2.3: National and International Law Applied to Oceans

Before we look at the various categories of ocean resources, it is important to realize that the oceans and their resources are not owned by individuals or corporations, as is much of Earth’s land area and its corresponding resources. Instead, ocean areas adjacent to coasts are owned by governments, and ocean areas remote from land are not owned at all. To understand why this is true and what it means, we must review a little about the history of national and international laws as they relate to the sea.

Throughout most of history, the oceans have not been considered territory that could be claimed or owned. Indeed, until the 1600s, there was little thought or deliberation on the legal status of the oceans or the ownership of its resources. Individuals and nations were generally free to travel and fish anywhere in the oceans. In 1672, however, the British declared that they would exercise control over a territorial sea that extended 5.6 km (in British units, 1 league or 3 nautical miles) from the coastline. This distance corresponded roughly to the range of shore-based cannons. The 5.6-km territorial sea became commonly accepted as the standard for most nations and was formally accepted by the League of Nations in 1930. The remainder of the oceans outside the territorial seas, called the high seas, was considered to belong to no one, and in general, all nations were free to use and exploit high-seas resources.

The Truman Proclamation

The 5.6-km territorial sea remained almost universally accepted until after World War II, when President Harry Truman proclaimed in 1945 that “the exercise of jurisdiction over the natural resources of the subsoil and seabed of the continental shelf by the contiguous nation is reasonable and just” and that “the U.S. regards the natural resources of the subsoil and seabed of the continental shelf beneath the high seas, but contiguous to the coasts of the U.S., subject to its jurisdiction and control.” This proclamation, known as the Truman Proclamation on the Continental Shelf, was motivated by the “long-range worldwide need for new sources of petroleum and other minerals.” The continental shelf was not defined in the proclamation. However, in a statement accompanying the proclamation, it was described as the land that is contiguous to the continent and covered by no more than 183 m (100 fathoms) of water. The 183-m depth was arbitrary because the continental shelf cannot be defined by a single depth (Chap. 4).

The Truman Proclamation caused a controversy and motivated a series of unilateral decisions by various coastal nations to claim the resources under their own coastal oceans. However, there was no uniformity in the claims. Individual nations claimed jurisdiction over different widths of ocean off their coasts. For example, nations along the west coast of South America, where the continental shelf is very narrow (Chap. 4), claimed the ocean resources to 370 km (200 nautical miles) from shore, approximately 66 times the distance of previously defined territorial seas. These nations went beyond the U.S. proclamation in another important way too: they extended their sovereignty over the entire 370-km zone, whereas the Truman Proclamation claimed jurisdiction only over the resources on or under the seafloor. Thus, these other nations were claiming ownership of the waters and fisheries in this zone, and the right to control any access to the zone by other nations’ vessels.

“Law of the Sea” Conferences

In 1958 and again in 1960, the United Nations convened a conference on the “Law of the Sea.” The conferences were intended to establish international uniformity in the ownership and access rights of nations to the resources of the oceans. The two conferences, attended by more than 80 nations, led to the adoption of several conventions. The conventions established a zone 22 km (12 nautical miles) wide within which nations had jurisdiction over fishery resources, and they affirmed that the “high seas” area beyond that zone was free for all nations to use for navigation, fishing, and overflight.

The conventions also attempted to define the right of coastal nations to own the seabed and sub-seabed minerals on the continental shelf. The continental shelf was defined as the area beyond the territorial sea out to a depth of 200 m or “beyond that limit, to where the depth of the superadjacent waters admits of the exploitation of natural resources.” This definition was ambiguous. Coastal nations could claim the minerals out to a depth at which they could be exploited, and the size of this zone would expand as exploitation technologies improved. At the time, exploitation of seabed resources at depths greater than 200 m was considered unlikely. However, oil-drilling technology improved rapidly after 1960, and the U.S. was soon drilling in waters more than 200 m deep off California and more than 185 km (100 nautical miles) offshore in the Gulf of America (Golfo de México).

The potential mineral resources of the deep oceans, particularly manganese nodules (Chap. 6), were first recognized during the 1960s. By the late 1960s, it was clear that more needed to be done to define and determine the rights of nations to use the oceans, particularly the rights to own and to exploit ocean mineral resources.

In 1967, the Maltese ambassador to the United Nations, Dr. Arvid Pardo, proposed that another Law of the Sea Conference be held. Pardo suggested a concept for a treaty that history may recognize as a critical turning point in the development of human civilization. His suggestion was that the ocean floor outside the zones of national jurisdiction should be reserved for peaceful uses, and that its resources should become the “common heritage of mankind.” Pardo suggested that money generated from the exploitation of these resources be used for the benefit of less developed nations.

The common heritage principle has subsequently been applied to other global resources, including the atmosphere, Antarctica, tropical rain forests, and ocean biodiversity. It is now an important basis for wide-ranging and growing international cooperation among nations. The common heritage principle was a major catalyst for the growing global understanding that the Earth’s natural resources belong to all its peoples. The essence of the principle is that all nations have rights and responsibilities to protect the global environment and to use its resources wisely.

