Law Of Sea

Law of Sea

Introduction The seas have historically performed two important functions: • first, as a medium of communication, and • secondly as a vast reservoir of resources, both living and non-living.  Grotius who elaborated the doctrine of the open seas, whereby the oceans as res commtinis were to be accessible to all nations  Mare clausum (closed sea)- 15th to 17th centuryjurist- J.Selden 04/05/16

 Why would States negotiate to a Law of Sea?  Some useful ideas from Scholars : • Balancing of Interest – • Mc Dougal and Burke – • The exclusive Interest of coastal or flag state ( e.g. Coastal fisheries or control of flag vessels on the high seas) • Inclusive interest (general) interest of all States( e.g. Freedom of navigation or high sea fishing) 04/05/16

 Gidel, Le Droit There can be false opposition: a coastal state can also be a flag state- it wants both control over its water and freedom of navigation in other’s state waters.  Reciprocity plays a role here. You propose rules you are prepared to be bound by.

Law of Sea in 20 th Century  Today, It is both codified ( existing rules in writing ) and progressive development(negotiating new rules).  Both League of Nations and UN have provided a forum for Lot of Sea, Largely through treaty making  HISTORY  League of Nations Hague codification conference(1930)  The first UN Conference on the LOS (1958)  The second UN Conference on LOS (1960)  The Third UN Conference on the LOS(1973-1982) (UNCLOS) 04/05/16

 1930 League of Nations Hague codification conference  Territorial sea debated but no treaty adopted  A majority support the idea of sovereignty over the territorial sea  However, no consensus on the breach of territorial sea  Should the old ‘cannon shot rule’ be replaced by a three, four , or six nautical mile rule?

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First UN Conference  Following the WWII , control over maritime natural resources  President Truman( UN) issues his proclamation on the continental shelf and on fisheries  Codification of LOS became an imp issue, UN International Law Commission began a project to produce draft articles on the topic  ILC works on the issue from 1949-1956 and produced its “Articles Concerning the LOS” for the UN GA.  The ILC Articles form the basis for negotiations in Geneva in 1958;(UNCLOS I) 04/05/16

 Conventions are produced on  The territorial sea and the contiguous zone  The high sea  Fishing and conservation of the living resources of the high sea  The continental shelf  As well as optional protocol concerning the compulsory settlement of disputes  One key issue was unsolved: the width of the territorial sea( However, the contiguous zone could not exceed 12 nm from baselines.) 04/05/16

UNCLOS II and UNCLOS III  Called to resolve the deadlock on the width of the territorial sea.  A proposal for a 6 mile territorial sea plus 6 mile contiguous zone, failed by one vote. UNCLOS III Several developments suggested the need for a new convention: Seabed resources (nickel, cobalt, etc) Fisheries Protection of the marine environment Decolonisation (emergence of newly independent states) 04/05/16

UNCLOS III  Tommy Koh- a constitution for the oceans  320 Articles, 9 Annexes, 167 parties  N o Reservations- accept all or none of it, no picking and choosing  The adoption of the final text was not adopted by US  Though US accepts much of UNCLOS as binding customary international law and is bound by 1958 Geneva Conventions.

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Important areas  Baseline  Internal waters  Territorial waters  Archipelagic waters  Contiguous zone  Exclusive economic zones (EEZs)  Continental shelf  Bays  Islands

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Baseline  A low water mark around the coasts of the state  Article 3 of the Geneva Convention on the Territorial Sea and Contiguous Zone in 1958 and Article 5 of the UNCLOS- low water line along the coasts  At times, it is difficult to locate the low water line which is to act as the baseline  By virtue of the 1958 Convention on the Territorial Sea and the 1982 Law of the Sea Convention, the low-water line of a low-tide elevation may now be used as a baseline for measuring the breadth of the territorial sea if it is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island

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 When a low tide elevation is situated in the overlapping area of the territorial sea of two states, both are in principle entitled to use this as part of the relevant low-water line in measuring their respective territorial sea  However it does not apply for islands  Where the coastline is deeply indented or there are numerous islands running parallel to the coast, special rules have evolved  Low tide elevation- A naturally formed area of land (rock, reef etc) surrounded by water , above water at low tide but submerged at high tide (Art 13 , UNCLOS) 04/05/16

