their EEZs extending towards
the North Pole.
14 Be that as it may, the high seas constitute a major maritime zone,
which, as the name implies, is not associated to any coastal state. Unless there are
specific agreements in place, for instance regarding fishing or marine conservation,
the freedom of the seas prevails in the high seas, allowing all states to freely roam
and use the oceans.
With this brief overview over the maritime zones of the UNCLOS, let us now turn
towards the marine mammal provisions. Very broadly speaking and applicable for
13 United Nations Convention on the Law of the Sea, 10 Dec 1982 (1833 UNTS 3).
14 Byers (2013), pp. 107–109.
4.2 Global Regimes of Relevance
65
conferences: in 1924 and 1930, held by the League of Nations; and in 1958 and
1973 held by the United Nations. The 1973 conference culminated in the United
Nations Convention on the Law of the Sea (UNCLOS),
13 which is also referred to as
the ‘constitution of the oceans’ and which constitutes one of the most important
international legal instruments of the modern age. While there were significant
developments throughout the different conferences towards the contemporary
regime, for instance the establishment of the 200 nautical mile exclusive economic
zone (EEZ), the UNCLOS furthermore holds provisions that explicitly deal with
marine mammals and even more explicitly with whales (cetaceans).
In order to understand the special status of marine mammals under the UNCLOS,
let us take a brief look at the different maritime zones and the associated rights of the
coastal and other states. Briefly summarised: the UNCLOS establishes several
maritime zones, the most important of which for the purposes of this book I mention
here: internal waters; the territorial sea; the exclusive economic zone; and the high
seas. The coastal state has exclusive jurisdiction over the waters and the resources
occurring in the internal waters (e.g. rivers, estuaries, bays or lakes) and other states
need explicit permission from the coastal state to access these waters and to make use
of the abundant resources. Similarly, the territorial sea, which reaches up to 12 nautical miles (c. 22.2 km) from the coastline into the sea, is under the exclusive
jurisdiction of the coastal state. This means that in order for other states to make
use of the resources, permission of the coastal state needs to be acquired as the
coastal state enjoys full sovereignty over these waters. Contrary to internal waters,
however, the principle of ‘innocent passage’ prevails in the territorial sea. Innocent
passage is a form of the freedom of the seas and describes the passing of vessels
through the territorial sea with non-adversarial intent and maintaining peace and
order. The EEZ stretches 200 nautical miles (c. 370 km) from the baseline and
provides the coastal states with sovereign rights over the subsea and subsoil
resources. The surface waters, however, are free for other vessels to use. What
makes the determination of the EEZ particularly difficult is the existence of physical
continental shelves, which are also legally relevant. Under the UNCLOS, based on
complex criteria and determination process, a coastal state has the possibility to
justify the extension of its continental shelf up to 350 nautical miles (c. 648 km) from
the coast. It is this possibility which has led to the assertion of conflict in the Arctic
since several Arctic Ocean coastal states indeed justify their EEZs extending towards
the North Pole.
14 Be that as it may, the high seas constitute a major maritime zone,
which, as the name implies, is not associated to any coastal state. Unless there are
specific agreements in place, for instance regarding fishing or marine conservation,
the freedom of the seas prevails in the high seas, allowing all states to freely roam
and use the oceans.
With this brief overview over the maritime zones of the UNCLOS, let us now turn
towards the marine mammal provisions. Very broadly speaking and applicable for
13 United Nations Convention on the Law of the Sea, 10 Dec 1982 (1833 UNTS 3).
14 Byers (2013), pp. 107–109.
4.2 Global Regimes of Relevance
65