The Law of the Sea Treaty

In response to Pardo’s call, the United Nations convened the Third United Nations Law of the Sea Conference in 1973. The conference met many times over the next 9 years. Finally, in 1982, the 151 participating nations adopted a new Convention on the Law of the Sea (commonly referred to as the “Law of the Sea Treaty”) by a vote of 130 to 4, with 17 abstentions. The U.S. was among the four nations that voted against adoption, even though many of the Treaty provisions were originally written or supported by the U.S. delegation. The U.S. declared that it would not sign or ratify the Treaty, because it did not agree with the ocean mining provisions, although it would follow many other individual provisions. Abstaining nations included the Soviet Union, Great Britain, and West Germany. As of 2023, there are 169 nations that have signed and 151 nations plus the European Union have both signed and ratified the Treaty. The U.S. is the only major nation who has not ratified the Treaty. The U.S. signed the Treaty in 1994 but the U.S. Senate has consistently refused to ratify it despite being urged to do so by several Presidents. The ratification would be necessary for the U.S. to formally join the Treaty organization. However, the U.S. does recognize the Treaty as general international law and abides by most of its provisions.

Since 1982, the Law of the Sea Treaty has been the basis for numerous laws written by many nations, including the U.S., about their individual rights to the oceans and ocean resources. Many provisions of the Treaty are now widely accepted, and the Treaty itself was ratified by the required number of 60 nations and became fully effective in November 1994. The principal provisions of the Law of the Sea Treaty can be summarized as follows. 

A territorial sea of 12 nautical miles (22.25 km) was established, within which each individual coastal nation has full sovereign rights to all resources and to controlling access by foreign nationals. (Some nations, including Peru, Ecuador, Somalia, and the Philippines still claim territorial seas that extend to 200 nautical miles, despite the Treaty.)

1. An exclusive economic zone (EEZ) was established outside the territorial sea. The EEZ normally extends out to 200 nautical miles (370 km), but exclusive rights to the sea bottom and resources below the bottom (but not the water column) can extend as far as 350 nautical miles (649 km) to the edge of the continental shelf where the shelf extends beyond 200 nautical miles. The edge of the continental shelf is defined by the Treaty in geological terms, but in a way that is complicated and difficult to interpret in some areas. Within its EEZ, the coastal nation has jurisdiction over mineral resources, fishing, and pollution, and it may exercise control over access to the zone for scientific research.
2. Complicated procedures were established for drawing ocean boundaries of EEZs between nations that are closer to each other than 400 nautical miles (740 km), or whose coastlines meet in complex ways.
3. The right of free and “innocent” passage was guaranteed for all vessels outside the territorial seas and through straits used for international navigation that are within a territorial sea (straits narrower than 24 nautical miles, or 44.5 km).
4. Complicated rules were established for exploiting mineral resources from high-seas areas outside the EEZs. All such exploitation would be regulated by a new International Seabed Authority (ISA). Any nation or private concern wanting to extract minerals from the high-seas areas would have to obtain a permit from the ISA to mine a given site. In return for the permit, the nation or private concern would provide its mining technology to the “Enterprise,” a mining organization set up within the ISA. The Enterprise would mine a separate site that would be paired with the permit site. Revenue from the permit site would go to the permittee, whereas revenue from the Enterprise site would be divided among the developing nations.

The Treaty did not include precisely defined procedures and rules for technology transfer to the Enterprise or for the disbursement of Enterprise profits among the developing nations. Those and all other decisions of the ISA would require unanimous approval of all nations party to the Treaty. Unanimous consent of all the nations is virtually impossible to achieve, especially when resources and profits are at stake. Therefore, this provision was felt by many to destroy any reasonable chance that the ISA could succeed. Nations that voted no or abstained when the Law of the Sea Treaty was approved included most of the nations that were interested in deep-ocean mining of manganese nodules. No mining has yet been done under ISA auspices, partly because deep-ocean mining may not yet be economical. The ISA has granted numerous contracts for exploration (but not production) at sites including sites in the eastern equatorial Pacific Ocean and established protocols for monitoring the environmental effects of mining and test mining has been initiated. However, ISA has stated it will permit no production mining until it has finalized its mining regulations and has set a target date of 2025 for completing these regulations.

Exclusive Economic Zones and Extended Continental Shelf Rights

The Law of the Sea Treaty has exerted considerable influence over the actions of the world’s nations. Most significantly, the EEZ concept is now almost universally accepted. Under the initial 200-nautical-mile EEZ definition, the total area placed under the control of the various nations was approximately 128•10⁶ km², or about 35.8% of the world ocean (Fig. 2-9).

Figure 2-9 Exclusive economic zones (EEZs) of the U.S. and other countries. This map shows how large the U.S. EEZ is and how much of it is associated with Alaska and Hawaii, as well as various Pacific and Caribbean islands that are not among the current 50 states.

However, the Treaty allowed nations to claim continental shelf beyond 200 nm as part of their EEZ. The Treaty established a geologically based definition of continental shelf for these claims. The rules of how this definition should be applied were not adopted until 1999, and they were very complex and open to interpretation. Nations were required to provide extensive data and evidence to define where the seafloor descending from the landmass reaches the relatively flat ocean bottom. This location is almost impossible to define or measure precisely. In addition, nations could claim undersea mountains and ridges if they are “continental appendages.” Again it is virtually impossible to precisely define and demonstrate this connection. 

