Territorial Jurisdiction (Law of The Sea's)

 TERRITORY: LAW OF THE SEA

- Yogesh Jain

Law of Sea defines rights and liabilities of a nation with respect to the world's oceans. The rights and liabilities may be related to business, environment, maritime resources or boundaries. 

Importance of the Sea

1. Medium of communication

2. Contain vast natural resources

• Grotius – elaborated the doctrine of the open seas which considers the high seas as res communis accessible to all

• The doctrine recognized as permissible the delineation of a maritime belt by littoral (relating to or situated on the shore of the sea or a lake) states as an indivisible part of its domain

•  Maritime belt = territorial sea

Archipelago – means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity or which historically have been regarded as such

Archipelagic State – means a State constituted wholly by one or more archipelagos and may include other islands

littoral State state situated on the shore of the sea 

UN Convention on the Law of the Sea of 1982 UNCLOS  – 

• Signed on 10th of December.1982 at Montego Bay, Jamaica.

• effective from 16 november 1994 

• prevailing law on maritime domain

• The effective date is different(12 years) from the signed.Date of the convention. There was a condition that this convention would come into force and two.One year after 60 countries would have.Bring their domestic laws and conformity with this convention. 

• 320 articles 17 parts 

What was the need of such law?

1. The sea is full of resources, and by 1960s it was realized that the world.That we now have technology to extract those resources. The sea floor was full of various resources like iron, manganese, copper, nickel, cobalt, etc.

2. According to the prevailing law of the high seas at the time, only the rich and the wealthy, countries and corporations.Could have exploited these resources for their own benefit and no benefit would be given to poor nations. 

What has changed?

1. Conferences were held under the concept of common heritage of mankind, which was the antithesis of.Doctrine of open seas/freedom of high seas and as a result of the third conference.(Unclos iii), this convention was formed.

2. Earlier the situation was black and white estates head folds over nicely till their boundaries and after the boundary the freedom of High Sea source absolute.

3. Mare Liberum, the sea is open to all nations

4. The principle of mayor Librium is not the principle governing seas anymore.

5. UNCLOS brought such changes that sovereign rights are now faced down by making certain zones it also reduces freedom of the high seas. 

Art. 2 of the 1982 Law of the Sea provides that.

1. Sovereignty of a coastal State extends, beyond its land territory and internal waters and, in case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as territorial sea.

2. Sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.

3. Sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.

Territorial Sea – belt of sea outwards from the baseline and up to 12 nautical miles beyond

• The width of this territorial belt of water is the 12-mile rule.

• However, where the application of the 12-mile rule to neighboring littoral states would result in overlapping the rule is that the dividing line is the median line equidistant from the opposite baselines.

• Equidistance rule does not apply where historic title or other special circumstances require a different measurement.

• The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea: UNCLOS, Art 2(1)

• Foreign vessels may enter this region only under the right of innocent passage, Article 19. 

Sovereignty over Territorial Sea – 

• same as sovereignty over its land territory

• The sea and the strait are subject to the right of innocent passage by other states.

Right of Innocent Passage – passage that is not prejudicial to the peace, good order or security of the coastal state.

•  Applies to ships, aircrafts, and submarines.

•  Coastal states have the unilateral right to verify the innocent character of passage, and it may take the necessary steps to prevent passage that it determines to be not innocent.

Baselines – the low-water line along the coast as marked on large scale charts officially recognized by the coastal State.

Two ways of drawing the Baseline:

1. Normal baseline – one drawn following the low-water line along the coast as marked on large scale charts officially recognized by the coastal State.

• . this line follows the curvatures of the coast and therefore would normally not consist of straight lines.

2.  Straight baseline – drawn connecting selected points on the coast without appreciable departure from the general shape of the coast, 

• Most archipelagic states use straight baselines. 

• Art. 47 of the Convention on the Law of the Sea – the length of such baseline shall not exceed 100 nautical miles, except that up to 3% of the total number of baselines enclosing any archipelago may exceed that length up to a maximum length of 125 nautical miles.

Internal Waters – 

Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State: UNCLOS, Art8(1)

• Coastal states may regulate access to its ports. 

• An archipelagic state may designate sea lanes and air routes there above, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.

•  Coastal State has complete and exclusive sovereignty subject to the right of foreign vessels in distress to seek safety in internal waters: UNCLOS, Art 2(1)

• No right of innocent passage through internal waters.

Contiguous Zone – 

an area of water not exceeding 24 nautical miles from the baseline

• It extends 12 nautical miles from the edge of the territorial sea

• The coastal state has the power to prevent infringement of its customs, taxation, immigration and pollution related laws.And regulations within this zone.

