Transcript 22 Law of the Sea - Midlands State University

22 Law of the Sea
• Sea covers 70% of the globe.
• Divided into internal waters, territorial sea,
high seas
• These have changed as a result of coastal
state’s claim to use high seas, contigous
zones, exclusive fisheries zones,
continental shelf.
22.1
• Four conventions exist
• Convention on territorial sea and the
contiguous zone
• Convention on the high seas
• Convention on fishing and conservation of
living resources of high seas
• Convention on the continental shelf.
22.2
• Although the conventions are binding only on
states which are parties to them , many of the
provisions can be used as the emerge of
customary law even against states which are not
part to them. Most of the provisions of the 1958
convention have been changed in 1982
convention that established comprehensive
framework concerning the use of oceans and
covers all marine areas including the air space
above and sea bead and sub soil below. It also
deals with the rights and duties of states as it
relates to territorial sea, exclusive economic
22.3
• Zone, the right of transit passage in
international starits, the use of fishing
resources, the exploration and exploitation
of national resources in the sea bed and
exploitatation of natural resources in the
sea bde and sub soil of the continental
shelf, navigation and overflight rights,
deep seabed mining under international
sea bed authority and marine scientific
research.
23.4
• Internal waters
• Consists of ports, harbors, rivers, lakes
and canals.
• Article 8 (1) of the 1982 convention
defines internal waters as the waters on
the land ward side of the baseline from
which the witdth of the territorial sea is
measured and corresponds to Article 5 of
1958 convention.
23.5
• Sovereignty of coastal sattes entitled to
prohibit entry into its ports by foreign ships
in distress
• Though allow a ship in internal waters and
coastal areas:
• A. jurisdiction of coastal state’s courts is
exclusive. The courts of a flag state may
also try people for crimes committed on
board the ship.
22.6
• The coastal state will interfere with the exercise
of disciplinary powers by the captain over his
crew.
• If the crime does not affect the coastal state the
flag state is allowed to discipline as relating its
counts but it’s a matter of grace and convinience
rather than obligation.
• For a ship in distress a degree of immunity
prevails.
22.7
• Warships are immune from enforcement but
they may be requested by coastal state to leave
its waters.
• Members of a crew are immune from
prosecution by a coastal state committed on
board the ship and for crimes committed on
shore, if they were in uniform and on official
business at the time of crime.But the flg state
may waive immunity.
22.8
• Territorial sea:The width has been one of the
most controversial questions in international law.
• Right of innocent passage- Article 2 (1)
convention says that coastal state exercises
sovereignty over the territorial sea. But its limited
to as foreign ships have the right of innocent
passage through the territorial waters.
• Coastal sate may prevent non innocent passage
for security reasons, territory suspend innocent
passage in specified areas of territorial sea
provided there note starits-used for inter
navigation
22.9
• Western states maintain that the right of
innocent passage extends to warships. In Corfu
Channel Case ICJ rep 1949.4. ICJ held that
warship have the right of passage through
international starits.
• BuT Soviet Union and other six communist
countries together with Columbian made
reservation to the convention. However in 1984
USSR reversed and recognised that foreign
warships have the right to innocent passage.
22.10
• Rights of coastal states over territorial sea.
• Have exclusive right to fish, exploi, air space,
transport goods and passage on territorial sea.
• Coastal state has certain power of arrest of
merchant ship.
• Width of the territorial sea: During the
Napoleonioc wars- 3miles, scadavian states 4
miles, spain and portugal claimed 6
22.11
• Some third world states wanted wide
territorial sea because they were afraid tha
the 3 mile would enable great poers to
pscychological in times of crises opposed
to west who fear extention of territorial sea
would limit their sea power and sea borne
trade.
11.12
• 1958 Geneva fixed it at six miles but
others feel that it should be fixed at 12
miles . Malanczuk “alsost all states agreed
that international law imposes limits on the
terriral but straits continued to disagree as
to what limits way’
• Line from which it is measured rely on
baseline.
11.13
• The contiguous zone: between two world wars
French writer Gidel propounded the theory of
contigous zone asmeans of rationalising the
conforming practice of states as other states
argued that it was an attempt to extend territorial
sea.
• Article 24 of 1958 convention the coastal states
may exercise control necessary to prevent
infridgement of its customs, fiscal, immigration
and sanitary regulation., may not extend beyond
12 mile from baseline. In relation to customary
law some claim,6,10,12,18,24,41
14.14
• Exclusive fisheries zones and exclusive
economic zone.
