Everything Everywhere Daily: History, Science, Geography & More - The Law of the Sea (Encore)

Starting point is 00:00:00 The following is an encore presentation of Everything Everywhere Daily. The world as we know it is made up of 193 countries, Antarctica, and a host of smaller territories. However, between all of those places are the high seas or international waters, which are not controlled by anybody. But where do international waters begin? What can you do in international waters? And how close can you actually sail to another country? Learn more about the law of the sea, how it was created and and what it stipulates on this episode of Everything Everywhere Daily. Did you ever hear about the selfie that solved a murder or the jury that used a Ouija board to speak to a victim? If that made you pause, you need to listen to Morning Cup of Murder.

Starting point is 00:00:59 I'm Karina Bimus Durfer, and every single day on Morning Cup of Murder, I tell one chilling true crime story tied to that exact day in history. With over 2,500 episodes to binge, you'll never run out of dark stories to start your morning with. Go listen to Morning Cup of Murder wherever you get your podcasts. And remember, stay safe. When humans first started sailing on the seas, there were effectively no rules. On land, kings and emperors wrote laws that could determine what could and couldn't be done. The sea, however, was a state of anarchy.

Starting point is 00:01:36 And I do mean anarchy in the very literal sense of the word. There were no laws or rules governing what could happen on the high seas. And if there were, there were absolutely no ways to enforce them. Eventually, over time, customs and traditions were developed that covered nautical issues in maritime disputes. Becoming a sailor meant possibly years of training, which involved learning the customs and traditions developed for sailing on the high seas. I've done many episodes where some modern innovation or tradition actually began in ancient Rome. In the case of maritime law, that is not the case at all, which is actually rather odd. The Romans eventually controlled all the territories surrounding the Mediterranean Sea, yet they never

Starting point is 00:02:20 developed any explicit set of laws regarding the high seas. They did have laws regarding shipping and insurance, but that was about it. That wasn't to say that the seas weren't important to Rome, they certainly were, yet it never resulted in anything that you could call maritime law. The first thing that we can point to that would be an explicit maritime law would be during the Byzantine Empire. They created a legal framework known as the Rhodian Sea Laws, or as it was known in Greek, the Nomos Rodeon Naudocos, which was written around the year 800. We're quite certain that it existed, because there are many references to it in other texts.

Starting point is 00:02:59 Unfortunately, there are no surviving samples of the Nomos Rodeon Nautocos in existence. What we can summarize is that the Nomos Rodeon Naotocos probably dealt with shipping insurance and may have simply codified rules that the Phoenicians may have developed as early as 1,000 BC. The oldest surviving text on maritime law is the ordinamenta at Consututo Maris, which dates back to 1063. It was written in Trani and a significant trading port on the Adriatic Sea. It's a legal framework for resolving disputes and ensuring fair practices in maritime trade. There were other rules regarding shipping and maritime trade over the centuries, including the laws of Wisby, the roles of Orleron and many others.

Starting point is 00:03:43 However, none of these actually dealt with the sea itself. They just dealt with ships that sailed on the sea. Also, none of these were treaties or agreements between countries. The big changes in the legal status of the sea began during the Renaissance and the Age of Discovery. In particular, the 1494 Treaty of Tortoise, the treaty between Spain and Portugal that basically divided the world into two between the two countries. The treaty was a modification of a papal bull issued by Pope

Starting point is 00:04:15 Alexander the 6th issued the year before. The treaty created a line of demarcation about 370 leagues, or approximately 1,70 kilometers or 1,100 miles west of the Cape Verde Islands off the coast of Africa. Spain was given the rights to all lands west of the line, which included most of the Americas. Portugal was given the rights to all lands east of the line, which included parts of Africa, Asia, and Brazil. And this treaty would have been great if you were Spain or Portugal. However, absolutely everybody else in the world had no incentive to honor the division of the world between these two countries. In particular, the Dutch developed a countervailing theory about the high seas. This view of the high seas was included in the 1609 book Mare Libram by the Dutch philosopher Hugo Grotius.

Starting point is 00:05:10 Grotius argued that the sea should be treated like the air. It belonged to no one. The principle was based on the idea that, quote, Every nation is free to travel to every other nation and to trade with it. Grotius was working for the Dutch East India Company when he wrote it and was making a philosophical case for why the Dutch should be allowed to sail to the East Indies. For ships from any nation to be able to travel, he argued, they all had the right of what was called innocent passage. And here I should explain what innocent passage is because it's still a fundamental pillar of international law today. Innocent passage is nothing more than the ability to sail from one point to the next without doing anything else. It does not include fishing, stopping, firing weapons, gathering data, conducting surveys, or anything.

