Law of the Sea | Public International Law - CLAT PG PDF Download

Introduction

The seas have historically served two key roles: as a means of communication and as a vast storehouse of resources, both living and non-living. These roles have prompted the development of legal rules.

• The core principle of the law of the sea is that 'the land dominates the sea,' meaning the land's territorial situation is the starting point for determining a coastal state's maritime rights.
• Various conferences led to the 1958 Conventions on the Law of the Sea and the 1982 Convention on the Law of the Sea. The 1958 Convention on the High Seas was seen as a reflection of established international law principles, while the other 1958 instruments contained both reiterations of existing rules and new rules.
• The pressures leading to the Law of the Sea Conference (1974-1982) included economic, political, and strategic factors. Many developing countries wanted to establish a 200-mile exclusive economic zone and international control over the deep seabed to prevent unrestricted mineral extraction by technologically advanced states.
• Western countries aimed to protect their navigation routes and economic interests in the high seas and deep seabed. The diverse range of interests led to the 'package deal' concept in the final draft, where compromises were made to accommodate different state interests.

The Territorial Sea

• Internal waters refer to parts of the sea that are not the high seas, relevant zones, or the territorial sea. These waters are considered part of the land territory of the coastal state.
• Internal waters include harbors, lakes, and rivers located on the landward side of the baselines from which the width of the territorial and other zones is measured. These waters are treated as part of the state's territory.
• Unlike the territorial sea, there is no right of innocent passage for foreign ships through internal waters. However, there is an exception when straight baselines enclose what was previously territorial waters as internal waters.
• A coastal state has jurisdiction over foreign ships within its internal waters and can enforce its laws. However, the judicial authorities of the flag state (the state whose flag the ship flies) may also act in cases of crimes occurring on board the ship.
• In the case of a merchant ship in a foreign port or foreign internal waters, local jurisdiction applies automatically unless there is an express agreement to the contrary. Matters solely related to the ship's crew that do not concern the maintenance of peace within the coastal state's territory are typically left to the flag state's authorities.
• When it comes to foreign warships, the coastal state requires authorization from the captain or flag state before exercising jurisdiction over the ship and its crew. This is because a warship is considered an extension of the sovereign authority of the flag state.

Baselines
Baselines are the lines from which the breadth of the territorial sea is measured. The low-water mark along the coast, as marked on officially recognized large-scale charts, is typically used as the baseline. This practice is based on customary international law and is reiterated in various international conventions.

• Low-Tide Elevations: Low-tide elevations can also be used as baselines for measuring the territorial sea's breadth if they are located within the territorial sea. However, a low-tide elevation completely outside the territorial sea does not generate its own territorial sea.
• Disputed Areas: When a low-tide elevation is in the overlapping territorial sea of two states, both states can use it as part of their low-water line for measuring territorial sea.
• Geographical Challenges: Special rules exist for cases where the coastline is deeply indented or has many islands. These rules help coastal states draw baselines more effectively, potentially enclosing larger areas of sea within internal waters.
• Historical Context: The concept of baselines has evolved over time, moving from the 'cannon shot' rule to the 3-mile rule and eventually to the current practice allowing a 12-mile territorial sea.
• International Agreements: The 1958 Geneva Convention and the 1982 Law of the Sea Convention provide the legal framework for establishing baselines and measuring the territorial sea's breadth.

The Width of the Territorial Sea
The territorial sea's width has been a subject of debate. Historically, it was defined by the 'cannon shot' rule and later the 3-mile rule, supported by countries like the United States and the United Kingdom. Disagreements arose over specific jurisdictional rights, such as fisheries and customs.

• The 3-mile rule was eventually replaced by the 12-mile limit, allowing all states to establish their territorial sea up to 12 nautical miles from the baselines.
• The 1982 Convention affirmed this right, reflecting the evolving practices of states. For instance, the UK and the US adopted 12-mile limits in the late 1980s.

