Presentation on theme: "MARITIME ZONES UNDER UNCLOS RIGHTS AND JURISDICTIONS"— Presentation transcript:
1MARITIME ZONES UNDER UNCLOS RIGHTS AND JURISDICTIONS Proshanto K. MukherjeeDirector, Postgraduate Maritime Law ProgrammeProfessor of Maritime LawLund University, SwedenFormer Vice President (Research)Director of Doctoral ProgrammesITF Professor of Maritime Safety and Environmental Protection,World Maritime University, Malmo
2INTRODUCTIONThe law of the sea is a specialized branch of public international law;Its historical roots are in the Roman law exemplified by the doctrines of res nullius, res publicus and res communisThe customary international law of the sea was first codified through the four Geneva Conventions of 1958; eventually, culminating into the comprehensive UN Convention on the Law of the Sea, 1982 (UNCLOS)Land and sea has traditionally been divided by a line represented by the low water line (LWL)A belt of water (originally 3 nm wide) seaward of the LWL comprises the territorial sea beyond which lies the high seasUnder UNCLOS, there are several maritime zones appertaining to the coastal stateThe high seas are beyond the limits of any national jurisdiction
3R.R. Churchill and A.V. Lowe, 1999; see supra, note 1 at p.30 8 Maritime ZonesR.R. Churchill and A.V. Lowe, 1999; see supra, note 1 at p.30 8
4BaselinesWith one exception relating to the outer limit of the continental shelf, all maritime zones are measured from the baseline which was originally associated with the measurement of the breadth of the territorial seaUnder article 5 of UNCLOS (in Part II) there are two kinds of baselines - the normal and the straight baselineThe former is “the low water line along the coast as marked on large scale charts officially recognized by the coastal State” referred to as the sinuosity of the coast line, a term which reflects the tidal phenomenon of two high waters and two low waters in 24 hrs occurring alternately at 6-hour intervalsThe times of high and low water are dictated by the relative positions of the sun and the moon vis a vis the earth, the gravitational pull of the moon being stronger because of its proximity to the earthSpring tides occur when the sun and the moon are on the same side of the earth, and neaps occur when they are on opposite sides
5BaselinesWhere the coastline configuration is not amenable to the use of normal baselines, namely where the coastline is deeply indented or “jagged” (see Anglo-Norwegian Fisheries Case  ICJ Rep 116) or numerous islands obscure the land-sea divide, under article 7 straight baselines can be usedHowever, the straight baselines must not deviate from the general direction of the coastlineSea areas landward of the baseline must be closely linked to the land domain to have the status of inland watersStraight baselines cannot be drawn from low tide elevations unless there is a permanent structure visible above sea level, and they cannot be so drawn as to cut off the territorial sea of another coastal state from its EEZ or the high seas;Bay closing lines are subject to the semi-circle rule and cannot be more than 24 nm long (Article 10)
6Internal WatersIn UNCLOS Part II article 8 (1), “internal waters” is defined as “waters on the landward side of the baseline of the territorial sea”The coast state enjoys the same complete territorial sovereignty over the internal waters as it does over its land domainMostly waters in a port area are part of internal waters because the baseline is usually drawn along the outer perimeter of the portAlthough, there is no international consensus, arguably a foreign ship has no inherent right to enter a port and must obtain inward clearance (see however, the Aramco Arbitration of 1958)Also under customary international law, a ship in distress is entitled to port entry if human life is at riskDespite the virtually unlimited jurisdiction, as a matter of national policy, unless the peace and good order of the port is detrimentally affected, the coastal state will not assert jurisdiction over a visiting ship;
7Territorial SeaThe territorial sea is the seaward extension of the land territory of the coastal state (Part II)Under UNCLOS its breadth is 12 nm measured from the baseline. Previously under customary law and state practice it was 3 nm based on the “cannon-shot rule” except in the Scandinavian countries where it was 4 nmIn the territorial sea, the coastal state exercises full sovereignty subject to the right of innocent passage of foreign shipsIn Article 18, passage is defined; essentially it must be “continuous and expeditious” but stopping and anchoring is part of passage if it is incidental to ordinary navigation. Exception is also made for force majeure or distress.Innocent passage is elaborated in Article 19 which provides that "[P]assage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state"
8Territorial SeaIn paragraph 2 twelve items are specifically mentioned as activities that are not considered to be innocent and are prohibitedThere is no prohibition on warships exercising the right of innocent passage so long as the vessel does not engage in any military exercise or practice with weapons.Under Article 21, a coastal state may enact legislation relating to innocent passage on certain enumerated matters, but not on design, construction, manning and equipment of foreign vessels in excess of international rules or standardsCoastal state jurisdiction in the territorial sea is the same as on land but in the case of ships there can be dual or concurrent jurisdiction. Coastal and flag state jurisdictions are not mutually exclusive in public law matters; there is no concept of “double jeopardy”. The same applies to internal waters
9Contiguous ZoneUNCLOS Article 33 (in Part II) is the only provision; paragraph 1 contains the definition which simply states that it is “a zone contiguous to the territorial sea”.There are four specific subject matters falling under this regime, namely customs, fiscal, immigration and sanitary laws.Customs and immigration matters deal with contraband and tariff restrictions and rights of entry and departure; fiscal and sanitary laws deal with taxation issues and quarantine restrictions.An important aspect of this regime is its application to archaeological and historical objects found at sea; Under Article 303 a coastal state has the right to apply Article 33 in respect of removal of such objects from the seabed.
