Law of the Sea

Territorial Sea is established up to 12 miles from the baseline of the coast. This is an extension of the land and the coastal state exerts full sovereignty over the area. It is an area of national jurisdiction. Also establishes a contiguous zone where the coastal State may exercise the control necessary to (1) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations (2) punish infringement of the above laws and regulations committed within its territory or territorial sea.

The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. 1 Compare and contrast the powers of coastal states in internal waters, the territorial sea and the contiguous zone. Internal Waters are assimilated into the territory of the state. A coastal state may exercise jurisdiction over foreign ships within its internal waters to enforce its laws, although the judicial authorities of the flag state may also act where crimes have occurred on board the ship. There exists therefore a concurrent jurisdiction. 1] A merchant vessel in a foreign port or in foreign internal waters is automatically subject to local jurisdiction unless the matter was concerning general conduct of the crew where it did not threaten peace and security it would be left, through courtesy to the flag state. In the case of a warship however the authorisation of the captain or of the flag state is necessary before the coastal state may exercise its jurisdiction. Due to the status of warships as a direct arm of the sovereign if the flag state. Contiguous Zone – Historically some states have claimed to exercise rights over particular zones of the high seas.

This has diluted the principle of the freedom of the high seas. There have been numerous reasons for such extended authority including (1) prevention of infringement on customs, immigration or sanitary laws (2) to conserve fishing stock (3) to enable coastal state to have exclusive or principal rights. It enables coastal states to protect something without extending their territorial sea and is a compromise measure. These zones are not attached to the land territory in law. Concept was introduced in 1930 by French writer Gidel and it appeared in the Convention on the Territorial Sea.

Sanitary and immigration enforcement is justifiable by the 1958 Convention but protection of customs has long been established. Contiguous zones were restricted to within 12 miles so a state which had claimed a 12 mile territorial sea were exempt from this. This coupled with the restriction of jurisdiction to customs, sanitary and immigration maters is the reason for the decline in the relevance of contiguous zones in recent years. However, based on the 1982 Convention a state may claim up to 24 miles in order to preserve the concept.

The 1982 Convention also changed the status of the contiguous zone from being part of the high seas to part of the EEZ. Territorial Sea comes within the sovereignty of a coastal state also extending to the airspace. These were drafted in the 1982 Convention and represent customary international law. Width of the territorial sea is set at 12 miles. Coastal state may also exclude foreign nationals and vessels from fishing within its territorial sea and, subject to agreements to the contrary, from coastal trading and reserve these activities for its own citizens.

Coastal state also has extensive powers relating to security and customs matters. Jurisdiction over foreign ships when in passage through territorial sea, the coastal state may only exercise its criminal jurisdiction as regards the arrest of any person or the investigation of any matter connected with a crime committed on board ship in defined situations. These are cited in Article 27(1) of the 1982 Convention, reaffirming Article 19(1) of the 1958 Convention. (1) if the consequences of the crime extend to the coastal state. 2) if the crime is of a kind likely to disturb the peace of the coastal state (3) if the assistance of the local authorities has been requested (4) if such measures are necessary for the suppression of illicit traffic in drugs. If the ship is travelling through the territorial sea having left internal waters then the coastal state may act in any manner within its laws. Authorities cannot act if the crime was committed before entering the territorial sea and the ship has not been in internal waters.

Article 28 of the 1982 Convention states that coastal states must not divert a foreign ship for the purpose of exercising civil jurisdiction in relation to a person on board ship, nor levy execution against or arrest the ship, unless obligations are involved which were assumed by the ship. Warships and other governmental ships are immune from the sovereignty of the coastal states altogether. 1 What rights of passage, if any, do vessels of other nations enjoy in the territorial sea or internal waters? Internal Waters – there does not exist any right of innocent passage from which the shipping of other states may benefit.

