The last 70 years have seen a dramatic expansion of the area of geographic – truly spatial – influence exercised by nation-states. The rapid evolution of transportation technology, as well as the ever increasing demand for natural resources, expanded influence from outer space to ocean depths.
For much of the history of international relations, the ability to subjugate and control land and navigable waterways was the key to power and influence. There were four ways that territory was traditionally obtained: conquest, occupation of land belonging to no one, cession, and accretion by natural means.
Under the doctrine of uri possidetis jure, the decolonialization process provided that the new national boundaries would follow the former colonial boundary lines. While this created a relatively straightforward way to avoid conflict in the sort run, many of these boundaries were set through colonial treaty or government, and do not represent the traditional or ethnic territorial boundaries that would naturally occur absent colonial influence. The resulting application of uri possidentis created artificial boundaries, leading to the roots of some current conflicts – such as those of the Kurds in the Near East.
The seas and navigable waterways have been subject to international law and custom as well. The current standard, set in the 1982 Convention on the Law of the Sea sets territorial waters as 12 nautical miles from the low water line as charted or recognized by the coastal state. Within these territorial waters, the coastal state enjoys complete sovereignty over the air, sea and substrata. This area is subject to the innocent passage of foreign ships and warships under international law. Innocence is defined as generally complying with the laws of the coastal state, including regulations regarding fishing, espionage and the like. The 1982 Convention governs the enforcement of the rights of territorial waters, and the mere violation of a coastal state’s law, while indicative, is not solely dispositive as to the definition of innocent passage. For internal navigable waters, such as rivers and small bays, there is no right of innocent passage, and the coastal power retains full and complete sovereignty over the navigation. A bay classified as an internal waterway if the low water marks of the entrance of they bay does not exceed 24 nautical miles under the 1982 Convention. If a violation occurs in the territorial waters, the ability to enforce that violation extends to the waters, plus a “contiguous zone” extending a further 24 nautical miles from the baselines under the 1982 Convention.
Complicating matters was the discovery of offshore minerals and other natural resources. As a result, the 1982 convention extended certain economic rights into an area known as the “exclusive economic zone” of 200 nautical miles from the baselines from which the territorial sea is measured. The enforcement rights for economic violations extend into this zone, and include the enforcement of customs and duties, as well as licensing and fisheries management. Additionally, the coastal state has rights to the exploitation of the mineral and oil and gas deposits in the continental shelf extending from its shore. In the event the shelf extends between two or more nations, the territory shall be split equidistantly in accordance with the 1982 Convention.
The high seas comprise the remainder of the open ocean, and since the 15th Century, have generally been governed by the principle of res communis omnium and available to all. Each state retains jurisdiction over its own ships, and may exercise jurisdiction over foreign vessels in a few circumstances – generally if it is suspected of piracy, slave trafficking, unauthorized broadcasting, or without nationality. Ships engaged in piracy or slave trading may be seized and the crew arrested. Additionally, if in “hot pursuit” of a ship that engaged in a violation of the law within its territorial waters, a coastal state may also seize and arrest in the open sea.
As technology continued to expand, and the deep seabed became accessible, the international community has been faced with how to administer the natural resources and claims. The 1982 Convention retained these resources as the common heritage of mankind, and specified that their exploitation could only be accomplished under the aegis of the International Sea-Bed Authority. The Authority was to ensure that the exploitation was equitable, that the exploitation benefited all mankind – with particular focus on developing nations, that the exploitation was for peaceful purposes only, and that scientific research and environmental protections were included in the planning and execution. Due to the opposition of many developed nations, the implementation of these provisions did not begin until 1994, and even then, are being phased in over time, with limitations.
AIR & SPACE
Traditionally, the air over the governed land and territorial waters was considered sovereign territory. Overflights are generally permitted under the 1944 Chicago Convention on International Civil Aviation for the signatories thereto.
While in theory airspace territorial rights extend infinitely upwards, as a practical matter, the advent of satellite technology and space exploration led to the development of new provisions of international law. The “airspace” effectively stopped at the edge of outer space, and the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space and the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies became the international law regulating international interaction in space. The general provisions of these treaties prohibited the use of space as a launching area for nuclear weapons, and required that the use be for the benefit of mankind and not subject to territorial appropriation. Essentially, there were strong parallels drawn between the use and governance of outer space and the high seas. It is likely that as continued exploration and commercialization of outer space takes place, common law nations will look to admiralty and law of the high seas as sources of precedent for the resolution of legal disputes in this area.