The Master Mariner

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This page introduces the main features of the basis of maritime regulation on the high seas: UNCLOS. It describes elements of the Third United Nations Convention on the Law of the Sea relating to ships trading internationally.

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Introduction to UNCLOS: a constitution for the seas

The doctrine of freedom of the seas has long governed the oceans. Under this principle, while national jurisdictions are restricted to a belt of the sea surrounding state coastlines, beyond this, the oceans are accessible to all and the property of none.

By the middle of the twentieth century, however, technological, social and geopolitical pressures motivated nations to secure their claims to offshore resources.

In 1945, reacting in part to pressure from domestic oil interests, the United States unilaterally declared jurisdiction over all natural resources on the United States continental shelf. This signalled the first significant challenge to the freedom of the seas, and predictably, other nations followed suit and began securing and exploiting ocean resources.

Although it was a time of economic promise, it was also a time of increased risks. The growing size and complexity of ships, trails of pollution from supertankers and rising tensions over conflicting claims to resources conspired to motivate the international community to formalise their rights and responsibilities.

The Third United Nations Conference on the Law of the Sea was convened between 1973 and 1982 and came into force on 16th November 1994.

The resulting international treaty came to be known as UNCLOS III (hereafter referred to as UNCLOS), the aim of which was a more stable world order, promotion of the better use and management of ocean resources and ultimately, harmony between states.

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#UNCLOS has been likened to 'A Constitution for the Oceans'. We are proud to preside over the 30th Meeting of States Parties to the UNCLOS (#SPLOS). Important decisions were made, including the adoption of the budget for the International Tribunal for the Law of the Sea. pic.twitter.com/lhhwELTTfs

— Singapore Mission UN (@SingaporeUN) December 9, 2020

What is UNCLOS?

The convention established the limits of various sea areas measured from a defined sea baseline.

It put in place universal obligations for protecting the marine environment and freedom of scientific research on the high seas. The International Seabed Authority, an organisation based in Kingston, Jamaica which is armed with a legal framework for regulating the exploitation of mineral resources on seabeds beyond national jurisdictions, was also created.

Landlocked states were given the right to access to and from the sea without taxation of traffic by transit states.

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To whom does UNCLOS primarily apply?

UNCLOS regulates the conduct of nations and applies primarily to states.

UNCLOS is relevant to the ship's master, as it defines the right of innocent passage for ships moving through territorial waters and transit passage through international straits.

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Sea areas provided for by UNCLOS

The sea areas are:

1. internal waters
2. territorial waters
3. contiguous zone
4. exclusive economic zone (EEZ)
5. continental shelf
6. archipelagic waters.

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What are the internal waters?

Internal waters and waterways fall on the landward side of the baseline and belong to the state's territory. Coastal states are free to pass regulations as they deem appropriate for exploring and exploiting any resource.

Internal waters are considered secure as foreign vessels have no automatic right of innocent passage within internal waters and cannot enter them without clearance from the coastal state.

By entering the internal waters of a coastal state, the ship's master agrees to be bound by the jurisdiction of that state, particularly about criminal matters.

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What are Territorial waters?

Territorial waters extend out to twelve nautical miles from the baseline. As with internal waters, the coastal state can pass laws concerning these waters, regulate their use and exploit any of their resources.

Foreign vessels are permitted the right of innocent passage through any territorial waters. Coastal nations can, however, temporarily suspend innocent passage if deemed essential to ensure its security.

When moving through territorial waters, the ship's master is subject to the legislation concerning the following aspects of their conduct:

• safety of navigation
• collision avoidance
• protection of navigation aids, cables and pipelines
• enforcement of fisheries protection
• protection of the marine environment
• customs and immigration.

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What is the Contiguous zone?

The contiguous zone extends a further twelve nautical miles beyond the limit of the territorial waters.

Provided any infringement of national laws originates within the state's territory or territorial waters, in this zone, the coastal state can regulate the four specific areas of customs, taxation, immigration and pollution in this zone.

This makes the contiguous zone a hot pursuit area.

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What is the Exclusive Economic Zone (EEZ)?

A coastal state's EEZ extends two hundred nautical miles from its baseline.

Within this zone, coastal states have sole exploitation rights over all natural resources.

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What is the Continental shelf?

The continental shelf is defined as the natural extension of the land territory of a continent.

Coastal states have the exclusive right to harvest mineral and non-living material from their continental shelf and exercise complete control over living resources attached to the continental shelf.

Creatures living in the column of water above the seabed do not fall within the exclusive control of the coastal state.

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What are Archipelagic waters?

An archipelagic state is composed mainly of islands that form an archipelago. Such conditions include Fiji, Indonesia, Papua New Guinea, the Bahamas and the Philippines.

UNCLOS III defines how these states can draw their territorial borders.

The baseline is drawn between the outermost points of the outer islands, and all waters falling within this baseline are designated archipelagic waters. As with internal waters, island states have full sovereignty over these waters. However, the difference is that foreign vessels have the right of innocent passage through archipelagic waters, as they do in territorial waters.

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What is an 'innocent passage'?

UNCLOS III defines innocent passage as the passage of a vessel passes through coastal states' waters under the following three conditions:

• the vessel is undertaking an expeditious passage
• the passage is conducted in a continuous manner
• the passage that is not "prejudicial to the peace, good order or security" of the coastal state.

In contrast, fishing, polluting and military operations are not considered innocent passage.

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What is 'hot pursuit'?

Hot pursuit of a foreign ship may be undertaken when the coastal state authorities have reasonable grounds to believe that the ship has violated its laws. The pursuit is justified if the chase begins when the foreign ship is within any of the following sea areas:

• Internal waters
• Archipelagic waters
• Territorial sea
• Contiguous zone of the pursuing state.

Hot pursuit may only continue outside territorial seas or contiguous zones if they have yet to be interrupted.

The right of hot pursuit ceases as soon as the pursued vessel enters the territorial sea of its state or a third state.

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On this Day in 1982, The #UnitedNations Convention on the Law of the Sea (#UNCLOS) was signed. The Convention aims, among other things, to solve territorial waters and fishery issues by setting the Exclusive Economic Zones (#EEZs). These issues are still ongoing nowadays in Europe. pic.twitter.com/huLkz1m41S

— Finabel (@FinabelEAIC) December 10, 2020

How is UNCLOS relevant to the ship’s master?

While intended primarily to regulate the relationship between nations, UNCLOS is directly relevant to the master.

This is because the ship's master exercises some of the rights and duties enshrined in UNCLOS on behalf of the ship’s flag state. These include:

• • freedom of navigation, which ensures that the high seas are open to all states
  • rights of navigation, which ensure that even landlocked states are entitled to register ships under their flag
  • ships sailing under the flag of a state are subject to its exclusive jurisdiction while on the high seas
  • penal jurisdiction concerning matters of collision or navigational incidents on the high seas, including withdrawal of the master’s certificate of competency following such incidents, is the sole preserve of the flag state.
  • The master's duty to render assistance with all speed to any person in danger of being lost is also enshrined in UNCLOS.

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