10Economic Exclusive Zone The EEZ is a creation of UNCLOS (Part V) but had already acquired the status of customary law through state practice before the convention entered into forceIt is defined in Article 55 as “an area beyond and adjacent to the territorial sea … under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention”The width of the EEZ is 188 nm measured from the outer limit of the territorial sea to 200 nm from the baselineThe origin of the EEZ is rooted in the Latin American notion of the patrimonial sea but is veiled in obscurity. It entered UNCLOS through a proposal made by Kenya during negotiations leading up to the adoption of the ConventionIt was a compromise reached between two groups of countries; one which favoured a wide territorial sea and the other which was against any extension of coastal State jurisdiction into the high seas
11Economic Exclusive Zone There is no inherent right to a EEZ; a coastal State must make a claim through a declaration or proclamation or through enactment of domestic legislationArguably, because a coastal State’s right to claim an EEZ is considered to be a part of customary international law, there is no need for any express declaration to that effectThe EEZ is neither a part of the territorial sea nor the high seas and is therefore rightly referred to as a regime sui generisThe EEZ consists of the superjacent waters in the zone as well as the seabed and subsoil underlying the watersUnder Article 56, in the EEZ the coastalState enjoys “sovereign rights for the purposes of exploring and exploiting, conserving and managing the natural resources, whether living or non-living…”It is a right that is lower in status than sovereignty and is a creation of UNCLOS
12Economic Exclusive Zone The coastal State has no sovereign rights over resources that are not “natural” such as wrecks and other artificial remains in the seas that are subject to the law of salvageIn the EEZ, under Article 56, the coastal State also has jurisdiction with regard to -the establishment and use of artificial islands, installations and structures;marine scientific research;the protection and preservation of the marine environmentThe second and third items mentioned above are covered by Parts XIII and XII of UNCLOS respectively
13Continental ShelfThe regime of the continental shelf in UNCLOS Part VI has its roots in the Truman Proclamation of 1945 in which President Truman stated that “the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control”The continental shelf is both a legal doctrine as well as a geological phenomenon and is described as “the natural prolongation of the continental land mass” taking account of the marine geological concept of features being either “oceanic” or continentalAs depicted in the diagram above the continental shelf consists of three components, namely, the shelf, the slope, and the rise collectively known as the continental margin and is reflected in the definition in Article 76Seaward of the continental margin lies the abyssal plain which is a part of the deep seabed under UNCLOS
14Continental ShelfThe outer limit of the continental shelf under the 1958 convention was characterised by the “limit of exploitability” beyond the 200-meter isobathThis was considered to be unsuitable from a scientific viewpoint and the extremity of the outer limit is now governed by Article 76In the case of a geologically narrow shelf state, the outer limit is fixed at 200 nm from the baseline regardless of the geological configuration of the shelfIn the case of a geologically wide shelf state, the options depicted in the “Irish formula” which are quite complex are to be applied (see paragraphs 4-7)The limits are to be determined by each coastal State by applying Article 76 and submitting them to the Commission on the Limits of the Continental Shelf in accordance with paragraph 8The Commission must make recommendations based on which the coastal states can establish the limits which will then become final and binding.