Starting point is 00:05:58 Grotius' argument was not universally accepted, especially not by the English. The English legal scholar John Selden wrote a response to Mayor Libram in 1635. His book, Mayor Klausum, or Close Sea, argued that parts of the sea could be appropriated and defended as easily as land. Basically, he didn't like the idea of Dutch ships fishing right off the coast of England. Selden's idea was expanded by the Dutch legal scholar Cornelius van Binkershoek in the 1709 book, D. Domino Merris, or the Dominion of the Sea. He said that the range of a country's territory into the sea was effectively the range of its best weapons. And this was later calculated

Starting point is 00:06:41 by the Italian Ferdinand Gallimi, who determined that the best guns of the era could shoot a cannonball approximately three nautical miles. This, just coincidentally, is about the same approximate distance that an adult can see to the horizon when standing on the shore. This position that most European countries came to accept in the 18th century became known as the three-mile rule. Under this rule, any coastal waters within three nautical miles of the coast were considered the sovereign territory of the country that bordered them. And this also became known as the cannon shot rule due to how simple and intuitive it was. The ideas of Grotius, Selden, and Van Binkershoek, managed to form the basis of the international order on the seas. Basically,

Starting point is 00:07:26 the high seas belonged to no one, but the seas within three nautical miles were part of the territory of the country that it was next to. There were some exceptions, in particular places where you had to sail within three nautical miles of the shore to pass through a strait. Examples of this included the Straits of Magellan at the tip of South America and the strait of Malacca between Singapore and Indonesia. The three-mile zone was the generally agreed-upon standard until the middle of the 20th century. Technical innovations made many of the past assumptions about international waters kind of moot. For starters, the distance a cannonball could fire was no longer relevant in a world with long-range artillery. More countries began to proclaim their territorial waters extending out a

Starting point is 00:08:10 longer distance. There was also suddenly an issue with oil and mineral rights in the seabed, something which had never been an issue before. Another consideration was what to do about pollution. If there was an oil spill for example, how would impacted countries be compensated and how would that all be defined? Likewise, fishing became much more intensive and the ability of ships to come and deplete a nation's fish stock became much more real. Before World War II, the League of Nations called a conference to establish an international order for the sea, but nothing came of it. Progress didn't occur until after the war and the establishment of the United Nations. In fact, this area was considered to be one of the biggest reasons for the creation of the United Nations. A series of conferences were held regarding the Law of the Sea, the first of which took place in

Starting point is 00:09:01 1958 and the second in 1960. And this resulted in several treaties which were signed in the mid-1960s. A much more comprehensive agreement was negotiated over a period of almost a decade from 1973 to 1982. The result of this was the United Nations Convention. on the law of the seas, superseding all of the other conventions. It didn't go into effect until it was ratified by its 60th country, which took place in 1994 when Guyana approved it. As of the day of this recording, 168 countries, plus the entire European Union, are parties to the treaty. The treaty spells out three different maritime zones each country has on the sea. The first is the territorial sea. This is the zone where every country has full sovereignty over the

Starting point is 00:09:52 waters closest to it. And this extends 12 nautical miles off the coast at low tide. Many countries change their three nautical mile claims in the 20th century, and 12 nautical miles was the limit that was agreed upon. Extending 24 nautical miles from the shore is called the contiguous zone. The contiguous zone is just an area outside of territorial waters where certain laws can be enforced. For example, if a ship filled with contraband or illegal migrants was heading towards the shore, it could be stopped in the contiguous zone. Likewise, action could be taken if a ship was dumping waste in the contiguous zone. The final zone, which extends out 200 nautical miles from shore, is the exclusive economic zone or EEZ. The EEZ is a much larger area

Starting point is 00:10:41 reserve for economic uses by nearby countries, such as fishing, oil and gas exploration, and undersea mining. Underlining all of these different coastal zones is the principle of freedom of the seas. Freedom of the seas allows for the previously mentioned innocent passage through territorial waters. Innocent passage applies to all vessels, including warships. Different interpretations of innocent passage have caused incidents in the past, in particular during the Cold War when one side or the other wanted to prove a point by sailing unusually close to the shore of the other country. I noted that most nations have ratified the law of the sea convention. Most of the countries that haven't ratified it are landlock, so it really doesn't matter.

Starting point is 00:11:26 But there are a few exceptions. Turkey, Syria, Venezuela, and Peru have all not ratified the treaty. However, there's also one country that hasn't ratified it that really stands out. The United States of America. The U.S. has never ratified the Law of the Sea Convention. For 40 years, it has been rejected by multiple presidential administrations and congresses, which have been controlled by both parties. The biggest argument has been that the U.S. feels that the law of the C Convention takes too much control over the economic development of oil, gas, and mineral resources out of the hands of the country. Despite not having ratified the treaty, the U.S. does de facto adhere to almost everything else in the treaty. They just haven't formally ratified it.

Starting point is 00:12:16 International law regarding the high seas is something that most people probably don't think much about, yet it is one of the most important parts of international law and international relations. Having a coherent system of international agreements that cover how the seas are used allows for much of the world's international trade and overall makes the world a much safer and prosperous place. The executive producer of Everything Everywhere Daily is Charles Daniel. The associate producers are Austin Otkin and Cameron Kiefer. My big thanks go to everyone who supports the show over on Patreon.

Starting point is 00:12:52 Your support helps make this podcast possible. And I also want to remind everyone about the community groups on Facebook and Discord. That's where everything happens that's outside the podcast. And links to those are available in the show notes. As always, if you leave a review on any major podcast app or in the above community groups, you two can have it read in the show.

Everything Everywhere Daily: History, Science, Geography & More - The Law of the Sea (Encore)

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