•  However, the power of control given to the littoral state does not change the nature of the waters.

•  Beyond the territorial sea, the waters are high sea and are not subject to the sovereignty of the coastal state.

Exclusive Economic Zone – 

an area extending not more than 200 nautical miles beyond the baseline- Does Not include territorial sea- but covers contagious zone hence actual length 200-12+188 miles.

• Coastal state has rights over the economic sources of the sea, seabed and subsoil – but the right does not affect the right of navigation and overflight of other states.

• The delimitation of the overlapping EEZ between adjacent states is determined by agreement.

• Foreign ships are allowed to trade to lay cables as long as they are not harming. The sea state.

• State has exploration, usage, conservation, management and exploitation rights over the seabed and subsoil for this exclusive economic zone. 

Extended Continental shelf, ECS. Extends from the end of the exclusive economic zone for at most another 150 miles.

The Continental (Archipelagic) Shelf – refers to the

1. Seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth allows exploitation.

2. Seabed and subsoil of areas adjacent to islands The Deep Seabed: “Common Heritage of Mankind.”

The Deep Seabed

• these are areas of the seabed and ocean floor, and their subsoil, which lie beyond any national jurisdiction.

• These are the common heritage of mankind and may not be appropriated by any state or person.

The High Seas – 

• all parts of the sea that are not included in the territorial sea or in the internal waters of a state.

• The flag state has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement.

• No State may validly purport to subject any part of the high seas to its sovereignty.

Jurisdiction on the high seas

Jurisdiction of the flag State

Nationality of ships

1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly.There must exist genuine link between the State and the ship: UNCLOS, Art 91

2. The flying flag following the registration represents the nationality of the ship.

3. Vessels on the high seas are subject to no authority except that of the State whose flag they fly Lotus Case

4. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.

The Lotus case (france versus Turkey).1927

1. Concerned a collision on the high seas between a French steamer and a Turkish coila, and which the letter sank.And the Turkish crew members and the passengers lost their lives.

2. The French steamer, having put into port in turkey for repairs. The officers of the watch were tried and convicted for involuntary manslaughter.

3. Was Turkey violating the principles of international law by prosecuting a foreign national? What basis Does it have for doing so?

4. Held Turkey was entitled to do so based on that territorial principle. 

Six Freedoms which High Seas are subject to:

1. Navigation

2. Overflight – belongs to both civilian and military aircraft.

3. Fishing – includes the duty to cooperate in taking measures to ensure the conservation and management of the living resources of the high seas.

4. Lay submarine cables and pipelines

5. Construct artificial islands and structures.

6. Scientific research

This is not an exhaustive list.

Hot Pursuit

• Art. 111 allows hot pursuit of a foreign vessel where there is good reason to believe that the ship has violated laws or regulations of a coastal state.

• This must commence when the foreign vessel is within the internal waters, archipelagic waters, territorial waters, exclusive economic zone, continental shelf or the contiguous zone of the pursuing state.

• Hot pursuit must stop as soon as the ship pursued enters the territorial waters of its own state or of a third state.

• May be carried out only by warships or military aircraft, or any other ships or aircraft properly marked for that purpose.

Settlement of Disputes

Peaceful settlement is compulsory.

Anglo Norwegian fisheries case.(UK versus Norway.)

1. In1935.Norway delimited a certain fishery zone which was exclusively reserved to its nationals.

2. The T limitation was using straight baselines, which was opposed by the UK.

3. The coastal zone involved has a distinctive configuration which is long and very broken.

4. The court upheld the Norwegian delimitation. 

Corfu Channel case.UK versus Albania. 

1. On May 15, 1946, the two British cruisers while passing southward through the north Corfu channel were fired by Albanian battery in the vicinity of SARANDA.

2. UK at once protested to the Albanian Government, stating that innocent passage through streets is a right recognized by international law.

3. Albanian government asserted that foreign warships and merchant vessels had no right to pass through the Albanian territorial waters without prior notification to and permission of the Albanian authorities.

4. October 22, 1946, the two cruisers, together with two destroyers were sent through north Corfu Strait and encountered an explosion.

5. The UK was very angry about the explosion, alleged that Albania failed to notify the existence of mines and raised. Of operational retail (bole to mines hta dega uk) as  the method of self-protection to destroy the mines in Albania's territory.

6. Held judgment for the UK in respect of passage on October 22, 1946. Judgment for Albania in respect of mine sweeping. Of November 13, 1946.