• Since 1960 there has been a tendency for states
to claim exclusive fishery zone beyond the
territorial sea. In FISHERIES JURISDICTION
CASE between UK and Iceland, the ICJ held
that a coastal state had a preferential right over
fish in adjacent areas of the sea beyond 12mile
line, at least if the coastal state (like Iceland)
was dependent on local fisheries.
14.15
• Article 56 (1) (a) of 1982 gives coastal
states sovereign right overall economic
resources of the sea, seabed and subsoil
in its exclusive economic zone this
includes not only fish but also minerals
beneath the seabed. In practice claiming
exclusive fishing rights for 200 miles,
although recent, is now so widespread that
it can probably no longer be regarded as
illegal.
14.16
• As of 1994 93 states claimed exclusive
economic zone not more than 200miles.
• Foreign ships which violate that rights of
coastal states in its exclusive fishing zone
or exclusive economic zone may be
arrested by the coastal state.
14.17
• High seas
• Means all parts of the sea that are not included
in the parts of the territorial sea or the internal
waters of the state. The high seas may be used
freely by all ships of all nations.
• Article 2 of the 1958 Geneva Convention on
High Seas states that freedom of high seas
comprise of navigation, freedom of fishing,
freedom to submarine cables and pipelines,
freedom to fly over high seas.
14.18
• These freedoms maybe enjoyed by landlocked
countries and can negotiate with coastal states
to have the right to use ports and right of
transport.
• A ship on high seas is subject to internal laws of
the flag state
• Other states, “flag of convenience” countries are
prepared to register virtually any ship in return
for the payment of the fee.
14.19
• The giving of flags of convenience is
shown by the fleet Liberia has- is the
largest ship owning nation.
• Article 5 of High seas Convention “there
must be a genuine link between the state
and the ship”
• Interference with ship: no one but the flag
state may exercise jurisdiction over a ship
on the high seas.
14.20
•
In time of war, a warship of a belligerent
state is liable to be attacked by enemy
warship.
• Certain circumstances exist where
interference is allowed
1. Its lawful to sieze a stateless ship
2. Right of hot pursuit is designed to
prevent the ship avoiding arrest by
escaping to the high seas
14.21
3. The right of approach-merchant ships are
subject to control by warship of flag state.
4. Treaties- if a treaty exist between parties
allowing reciprocal power of arrest over
one' merchant ship.
Convention support that the power to seize
ships suspected of engaging in slave trade
has now become rule of international law.
14.22
• States have reciprocal power to arrest , after the
arrest the offenders must be handed back to the
flag state for trial.
• If a warship has reasonable grounds for
suspecting that a merchant ship is engaged in
piracy, it may board the ship on high seas for the
purpose of investigation regardless of merchant
ship’s nationality. If suspicion is justifies arrest
can be made and trial be held.
14.23
• Belligerent rights: in time of war a ship belonging
to a belligerent state may be seized by the
enemy merchant ship or a neutral trading ship
with an enemy.
• Self defence: France cited self defence as a
justification for seizing foreign merchant ships
carrying arms to rebel movement in Algeria in
the 1950s.
• Action authorized by UN. The ordinary rules of
international law concerning criminal jurisdiction
apply to crimes committed on high seas.
14.24
• Continental shelf.
• Article 76 contains complicated and
controversial provisions dealing with outer edge
of continental margins.
• The continental margin consists not only of the
continental shelf but also the continental shelf
but also the continental slope a stepping sloping
area beyond continental shelf, the continental
rise, a gentle slopping area between the
continental shelf and the deep sea bed.
14.25
• Deep sea bed
• Resolution 2749 (xxv) passed by the General
Assembly on December 1970 by 108 votes to 0
declared that deep sea bed was common
heritage for all mankind.
• 1982 convention on the control of the Seabed,
seabed would be under International Seabed
Authority which will exploit the seadbed and its
subsoil or grant license for such exploration
14.26
• Royalty, revenue, profits received by
authority will be used for the benefit of
mankind
• Clash has existed between developing
countries claiming the right to use the
funds but developed countries being the
main contributors wants a fair share.
14.27
• Maritime boundaries:
• Conflicts over boundaries on the sea have
emerged
• Geneva convention on the territorial sae
place primary emphasis on the
equidistance principle but down graded by
Article 83 (1) 1982 which give concerned
parties to reach an agreement on the
basis of international law.
14.28
• Conclusion.
• regional disputes still unsettled, some of
the most serious ones a very real potential
conflict are in the south East Asia region
especially competing claims to the Spratly
Island in South China Sea.