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 and 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 were the keys to power and influence. There were four ways that territory was traditionally obtained: conquest, land belonging to no one, cession, and accretion by natural means.
Under the uri possidetis jure, the decolonization 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 short run, many of these boundaries were set through colonial treaties or government. They did 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 current conflicts – such as those of the Kurds in the Near East.
The seas and navigable waterways have also been subject to international law and customs. 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 generally defined as complying with the coastal state laws, 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. There is no right of innocent passage for internal navigable waters, such as rivers and small bays, and the coastal power retains complete sovereignty over the navigation. A bay is classified as an internal waterway if the low water marks of the bay entrance do not exceed 24 nautical miles under the 1982 Convention. Suppose a violation occurs in territorial waters. In that case, the ability to enforce that violation extends to the waters, plus a “contiguous zone” extending 24 nautical miles from the baselines under the 1982 Convention.
Complicating matters were 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, licensing, and fisheries management. Additionally, the coastal state has the right to exploit the mineral, oil, and gas deposits in the continental shelf extending from its shore. If the shelf extends between two or more nations, the territory shall be split equidistantly following 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 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 violated the law within its territorial waters, a coastal state may also seize and arrest in the open sea.
As technology expanded and the deep seabed became accessible, the international community faced how to administer natural resources and claims. The 1982 Convention retained these resources as the common heritage of humankind 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. The exploitation benefited all humankind, focusing on developing nations that the exploitation was for peaceful purposes only. 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, they are being phased in over time, with limitations.
AIR & SPACE
Traditionally, the air over the governed land and territorial waters was considered sovereign territory. For its signatories, overflights are generally permitted under the 1944 Chicago Convention on International Civil Aviation.
While, in theory, airspace and 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. They required that the use be for the benefit of humankind and not subject to territorial appropriation. Strong parallels were 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 occur, common law nations will look to admiralty and law of the high seas as sources of precedent for resolving legal disputes in this area.