The Juridical Nature of the Territorial Sea

• The territorial sea is automatically part of the coastal state's territorial sovereignty. Various theories exist regarding its legal nature, ranging from viewing it as part of the res communis with certain coastal state rights to considering it as part of the coastal state's territorial domain with a right of innocent passage for foreign vessels.
• Despite differing views, it is clear that the coastal state has sovreign rights over its territorial sea and significant jurisdictional control according to international law.
• The main limitation on the coastal state's sovereignty is the right of innocent passage for other nations, distinguishing the territorial sea from internal waters, which are fully under the coastal state's jurisdiction.
• The coastal state's sovereignty extends over the territorial sea, including the airspace, seabed, and subsoil, as per the provisions of the 1958 Convention on the Territorial Sea and international law.
• The territorial sea is considered part of the land territory it is attached to, so if land is ceded, the associated territorial waters are included. The coastal state has the right to exclude foreign vessels from certain activities, such as fishing and coastal trading, within its territorial sea.
• Additionally, the coastal state has extensive powers over matters like security and customs. However, the extent to which a state exercises these powers depends on its domestic laws, and some states may choose not to fully utilize the powers allowed by international law.

The Right of Innocent Passage

• The right of innocent passage allows foreign merchant ships to pass through a coastal state's territorial sea without hindrance, despite the state's sovereignty. This principle, rooted in customary international law, is outlined in Article 17 of the 1982 Convention.
• Passage is defined as navigation through the territorial sea for the purpose of crossing it without entering internal waters or proceeding to or from internal waters. While temporary stoppages are permitted, they must be incidental to ordinary navigation or necessitated by distress or force majeure.
• The coastal state cannot impose charges for innocent passage unless they are for specific services. Ships exercising the right of passage must comply with the coastal state's regulations, provided these are consistent with international law.
• Passage is considered non-innocent if it threatens the peace, good order, or security of the coastal state. In such cases, the coastal state has the right to take preventive measures within its territorial sea and, for ships heading to internal waters, to prevent breaches of the conditions for admission.
• Coastal states can temporarily suspend innocent passage for security reasons, except in international straits, provided such suspensions are published. Article 19(2) of the 1982 Convention elaborates on non-innocent passage by providing examples of actions that would make passage prejudicial, such as threats or use of force, spying, fishing, and pollution.
• Article 21(1) of the 1982 Convention empowers coastal states to adopt laws and regulations concerning innocent passage regarding safety of navigation, protection of navigational aids, conservation of living resources, prevention of pollution, and other related matters.

Jurisdiction Over Foreign Ships

• When foreign ships are passing through a coastal state's territorial sea, the state can only exercise criminal jurisdiction for arrests or investigations under specific conditions.
• If a foreign ship has left the internal waters of a coastal state and is passing through its territorial sea, the coastal state can act according to its laws regarding arrests or investigations on board, without being restricted by Article 27(1) of the 1982 Convention.

Article 28 of the 1982 Convention

• Coastal states cannot stop or divert foreign ships passing through their territorial sea to exercise civil jurisdiction over a person on board, nor can they seize or arrest the ship, unless the ship has obligations assumed during its voyage through the coastal state's waters or is passing through the territorial sea after leaving internal waters.
• These rules do not affect a state's right to seize or arrest a foreign ship for civil proceedings if the ship is lying in the territorial sea or passing through it after leaving internal waters.

Warships and Government Ships

• Warships and other government vessels engaged in non-commercial activities are exempt from the jurisdiction of the coastal state. However, they may be instructed to leave the territorial sea immediately for violating passage regulations, and the flag state will be held internationally responsible for any damages or losses incurred.

The Contiguous Zone

The contiguous zone represents a compromise between the interests of the coastal state and those of other maritime nations, allowing the coastal state to exercise certain rights in areas of the high seas adjacent to its territorial sea.

Historical Context

• Historically, some states have claimed rights over specific zones of the high seas, extending the jurisdiction of the coastal state for defined purposes. This extension has been justified to prevent violations of customs, immigration, or sanitary laws, conserve fishing stocks, or ensure exclusive access to resources in the proclaimed zone.

Contiguous Zone Characteristics

• Contiguous zones are part of the high seas where the coastal state may exercise particular rights, differentiating them from full sovereignty over parts of the territorial sea. Unlike the territorial sea, which automatically attaches to a state's land territory, contiguous zones must be specifically claimed by the coastal state.
• Contiguous zones have a maximum limit of 12 miles from the baselines used to measure the territorial sea. If a coastal state already claims a 12-mile territorial sea, the issue of contiguous zones does not arise.