Since the Treaty entered into force in 1994 many nations have claimed EEZs beyond 200 nautical miles where their continental shelf extends beyond this line, as the Treaty allows. As a result about 138•10⁶ km², (about 38% of the world ocean) are currently designated as EEZ, although some claims are still unsettled. The U.S. has a large EEZ, the second largest of any country (behind France). The U.S. EEZ is large not only because of the lengthy Atlantic, Pacific, and Gulf of America (Golfo de México) coastlines of the contiguous states, but because of the vast additional EEZ areas contributed by Alaska, Hawaii, Puerto Rico, the U.S. Virgin Islands, and the various U.S. Pacific protectorates and islands, including American Samoa and Guam (Fig. 2-9).

The U.S. EEZ encompasses an area of approximately 11.3•10⁶ km², which is larger than the nation’s (9.8•10⁶ km²) land area. However, the U.S. EEZ could have been larger if the U.S. had been able to claim its continental shelf beyond 200 nautical miles as other nations have done. A claim could not be filed by the U.S. as the U.S. still has not ratified the Treaty and therefore does not belong to the Treaty organization. However, the U.S. EEZ does contain many of the world’s most productive fisheries and probably a large proportion of the ocean’s mineral wealth. 

The EEZ areas associated with islands are often very large. A single tiny atoll remote from any other island can command an EEZ of more than 0.2•10⁶ km², an area somewhat larger than the state of California. Ownership of such a large area is the real reason for many territorial disputes over the ownership of islands that formerly were considered inconsequential. For example, the war between Great Britain and Argentina over the Falkland Islands in 1982 was motivated by the resources in the islands’ EEZ. A dispute still continues between Japan and Russia over the Kuril Islands north of Japan. Probably the best example of an EEZ-motivated sovereignty dispute is the case of the South China Sea’s Spratly Islands, which various nations claim to own. Although these tiny islands are inconsequential aside from the ocean resources that they command, various islands of the group are claimed by three or four nations (Fig. 2-10). Each of the claimant nations has stationed troops on one or more of the Spratly Islands, China has constructed military facilities on several of the contested islands, and tension often runs very high.

Figure 2-10 Boundary disputes in the South China Sea. Nations claiming ownership of one or more of the Spratly Islands include the Philippines, Vietnam, China, and Malaysia.

Sovereignty disputes over islands are not the only evidence of the importance of the EEZs. Many island nations, especially those in the Pacific, are extremely concerned about the possible reduction of their EEZs if sea level continues to rise, as predicted. In some locations, such as the Seychelle Islands in the Indian Ocean, a sea-level rise of only a few tens of centimeters would submerge low-lying islands, each of which commands an enormous area of EEZ. Even if sea level does not rise, the smallest islands may disappear through erosion. China claims sovereignty over a number of tiny islands in the South China Sea that are remote from any other island and the mainland. Many of these islands rise to only a few tens of centimeters above sea level, and they have essentially no economic value other than the up to 0.25 million km2 of EEZ that each commands. China has committed large sums of money to dredge and fill and construct ports and airports and even military bases on a number of islands, yet wave erosion could soon eliminate some or all of these islands. The Chinese development on these disputed islands aims to further China’s claim of sovereignty despite international court legal rulings that have already denied these sovereignty claims. While China’s main motivation may be its claim of sovereignty of these islands and the accompanying EEZ, it also hopes to protect the island from disappearing due to sea level change. However, under the Law of the Sea Treaty, it is questionable whether such artificial means to preserve an island from sinking, and so retain its EEZ, would be accepted by international law.

The Treaty of the High Seas

While the Law of the Sea Treaty addressed the ownership of the mineral resources of the seabed of the high seas (all ocean outside of EEZs) it did not address the biological or other resources of the ocean waters of these high seas. In September of 2023, after several years of meetings, an addendum to the Law of the Sea Treaty formally titled the “Agreement under the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction” generally shortened to the “Treaty of the High Seas” or BBNJ agreement, was adopted. By October of 2023 it had been signed by 82 countries, including the U.S. The Treaty will enter into force when 60 nations have both signed and ratified it. 

The Treaty of the High Seas establishes an authority, similar to the authority that controls mining in the high seas area, to ensure that the benefits of marine genetic resources (e.g. drugs produced from marine animals) are shared under the “common heritage of mankind” principle. The International Seabed Authority (ISA) has already established guidelines for conducting impact assessments in the high seas, and a framework for establishing Regional Environmental Management Plans under the original Law of the Sea Treaty deep-sea mining provisions. While the addition of the Treaty of the High Seas represents the first attempt to provide protection and conservation for ocean ecosystems in high seas areas beyond those where seabed mining may occur, it does not address ownership of marine biological resources or fishing management in high seas areas. Rather it leaves this controversial subject to the existing patchwork of international fisheries management laws that largely apply to single species and not to ecosystem diversity and sustainability as a whole.