 Anglo- Norwegian Fisheries case ICJ Rep.,1951  Skjaergaard (Fringe of Island and Rocks)  Straight baselines joining appropriate points may be employed in case of the coastlines which are deeply indented and cut into.  The system of straight lines can be applied- (Art 7)  1. straight baseline must not depart to any extent from general direction  2. sea areas lying must have sufficient close link with land domain  Economic interest must be taken into consideration  It should not be applied in a manner that it cuts off the territorial sea of another State. 04/05/16

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Internal Waters  Article 8(1) defines internal waters as waters on the landward side of the baseline of the territorial sea  The coast state enjoys the complete territorial sovereignty over the internal waters as it does over its land domain  Mostly water in a port area are part of internal waters because the baseline is usually drawn along the outer perimeter of the port  Water bodies like rivers, lakes, bay waters etc  Foreign ships do not have right to enter into port ,must obtain inward clearance  Or, bodies not considered as internal water before establishment of the system of straight baselines, and are subject to ‘ right of innocent passage’ of foreign ships 04/05/16 (Art8(2))

State Jurisdiction  It has criminal as well as civil jurisdiction over any foreign merchant ships within its territorial internal waters or docked in its ports or harbour  The warships and other non commercial govt vessels are immune from jurisdiction of costal state  A merchant ship in a foreign port or in foreign internal waters is automatically subject to local jurisdiction( unless any express agreement)  Purely disciplinarian issues (ship’s crew) not related to peace within territory – flag ship  Wildenhus case,1887, 04/05/16

Archipelagic waters  AS- it is a island state, consisting of more than one archipelago, islands are closely related  Art 46(a) AS is a state constituted wholly by one or more archipelagos and may include other islands  Water enclosed by archipelagic baselines are called as archipelagic water (Art 50)  Sovereignty of an AS extends to its AW, airspace above seabed and subsoil(including resources) (Art49)  Limitations Existing agreements with other states must be respected (art 51(1)  Traditional fishing rights and other legitimate activities of immediate neighbouring states in certain parts of AW must be recognised (Art 51(1)) 04/05/16

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 Existing submarine cables laid by other states must be respected and the maintenance and replacement of the cables must be permitted subject to due notice in the regard (art 51(2))  Ships of all states have the right to innocent passage through the AW (Art 52)  AS may designate sea lanes and air routes above AW for the continuous and expeditious passage of the foreign ships and aircrafts through the AW and the adjacent territorial sea (Art 53(1))  AS may draw straight archipelagic baselines joining the outermost points of the outermost islands and dying reefs of the archipelago

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Territorial Sea  TS is a continuous belt of even breadth (around the entire coastline of a state)  Breadth of TS( Article 3)  All states have the right to establish the breadth of the TS up to a limit of not exceeding 12nm from the baseline  Art 12- roadstead, which are normally used for loading , unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the TS , are including in the territorial sea 04/05/16

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 Delimitation between States with adjacent or opposite coasts (Art 15)- states with opposite or adjacent coasts may determine boundaries of their respective TS by means of mutual agreement.  In absence of mutual agreement, equidistant from nearest point on the baseline of respective states.  Legal Status of Territorial Sea  TS is bound to the coast to which it is naturally connected; State sovereignty over a coastal land automatically exercise sovereignty over the connecting TS  Coastal state enjoys absolute sovereignty over TS. The sovereignty extend to the airspace above as well as to the seabed and subsoil under the TS including resources (Art 7)

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 Sovereignty implies that coastal state has exclusive right to exploitation natural resources of the territorial sea including fish stock, minerals, gravels and hydrocarbons, etc  Right of Innocent Passage Imp exception to state sovereignty – Right of innocent passage of the foreign ships  Passage- (art 18) – navigation through territorial sea for Travel through the TS without entering internal waters  Proceeding to and fro from internal waters  Passage should be continuous, however, stopping and anchoring of ships is permissible if it is incidental to ordinary navigation or rendered necessary , or for the purpose of rendering assistance to persons, ships or aircrafts in distress 04/05/16