Sanitary and Immigration Laws

• Sanitary and immigration regulations enforced over zones of the high seas are relatively recent and were only justifiable after the 1958 Convention. In contrast, customs zones have a long-standing history and are recognized in customary international law.
• Many states, including the UK and the USA, have implemented customs regulations beyond their territorial waters for years to combat smuggling, which thrived when limited to territorial boundaries of 3 or 4 miles.

The Exclusive Economic Zone (EEZ)

The Exclusive Economic Zone (EEZ) represents a significant development in international maritime law, balancing the interests of coastal states with those of other nations regarding resource management and jurisdictional authority.

Origins and Negotiations

• The concept of the EEZ emerged from earlier claims, particularly related to fishing zones, and was influenced by the negotiations leading to the 1982 Convention. It reflects a compromise between countries advocating for a 200-mile territorial sea and those preferring more limited coastal state powers.
• The push for a 200-mile EEZ was largely driven by disputes over fishing rights. The 1958 Geneva Convention on the Territorial Sea failed to reach consensus on fishing zones, with Article 24 not granting exclusive fishing rights in the contiguous zone.

Fishing Zone Controversies

• Various states unilaterally claimed fishing zones of different widths. The European Fisheries Convention of 1964, implemented in the UK by the Fishing Limits Act 1964, granted the coastal state exclusive fishing rights and jurisdiction in a 6-mile belt from the territorial sea baseline. Between 6 and 12 miles, other states could fish if they had historical fishing rights.
• The International Court in the Fisheries Jurisdiction cases recognized the exclusive fishing zone concept as customary law, especially after the 1960 Geneva Conference, suggesting a generally accepted extension of this zone up to 12 miles from the baselines.

Article 55 of the 1982 Convention

• The 1982 Convention established the EEZ as an area beyond and adjacent to the territorial sea, subject to a specific legal regime. Within the EEZ, the coastal state has jurisdiction to enforce customs laws and regulations regarding artificial islands, installations, and structures.

The Continental Shelf

• The continental shelf refers to the submerged ledges extending from the continental landmass into the sea, covered by relatively shallow water (about 150-200 meters) before dropping off into deeper ocean waters.
• This area is significant due to its rich resources, particularly oil, gas, and extensive fishing grounds.

Article 76(1) of the 1982 Convention

• According to Article 76(1) of the 1982 Convention, the continental shelf of a coastal state includes the seabed and subsoil of submarine areas extending beyond its territorial sea, either to the outer edge of the continental margin or up to 200 nautical miles from the baselines used to measure the territorial sea.

Sovereign Rights Over the Continental Shelf

• Coastal states have exclusive sovereign rights over their continental shelf for exploring and exploiting natural resources, as outlined in Article 77 of the 1982 Convention.
• These rights are exclusive, meaning no other state can undertake such activities without the coastal state's consent. Unlike territorial title, these rights do not depend on occupation or formal proclamation.
• The concept of resources has expanded from just mineral resources to include organisms belonging to sedentary species.

The High Seas

• The concept of the high seas, emphasizing freedom and the inability of any state to claim sovereignty over parts of them, gained prominence in the 18th century. While generally, no state can acquire sovereignty over the high seas, certain areas may come under a state's sovereignty through recognition, acquiescence, and prescription.
• The high seas are defined in the 1958 Geneva Convention on the High Seas as all parts of the sea not included in the territorial sea or internal waters of a state, and they encompass areas not part of the exclusive economic zone, territorial sea, internal waters of a state, or archipelagic waters of an archipelagic state.
• Article 87 of the 1982 Convention states that the high seas are open to all states, and the freedom of the high seas is to be exercised in accordance with the Convention and other international law rules. This includes freedoms such as navigation, overflight, laying submarine cables and pipelines, constructing artificial islands and installations, fishing, and conducting scientific research.
• These freedoms must be exercised with consideration for other states' interests and rights under the Convention concerning activities in the International Seabed Area.