Textbook of Maritime Medicine

5.1       The International Law of the Sea

High seas are the waters outside national jurisdiction, like oceans and other waters including some estuaries and rivers and even lakes.

Ships sailing the high seas are generally under the jurisdiction of the flag state; however, when a ship is involved in certain criminal acts, such as piracy, any nation can exercise jurisdiction under the doctrine of hostis humani generis (legal term of act).

Freedom of navigation is established through different international conventions, like the Copenhagen Convention of 1857, that opened access to the Baltic by abolishing the Sound Dues and making the Danish Straits an international waterway free to all military and commercial shipping. Several conventions have opened the Bosporus and Dardanelles to shipping. The latest, the Montreux Convention Regarding the Regime of the Turkish Straits maintains the straits' status as an international waterway.

Even rivers have been opened and given the status of international waters, like yhe Danube River, which was internationalized so that landlocked Austria, Hungary and former Czechoslovakia (now only Slovakia) has access to the Danube, and southern Germany (Germany itself is not landlocked, having access to both the North Sea and Baltic Sea) could have secure access to the Black Sea.

The establishement of some sort of jursidiction in international waters has been a slow process, from the earliest “freedom of the seas concept” in the 17^th century. In 1930 the League of Nations tried to establish an international treaty for the regulation of transboundary and international matters at sea, without success.

It was not until the UN Conferences on the Law of the Sea, a series of conferences held in 1956 (UNCLOS I – Geneva), 1960 (UNCLOS II - Geneva) and 1973 (UNCLOS III – New York), which resulted in a series of conventions, that the world eventually took a considerable step forward in establishing jurisdiction of international waters, through the United Nations Convention on the Law of the Sea (UNCLOS). This convention defines the rights and responsibilities of nations in their use of the world’s oceans. The convention came into force 16^th of November 1994, one year after Guyana became the 60^th state to sign the treaty. It is now regarded as a codification of customary international law on the issue.

Two international institutions were created by this treaty. The International Seabed Authority (ISA)[1] (Headquarters: Kingston, Jamaica) is the organization through which States Parties to the Convention organize and control activities in the Area, particularly with view to administering the resources of the Area.

The second institution is the International Tribunal for the Law of the Sea[2] (Headquarters: Hamburg, Germany).  This is one of the four different ways of dealing with disputes between nations (Part XV of the Convention), the other three being the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII to the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII to the Convention.

UNCLOS is the supereminent convention at sea. All other conventions comply with these regulations.

Maritime medicine or maritime health topics are not directly mentioned in the convention, but derive partly from Article 98 in the Convention, “Duty to render Assistance”.

Article 98 states that

“Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose”[3].

Although a total of 157 nations have ratified the UNCLOS, not all nations have ratified the convention, even if they have signed it. Some other has not signed at all, the most important of them being the United States of America, which for several reasons has chosen not to sign the UNCLOS. In 2008 the US gave indications that they wanted to start negotiations which could end up in ratification. The process is continuing under the Obama administration (2009), hopefully leading to a ratification soon.

[1] http://www.isa.org.jm/ 

[2] http://www.itlos.org/ 

[3] UN Law of the Sea, Article 98