 Innocent persons  Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.  2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

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 (a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;  (b) any exercise or practice with weapons of any kind;  (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;  (d) any act of propaganda aimed at affecting the defence or security of the coastal State;  (e) the launching, landing or taking on board of any aircraft;  (f) the launching, landing or taking on board of any military device; 04/05/16

 any act of wilful and serious pollution contrary to this Convention;  any fishing activities;  the carrying out of research or survey activities;  any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;  any other activity not having a direct bearing on passage

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 Right to designate sea lanes and traffic separation schemes for passage of foreign ships through their territorial sea as may be necessary for safety of navigation (Art 22)  Right to protection( Art 25) –  Non – innocent passage, violations of any conditions or internal waters or port, suspend temporarily , the innocent passage

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 Duties of coastal states concerning innocent passage (Art 24)  Not to hamper right of innocent passage  Cant discriminate against ships of any state  Appropriate to any publicity to any danger to navigation, within territorial sea of which it has knowledge of.  Warships (only definition given in Art 29)

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State Jurisdiction  State has exclusive jurisdiction over its TS.  Foreign ships: Criminal Jurisdiction(Art 27) • Crime committed in Foreign ship- while passing TS, jurisdiction of CS will not be applied except• Consequence of crime extended to CS • Disturb the peace and good order of the CS • Assistant of local authorities of CS has been requested by master of the ship or a diplomatic or consular agent of flag state • Illicit traffic or in narcotic drugs etc 04/05/16

• If crime committed on board , a foreign ship passing through TS after leaving internal waters, CS can take any step authorized by its laws for the purpose of an arrest or investigation of such crime • Crime committed on board a foreign ship before the ship entered the TS , the concerned CS may not take steps to arrest or investigate ( unless concerned with protection and preservation of Marine environment or EEZ), CS may exercise jurisdiction

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Warship and other Govt ships for non commercial purpose  Foreign warships and other Governmental ships for non commercial purpose enjoy immunity from jurisdiction of CS  If Foreign warships fails to comply with the laws and regulations of the CS, while in its TS, CS may ask him to leave the TS immediately (Art 30)  In case of loss or damage because of non compliance of its laws and regulations , the concerned flag state incurs international responsibility for such loss (art 31)

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Islands  Art 10(1) of 1958 Convention on the Territorial Sea and Art 121(1) of the UNCLOS as a ‘ naturally formed area of land, surrounded by water , which is above water at high tide  They can have or generate a territorial sea, contiguous zone, exclusive economic zone and continental shelf where relevant( Art 121(2))  Art 121(3) ‘ rocks which cannot sustain human habitation or economic life of their own shall have no EEZ or continental shelf

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Contiguous zone  Belt of sea which is beyond and adjacent to territorial sea of a coastal state and on which CS has limited jurisdiction (like customs, immigration, sanitation etc)  Historical Development• It has its roots in the practice of some states like US and UK to extend the operation of some domestic laws, like revenue or sanitary laws, beyond the TS • Internationally acceptable rule was laid by Gidel in 1930  Breadth of CZ (Art 33(2)) The CZ may not extend beyond 24nm from the baseline from which the breadth of the TS is measured 04/05/16

 Legal Status • Unlike TS, the CZ is not naturally attached to the land territory, a coastal state has to claim it in order to avail it.  Limited State Jurisdiction • CS does not enjoy territorial sovereignty over the CZ • Although the CS may exercise limited jurisdiction to the extent necessary (Art 33(1))  Prevent infringement of customs, fiscal, immigration or sanitary laws  Punish infringement of above laws and regulations

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 Part of High Sea or EEZ • CZ as a part of High Sea o Under the 1958 Convention on TS, the CZ was considered as a part of HS (Art 24(1)) • CZ as a part of EEZ • The 1982 Convention• If CS claims CZ as well as EEZ, the CZ forms a part of the EEZ • If CS claims only CZ without claiming EEZ, the CZ will be considered as a part of the High seas

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Exclusive Economic Zone ( EEZ)  Stretch of sea beyond and adjacent to the territorial sea that the CS may claim for exercising exclusive rights (art 55)  The sovereign economic rights include rights to explore, exploit and conserve the living and nonliving resources available within the EEZ  EEZ is the latest addition to the series of maritime zones developed under the law of seas.

