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1 Proshanto K. Mukherjee Director, Postgraduate Maritime Law Programme Professor of Maritime Law Lund University, Sweden Former Vice President (Research)

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Presentation on theme: "1 Proshanto K. Mukherjee Director, Postgraduate Maritime Law Programme Professor of Maritime Law Lund University, Sweden Former Vice President (Research)"— Presentation transcript:

1 1 Proshanto K. Mukherjee Director, Postgraduate Maritime Law Programme Professor of Maritime Law Lund University, Sweden Former Vice President (Research) Director of Doctoral Programmes ITF Professor of Maritime Safety and Environmental Protection, World Maritime University, Malmo MARITIME ZONES UNDER UNCLOS RIGHTS AND JURISDICTIONS

2 INTRODUCTION The 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 communis The 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 seas Under UNCLOS, there are several maritime zones appertaining to the coastal state The high seas are beyond the limits of any national jurisdiction 2

3 Maritime Zones 3 R.R. Churchill and A.V. Lowe, 1999; see supra, note 1 at p.30 8

4 Baselines With 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 sea Under article 5 of UNCLOS (in Part II) there are two kinds of baselines - the normal and the straight baseline The 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 intervals The 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 earth Spring 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 4

5 Baselines Where 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 [1951] ICJ Rep 116) or numerous islands obscure the land-sea divide, under article 7 straight baselines can be used However, the straight baselines must not deviate from the general direction of the coastline Sea areas landward of the baseline must be closely linked to the land domain to have the status of inland waters Straight 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) 5

6 Internal Waters In 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 domain Mostly waters in a port area are part of internal waters because the baseline is usually drawn along the outer perimeter of the port Although, 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 risk Despite 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; 6

7 Territorial Sea The 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 nm In the territorial sea, the coastal state exercises full sovereignty subject to the right of innocent passage of foreign ships In 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" 7

8 Territorial Sea In paragraph 2 twelve items are specifically mentioned as activities that are not considered to be innocent and are prohibited There 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 standards Coastal 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 8

9 Contiguous Zone UNCLOS 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. 9

10 Economic 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 force It 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 baseline The 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 Convention It 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 10

11 Economic 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 legislation Arguably, 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 effect The EEZ is neither a part of the territorial sea nor the high seas and is therefore rightly referred to as a regime sui generis The EEZ consists of the superjacent waters in the zone as well as the seabed and subsoil underlying the waters Under 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 11

12 Economic 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 salvage In 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 environment The second and third items mentioned above are covered by Parts XIII and XII of UNCLOS respectively 12

13 Continental Shelf The 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 continental As 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 76 Seaward of the continental margin lies the abyssal plain which is a part of the deep seabed under UNCLOS 13

14 Continental Shelf The outer limit of the continental shelf under the 1958 convention was characterised by the “limit of exploitability” beyond the 200-meter isobath This was considered to be unsuitable from a scientific viewpoint and the extremity of the outer limit is now governed by Article 76 In 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 shelf In 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 8 The Commission must make recommendations based on which the coastal states can establish the limits which will then become final and binding. 14

15 Continental Shelf Under 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 rights The superjacent water column above the continental shelf up to 200 nm belongs to the EEZ regime and beyond that to the high seas regime In 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

16 High Seas Part 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 jurisdiction The 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 publico There 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 research Article 88 expressly provides for the High Seas to be reserved for peaceful purposes Articles 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 16

17 High Seas Articles 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 piracy The 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 interests The 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 17

18 Legislative and Enforcement Jurisdiction Concept of Jurisdiction in National and International Law: Vertical and Horizontal Dimensiosn competence to make laws by legislature, or by courts; competence to enforce laws administratively or in practice, judicially, i.e., through court action, or through diplomatic process Maritime Zones and Regimes Legislative jurisdiction may be limited to ratione loci, ratione personae, or ratione materiae application of legislation subject to domestic rules of statutory construction which prohibits extra- territorial application of domestic law unless expressly provided otherwise. 18

19 Legislative and Enforcement Jurisdiction Enforcement jurisdiction may be co-existent with legislative jurisdiction, or independent of legislative jurisdiction Application of law may not automatically imply enforceability; the latter may be limited in scope. Territorial Sea Sovereignty 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 jurisdiction such 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 19

20 Legislative 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 obligations IMO conventions such as SOLAS, MARPOL, LOADLINES, etc. provide for flag State enforcement. Contiguous zone Article 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. 20

21 Conclusion The new law of the sea as depicted through UNCLOS reflects a functional approach to maritime zones as distinguished from the traditional geographical approach As 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 environment The 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 extremity However, both approaches are intertwined and interrelated and they work together in harmony 21

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