The "Other" Law of the Sea
Norris, Andrew J., Naval War College Review
The 1982 United Nations Law of the Sea Convention (UNCLOS) is, quite understandably, viewed bymany as the "be all, end all" statement and source of the law of the sea.Not only does the convention's name imply that it occupies the field, so to speak, but its sheer size, scope, ubiquity, and near-universal acceptance support such a perception. Even the United States, which has not ratified UNCLOS, considers most of its provisions to reflect, or to have achieved the status of, customary international law and thus to be binding on nations that do not specifically decline to adhere to them.
The reality, however, is that while UNCLOS provides an overall framework for legal governance of the world's oceans and codifies such important principles as freedomof the high seas and flag-state primacy, it is by no means the single, definitive statement of the law of the sea. Other significant international conventions are widely accepted and fill some gaps in the UNCLOS framework. Importantly, many of these "other" sources of the law of the sea provide coastal and port states like the United States substantial power and authority to safeguard vital safety, security, and environmental interests within their maritime zones, including the exclusive economic zone, contiguous zone, territorial sea, and internal waters. The United States has ratified many of these conventions and incorporated their provisions into domestic law.
This article will discuss and analyze aspects of this supporting array of international maritime law. It will begin by examining UNCLOS to set out its basic framework for governance of the world's oceans. It will next discuss the particulars of less widely discussed sources of the lawof the sea in the vessel safety, security, and pollution realms, and demonstrate how they add "fabric," greater fidelity, to UNCLOS's general framework. The article will then discuss specifics of the American port-state control program-the means by which the United States, as a coastal/port state, utilizes control measures made available to it by these "other" sources of the law of the sea to ensure that visiting foreign vessels adhere to minimal international standards. Finally, through an analysis of U.S. port-state control program statistics and recent domestic case law, the article will assess the effectiveness of the legal regime prescribed by this "other" law of the sea.
UNCLOS is, in many respects, an amazing treaty. Hailed as "possibly the most significant legal instrument of [the twentieth] century,"UNCLOS strikes a delicate balance between freedom of navigation and utilization of the oceans on the one hand, and on the other, sovereign rights and control over the ocean and its resources.1 It solves long-standing issues that had proved to be intractable (e.g., the allowable breadth of the territorial sea) and creates new legal regimes to reflect evolving state practice (such as the exclusive economic zone). Against a backdrop of overweening national self-interest, it achieves a remarkable degree of consensus and compromise in areas that significantly impact national sovereignty and sovereign rights, particularly over resources-matters that have historically caused nations to go to, or threaten, war.2
The first major thing UNCLOS does is establish the limits of various maritime zones and delineate who can do what in each zone, in the airspace above them, and with respect to the resources of the water column, the seabed, and the subsoil within each zone.3 UNCLOS permits a coastal state to declare a territorial sea that extends up to twelve nautical miles fromits baseline;4 it further permits claims to, and exercise of, sovereignty over all waters shoreward of the twelve-nautical-mile line.5 These waters, comprising the territorial sea and a state's internal waters (the latter term referring to all waters landward of the baseline), are collectively known as "territorial waters." The rest of the world's waters are known as "international waters" and are divided into three zones:6 a "contiguous zone,"which can extend from the outer edge of a nation's territorial sea up to twenty-four nautical miles from its baseline;7 an "exclusive economic zone" (EEZ), which can extend from the outer edge of a nation's territorial sea up to two hundred nautical miles fromits baseline;8 and the high seas,which are all waters seaward of declared EEZs. …