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 Historical Development  Art 6(1) of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas(CFCLR) recognised that a coastal state had special interest in maintenance of the productivity of the living resources in any area of the HS adjacent to its TS  Due to fast depleting of fishes of HS, states started extending the claims of exclusive fishing zones  Clash between states (1958-1982) desire to extend the limits of exclusive fishing zones and TS  1982 gave legal status to EEZ 04/05/16

 Breadth of EEZ (Art 57) • EEZ cannot extend beyond 200 nm from the baseline from which the breadth of the TS is measured  Delimitation between Opposite or Adjacent States (Art 74) • - mutual agreement to achieve equitable solution. • If fail to reach an agreement , settle the dispute according to part XV of the 1982 convention… (Will be discussed at the end…)  Legal Status• It is not attached to the land territory. The states do not enjoy ipso facto rights in EEZ, It has to claim EEZ

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Rights , Jurisdiction and Duties OF Coastal State  Exploration and Exploitation of Natural Resources (Art 56(1)(a))  Conservation and Management of Natural Resources (Art 56(1)(a))  Other activities for Economic Exploitation(Art 56(1)) (example- production of energy from water, currents, etc)  Marine Scientific Research 9Art 56 (1)(b)(iii))  Enforcement of Rules and Regulations (Art 73)  Establishment of Structures, artificial Islands(Art 56(1)(b)(i)) –(subject to navigation, marine environment etc..) 04/05/16

Rights, freedom and Duties of Other States(Art 58)  Navigation and Over flight ( Art 87)  Laying of Submarine Cables and Pipelines

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Continental Shelf

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 The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured (Art 76)  continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise

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 the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either:  Where the continental margin actually extends beyond 200 miles, geographical factors are to be taken into account in establishing the limit,  which in any event shall not exceed either 350 miles from the baselines or  100 miles from the 2,500-metre isobaths  (An imaginary surface passing through all points in a body of water which have the same depth below the surface.) 04/05/16

 Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation.  The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding 04/05/16

 The coastal State shall deposit with the SecretaryGeneral of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto

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 Rights of the coastal State over the continental shelf (Art 77) • coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources • natural resources referred here consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms • coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes(Art 81) 04/05/16

 Legal status (Art 78)  rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters  exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States

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Delimitation of the continental shelf between States with opposite or adjacent coasts (Art 83)  by agreement  If no agreement can be reached, the States concerned shall resort to the procedures provided for in Part XV

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High Sea  high seas were defined in Article 1 of the Geneva Convention on the High Seas, 1958 as all parts of the sea that were not included in the territorial sea or in the internal waters of a state.  article 86 of the 1982 Convention includes: all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a state, or in the archipelagic waters of an archipelagic state  It includes inter alia the freedoms of navigation, overflight, the laying of submarine cables and pipelines,fishing,scientific research (Art 87)

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 freedoms are to be exercised with due regard for the interests of other states in their exercise of the freedom of the high seas, (art87)  The 1963 Nuclear Test Ban Treaty prohibited the testing of nuclear weapons on the high seas as well as on land,  article 88 of the 1982 Convention provides that the high seas shall be reserved for peaceful purposes

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Jurisdiction on the High Sea  No territorial jurisdiction doesn’t mean lawlessness  Art 92 of 1982 convention – exclusive jurisdiction of flag state over ships that fly its flag  Duties of Flag state-(art 92)  Exceptions Right to visit (art 95 and 96, 110(4)and(5))  Piracy (art100-107)  Unauthorised broadcasting (art109)  Slave trade(art 99)  Collision(art 97)  Special treaty rights

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