15Continental ShelfUnder Article 77, in the continental shelf the coastal State enjoys sovereign rights over the natural resources same as under the EEZ but the rights “do not depend on occupation, effective or notional, or on any express proclamation” and corresponding jurisdiction to exercise those rights.These rights are exclusive to the coastal State; no other state can exercise any rights over unexplored natural resources or undertake any activities relating to them without the express consent of the coastal State.In the extended continental shelf sedentary species are subject to coastal State rightsThe superjacent water column above the continental shelf up to 200 nm belongs to the EEZ regime and beyond that to the high seas regimeIn respect of non-living natural resources in the extended continental shelf, the coastal State must make payment or contributions in kind for the benefit of developing states in accordance of Article 82.
16High SeasPart 7 of UNCLOS deals with High Seas which is not a maritime zone of a coastal state but is of crucial significance in respect of the coastal State’s rights and jurisdictionThe regime of High Seas under UNCLOS is based on the doctrine of freedom of the seas or mare liberum enunciated by Hugo Grotius and also on the Roman law doctrine of res communis or res publicoThere are six freedoms of the High Seas which are set out in Article 87; they comprise navigation, overflight, laying of submarine cables or pipelines, construction of artificial islands and installations, fishing and scientific researchArticle 88 expressly provides for the High Seas to be reserved for peaceful purposesArticles 91 to 94 relate to the subjects of ship nationality including the doctrine of genuine link, the legal notion of flag and duties of flag states
17High SeasArticles 101 to 108 deal with the topical issue of high seas piracy which is considered to be a jus cogens (peremptory norm of international law) crime.With respect to piracy, universal jurisdiction is applicable in the high seas; in other words, all states have the right to take action and the duty to cooperate in the repression of piracyThe coastal State has no jurisdiction in the high seas except where the doctrine of hot pursuit is applicable under Article 111 or under the Intervention Convention of 1969 where there is imminent threat of pollution to its coast line or coastal interestsThe seabed, ocean floor and subsoil underlying the water column of the high seas is known as the Area which is defined in Article 1 and is subject to the legal regime under Part XI
18Legislative and Enforcement Jurisdiction Concept of Jurisdiction in National and International Law: Vertical and Horizontal Dimensiosncompetence to make lawsby legislature, orby courts;competence to enforce lawsadministratively or in practice,judicially, i.e., through court action, orthrough diplomatic processMaritime Zones and RegimesLegislative jurisdiction may be limited toratione loci,ratione personae, orratione materiaeapplication of legislation subject to domestic rules of statutory construction which prohibits extra-territorial application of domestic law unless expressly provided otherwise.
19Legislative and Enforcement Jurisdiction Enforcement jurisdiction may beco-existent with legislative jurisdiction, orindependent of legislative jurisdictionApplication of law may not automatically imply enforceability; the latter may be limited in scope.Territorial SeaSovereignty in territorial sea viewed as a “bundle of servitudes” or alternatively as plenary jurisdiction of the coastal State.The former concept subscribes to identified subject matters of jurisdictionsuch as navigation, fisheries, security, etc.Under the doctrine of internal economy general civil and criminal laws of coastal States may not apply to foreign ships in the territorial sea or ports.Coastal State right of intervention is exercised only at the request of the flag State; i.e., coastal State enforcement jurisdiction is limited but there is full legislative jurisdiction.Plenary jurisdiction implies comprehensive jurisdiction to make and enforce laws. No limitations where plenary jurisdiction claimed in applying sovereignty
20Legislative and Enforcement Jurisdiction UNCLOS Article 21 (innocent passage) and Article 42 (transit passage)Enforceability of convention requirements through domestic legislation giving effect to convention provisions is the preferred route.Otherwise, resort must be had to diplomatic channels for breach of treaty obligationsIMO conventions such as SOLAS, MARPOL, LOADLINES, etc. provide for flag State enforcement. Contiguous zoneArticle 33 provides for enforcement jurisdiction only for offences committed within territorial sea.Article 27 prohibits arrest of foreign vessel passing through territorial sea for offences committed prior to vessel’s entry into the territorial sea.Under customary law of piracy, states other than flag States have both legislative as well as enforcement jurisdiction over ships on the high seas.
21ConclusionThe new law of the sea as depicted through UNCLOS reflects a functional approach to maritime zones as distinguished from the traditional geographical approachAs stated by Churchill and Lowe "[I]ncreasingly, ... the law of the sea is being developed along functional, rather than zonal lines“The functional approach is characterised by particular uses of the seas such as navigation, fishing and marine scientific research and also by the impact of pollution on the marine environmentThe zonal concept in the law of the sea does not exist in isolation. Its significance lies in the various usages of each zone where the functions and activities of the zone take primacy over its extremityHowever, both approaches are intertwined and interrelated and they work together in harmony