1. Topic H: Navigational Rights and Freedoms Professor Donald R. Rothwell 27 February 2009

2. Basic Principles Coastal State Maritime Jurisdiction –Nationality/Territoriality –Treaty Navigational Rights and Freedoms –Conduct of Passage –Coastal State Regulation Municipal Law Control –Is there an offence? –Is there a power of arrest? –Who can exercise that power?

3. Introduction Basic concepts of freedom of the seas –Closed Seas and Open Seas –20 th Century acceptance of freedom of the seas Impact of extended maritime zones –Geneva Convention on the Territorial Sea Innocent Passage in the Territorial Sea –Geneva Convention and International Straits Corfu Channel Case Classification of International Straits

4. Territorial Sea Right of Innocent Passage Art 17 Meaning of Passage Art 18 –Traversing the sea without entering internal waters –Proceeding to or from internal waters Passage shall be –Continuous and expeditious –Stopping and anchoring only so far as in incidental to passage or necessary as a result of force majeure/distress

5. Territorial Sea Meaning of innocent passage Art 19 –Innocent so long as “not prejudicial to the peace, good order or security of the coastal State” –Takes place in conformity with other international law rules –Passage is prejudicial if (A 19(2)) Any threat or use of force Exercise of practice with weapons Act of propaganda Wilful or serious act of pollution Fishing activities Marine scientific research Any other activity not having a direct bearing on passage

6. Issues arising Who makes the determination as to whether passage is or is not prejudicial to the coastal State? What evidentiary standard is required to make a judgement that passage is not innocent? –Objective –Subjective What are the consequences if a determination is made that passage is not innocent? –Can the right of passage be suspended –Can exercise of the right be barred? –Can force be used to prevent passage?

7. Territorial Sea Duties of the coastal state Art 24 –Not to hamper innocent passage –Not to deny the right of innocent passage –Not to discriminate in form or fact against ships –To give appropriate publicity to dangers to navigation

8. Territorial Sea Rights of the Coastal State –To prevent passage which is not innocent Art 25 Temporarily suspend innocent passage –To apply certain laws and regulations Art 21 –To enforce criminal law: Art 27 Crime extends to the state Crime disturbs peace & good order Assistance has been requested Measures to suppress drug trafficking

9. Case of the Lusitania Expresso Portuguese flagged car ferry: Darwin- Dili (1992) Indonesia announces en route the TS is closed LE is shadowed by Indonesian Navy upon entry into the EEZ Upon nearing the TS the LE is asked to turn around LE stops, drops floral wreaths and returns to Darwin

10. International Straits Various regimes apply 1.Transit Passage through straits 2.Long-standing convention regimes 3.Straits where there exists an alternate high seas route 4.Straits within internal waters/territorial sea which are not used for international navigation

11. International Straits Principal scope of application of Part III (Art 37) –Straits –Used for international navigation –Between one part of the high seas/EEZ and another part of the high seas/EEZ Which straits meet this criteria? Legal/Geographic – Juridical Strait? Australian International Straits Bass Strait Torres Strait Investigator Strait Bathurst Is/Melville Is/Darwin Harbour

12. International Straits Transit Passage Art 38/39 –“freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas/EEZ and another part of the high seas/EEZ” –Obligations include: To proceed without delay Refrain from any threat or use of force Refrain any activities which are not incidental to normal modes of transit

13. International Straits –Strait states shall not hamper transit passage: A 44 –Capacity to apply criminal laws? Limited scope: A 42 –Does Art. 27 apply? –If not, does the vessel enjoy de facto immunity? –What is ‘passage through the territorial sea’?

14. Torres Strait Recognised international strait Voluntary pilotage regime adopted 1990s Australia concerned over potential for marine environmental disaster PSSA designation sought in the IMO –IMO approved designation –From 2006 vessels with a draft of +8m are required to carry a pilot GBR compulsory pilotage in effect as from 1991

15. Compulsory Pilotage Great Barrier Reef Torres Strait

16. Issue arising Is the Torres Strait a potential precedent for other waters? –Canadian Arctic waters –Indonesian archipelago? What is a vessel refuses to take on a pilot? Is this a hampering of the right of passage Can Australia’s position be challenged before the ICJ/ITLOS

17. A Bass Strait Bridge? See Passage through The Great Belt (Denmark v Finland) [1991] ICJ

18. High Seas –Navigation as a High Seas Freedom (Art 87 LOSC) A traditional right founded in bot custom and convention Right to be exercised free from interference What is the extent of the freedom? –Exceptions under LOSC to High Seas Freedom of Navigation Ships engaged in Piracy Ships engaged in the slave trade Ships engaged in unauthorized broadcasting –Ad hoc exceptions arising from UNSC Resolutions

19. Exclusive Economic Zone –Rights of navigation and overflight apply within the 188nm EEZ: Art 58 LOSC –Other provisions dealing with High Seas apply providing they are not incompatible with EEZ regime EEZ Freedoms of Navigation –Apply within the EEZ to the extent they do not impact upon the particular EEZ interests of the coastal State –Resource Management/Marine Environment/Marine Scientific Research

20. Concluding Remarks Fundamental to the Law of the Sea regime Impacts upon Freedom of Navigation are strongly resisted Distinction between military and non-military activities Concerns about erosion of freedoms of navigation arising from –Increased concerns over security –Increased concerns over environmental protection Need to maintain a balance between coastal States rights and navigational freedoms