The exception to this rule is where the straight baselines enclose as internal waters what had been previous territorial waters. Territorial Sea it is taken as custom that foreign merchant ships may travel unhindered through these zones. It is open to interpretation particularly that the passage must be ‘innocent’. Article 14 of the 1958 Convention said that states must make known dangers in territorial seas, must not hinder innocent passage, and may not impose charges for this passage unless in exchange for services. Passage ceases to be innocent here when it “is prejudicial to the peace, good order or security of the coastal state. Where passage is not innocent the coastal state may take steps to prevent it and may act to stall any approach to internal waters. Coastal states can temporarily suspend passage where security is threatened or at risk. Developed in the 1982 Convention Article 19(2). A key provision may have altered the burden of proof from coastal state to the ship to prove that passage is innocent. There is debate over the passage of warships in peacetime however it seems that former key protester Russia has agreed these provisions also cover warships as does the United States. 1 What are the major rights and powers of a coastal state in its EEZ?

What rights do other states enjoy there? Development – developed from claims regarding fishing zones. Marks a compromise between those states seeking a 200 mile territorial sea (due to controversy over fishing zones) and those wishing a more restricted system of coastal state power. 1958 Convention reached no agreement on fishing zones and Article 24 does not give exclusive fishing rights in the contiguous zone. Still states have claimed these zones. European Fisheries Convention (1964) provided that the coastal state has exclusive right to fish and jurisdiction in matters of fisheries within 6 miles from baseline of the territorial sea.

Between 6-12 miles other parties may fish there providing they had previously. In view of the practice of many states in accepting at one time or another the existence of a 12 mile fishing zone that can be seen as customary international law. [2] 1970 Iceland claimed 50 mile exclusive zone. UK/Germany referred to ICJ and the Court did not answer the question of legality. They held that Iceland’s extension was not binding as no acquiescence. Court emphasised the notion of preferential rights which it regarded as customary international law. 3] Developments took place in 1982 and Article 55 of the Convention provides that the EEZ is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established under the Convention. Legal Situation Today [4] – EEZ starts from the outer limit of the territorial sea but shall not extend beyond 200 nautical miles (Article 57) from the baselines. EEZ would be no more than 188 miles when 12 mile territorial sea existed. Where distance between neighboring states is less than 400 miles then delimitation becomes necessary.

Article 58 establishes rights of other states in the EEZ and are basically the high seas freedom of navigation, over flight and the laying of submarine cables and pipelines. States should have regard in this though for the laws of the coastal state. Article 60(2) provides than in the EEZ the coastal state has jurisdiction to apply customs law and regulations in respect of structures and artificial islands. The International Tribunal for the Law of the Sea took the view in the M/V Saiga Case that a coastal state was not competent to apply customs laws in other parts.

ICJ declared EEZ to be part of customary law in the Libya/Malta Continental Shelf Case. 1 What is meant by the concept of exclusive flag state jurisdiction of the high seas? On the high seas the maintenance of order has rested upon the concept of the nationality of the ship, and the jurisdiction of the flag state. The flag state will enforce the rules and regulations not only of its own municipal law but of international law also. Ship without a flag is deprived of many benefits and rights. Each state must show reason for allowing a ship to register under its flag and their must exist a genuine link (Article 91, UNCLOS).

To prevent people using flags for tax or wage purposes. Lotus case and then the 1958 and 1982 Conventions state clearly that the only authority exerted upon ships on the high seas is that of the flag state. What comprises a genuine link? Issue arose in the Iran-Iraq war with UK/US re-flagging Kuwaiti tankers. Held they did not violate law and the Tribunal held in the M/V Saiga Case that it was to the jurisdiction of the flag state to grant nationality to the ship. Tribunal stated here that ships may sail only under one flag and if they flew more than one were stateless and stateless vessels may be boarded and seized on the high seas. What are the major exceptions to it? (1) Right of visit is where warships are allowed to approach to ascertain the nationality of ships. Does not give a right to board but merely to identify. Warship must be careful as they are liable for damages. May only be undertaken if ship is engaged in piracy, broadcasting, stateless, engaged in slave trading. (2) Piracy is illegal acts committed for private ends which excludes hijacking. Any state may arrest and seize in this case and the courts of that state may decide what action to take regarding the vessel and property subject to the rights of third parties who have acted in good faith. 3) Slave Trade should be prevented in accordance with Article 99 of the 1982 Convention. Every state should take measures and punish the transport of slaves authorised to fly its flag and prevent the use of its flag for such purposes in future. Any slave taking refuge on board any ship is ipso facto free. (4) Unauthorised broadcasting stated in Article 109 of the 1982 Convention. Any person engaged in this can be prosecuted by the flag state of the ship, the state of registry of the installation, the state of which the person is a national or any state where the transmission can be received or where authorised communication is disrupted. 5) Hot Pursuit is a principle designed to ensure that a vessel which has infringed the rules of a coastal state cannot escape punishment by fleeing to the high seas. Coastal state may extend jurisdiction as stated in Article 111 of the 1982 Convention. Pursuit must begin when the ship or one of its boats is in internal waters or territorial sea and may only continue uninterrupted. If the pursuit begins in the contiguous zone then it must violate the rights of protection which the zone was established for. Pursuit must come after a visible demand to stop and can only be done by government vessels.

Right to pursuit ceases when the ship enters its own territorial waters of those of a third state. Use of force in this area must be avoided if possible and if necessary be proportional and reasonable. (6) Collisions was overruled from the Lotus Case by the Article 11 of the High Seas Convention. Proceedings may only be taken against the master or other persons in the service of the ship by authorities of either the flag state or the state to which the person is a national. Reaffirmed in Article 97 of the 1982 Convention. 7) Treaty Rights often exist permitting each others warships to exercise certain powers of visit and search as regards vessels flying the flags of the signatories. (8) Pollution by Article 24 of the High Seas Convention. States had a duty to adopt measures as necessary for the conservation of the living resources of the high seas. International Convention relating to Intervention on the High Seas in Cases of Oil Pollution allows ships to act “as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil. Developed because of the Torrey Canyon incident where UK aircraft bombed a ship spilling oil on UK/French coastline which had run aground. 1982 Convention leaves jurisdiction to the flag state but imposes mandatory minimums. (9) Straddling Stocks. Article 56(1) of the 1982 Convention provides that coastal states have sovereign rights over their EEZs for the purpose of exploiting, conserving and managing fish stocks. These are accompanied by duties as to conservation and managements measures to ensure that the fish stocks are not endangered.

Where the stock exists across two EEZs the states must co-ordinate and ensure the conservation and development of such stocks. Definitions 1. Contiguous Zone – and zone near by, adjacent to or neighboring the territorial sea. 2. Internal Waters – deemed to be such parts of the sea as are not either the high seas or relevant zones or the territorial sea, are accordingly classed as appertaining to the land territory of the coastal state. They can be, for example, lakes, rivers, harbours and are waters found on the landward side of the baselines from which the width of the territorial and other zones is measured. 3.

EEZ – Exclusive Economic Zone 4. Baselines – the basis for measuring the breadth of the territorial sea. The baseline is the low water mark around the coasts of the state. Traditional principle and emphasised in both 1958 and 1982 Declarations. 5. Delimitation – where states cannot have a territorial sea of 12 miles due to proximity of baselines. ——————————————————————— [1]R v Anderson (1868) the Court of Criminal Appeal in the UK declared that an American national who had committed manslaughter on a British ship in French internal waters was subject to jurisdiction by all three states.

Wildenhus Case the US Supreme Court held that American courts had jurisdiction to try a crew member of a Belgian vessel for the murder of another Belgian national when the ship was docked in Jersey. [2] International Court remarked as such in the Fisheries Jurisdiction cases especially since the 1960 Geneva Conference. Stated that “the extension of that fishing zone up to a 12 mile limit from the baselines appears now to be generally accepted. ” [3] Where the state was said to be “in a situation of special dependence on coastal fisheries. ” [4] Provided in Article 55 of the 1982 Convention