Maritime & Shipping Law
Topic: Territorial Sea
? Possible questions/points under the
Territorial Sea topic:-
Ø Identify
Territorial Sea [Meaning; origin; quantity(breadth);
legal status];
Ø Procedure
of Delimitation of the territorial
sea between two opposite or adjacent States ;
Ø Meaning of passage & innocent passage;
Ø Right of innocent passage in Territorial Sea of others;
Ø Activities/ things of prejudicial to the peace,
good order or security of the coastal State;
Ø Power of coastal state in Territorial Sea;
Ø Duties
of coastal state in Territorial Sea;
Ø Charges which may be levied upon foreign ships
in Territorial
Sea;
Ø Criminal jurisdiction of coastal states over a foreign ship in Territorial Sea;
Ø Civil jurisdiction of coastal states over a
foreign ship in Territorial
Sea.
--------------
Territorial Sea: [Article 3 of the United Nations Convention on
the law of the Sea, 1982]:-
ü
Every
State has the right to establish the breadth of its territorial sea up to a
limit not exceeding 12 nautical miles, measured from baselines determined
in accordance with this Convention.
Legal status of the territorial sea, of the air
space over the territorial sea and of its bed and subsoil: [Article 2 of the
United Nations Convention on the law of the Sea, 1982]:-
ü 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.
ü This sovereignty extends to the air space over
the territorial sea as well as to its bed and subsoil.
ü The sovereignty over the territorial sea is
exercised subject to this Convention and to other rules of international law.
Delimitation of the territorial sea between two
opposite or adjacent States with coasts: [Article 15 of the United Nations
Convention on the law of the Sea, 1982]:-
ü Where the coasts of two States are opposite or
adjacent to each other, neither of the two States is entitled, failing
agreement between them to the contrary, to extend its territorial sea beyond
the median line every point of which is equidistant from the nearest points on
the baselines from which the breadth of the territorial seas of each of the two
States is measured. The above provision does not apply, however, where it is
necessary by reason of historic title or other special circumstances to delimit
the territorial seas of the two States in a way which is at variance therewith.
Meaning
of passage: [Article 18 of the United Nations Convention on the law of the Sea,
1982]:-
ü Passage means navigation through the
territorial sea for the purpose of:
o
traversing
that sea without entering internal waters or calling at a roadstead or port
facility outside internal waters; or
o
proceeding
to or from internal waters or a call at such roadstead or port facility.
ü Passage shall be continuous and expeditious.
However, passage includes stopping and anchoring, but only in so far as the
same are incidental to ordinary navigation or are rendered necessary by force majeure
or distress or for the purpose of rendering assistance to persons, ships or
aircraft in danger or distress.
Meaning
of innocent passage: [Article 19 of the United Nations Convention on the law of
the Sea, 1982]:- [How long innocent passage is valid?]
ü Passage is innocent so long as it is not
prejudicial to the peace, good order or security of the coastal State. Such
passage shall take place in conformity with this Convention and with other rules
of international law.
Right
of innocent passage: [Article 17 of the United Nations Convention on the law of
the Sea, 1982]:-
ü Subject to this Convention, ships of all
States, whether coastal or land-locked, enjoy the right of innocent passage
through the territorial sea.
Things
prejudicial to peace, safety, good order of the coastal state: [Article 19 of
the United Nations Convention on the law of the Sea, 1982]:-
ü Passage of a foreign ship shall be considered
to be prejudicial to the peace, good order or security of the coastal State if
in the territorial sea it engages in any of the following activities:
o
any threat
or use of force against the sovereignty, territorial integrity or political
independence of the coastal State, or in any other manner in violation of the
principles of international law embodied in the Charter of the United Nations;
o
any
exercise or practice with weapons of any kind;
o
any act
aimed at collecting information to the prejudice of the defense or security of
the coastal State;
o
any act of
propaganda aimed at affecting the defense or security of the coastal State;
o
the
launching, landing or taking on board of any aircraft;
o
the
launching, landing or taking on board of any military device;
o
the
loading or unloading of any commodity, currency or person contrary to the
customs, fiscal, immigration or sanitary laws and regulations of the coastal
State;
o
any act of
willful and serious pollution contrary to this Convention;
o
any
fishing activities;
o
the
carrying out of research or survey activities;
o
any act
aimed at interfering with any systems of communication or any other facilities
or installations of the coastal State;
o
any other
activity not having a direct bearing on passage.
Powers
of coastal state: [Article 22 of the United Nations Convention on the law of
the Sea, 1982]:-
ü The coastal State may, where necessary having
regard to the safety of navigation, require foreign ships exercising the right
of innocent passage through its territorial sea to use such sea lanes and
traffic separation schemes as it may designate or prescribe for the regulation
of the passage of ships.
ü In particular, tankers, nuclear-powered ships
and ships carrying nuclear or other inherently dangerous or noxious substances
or materials may be required to confine their passage to such sea lanes.
ü In the designation of sea lanes and the
prescription of traffic separation schemes under this article, the coastal
State shall take into account:
o
the
recommendations of the competent international organization;
o
any
channels customarily used for international navigation;
o
the
special characteristics of particular ships and channels; and
o
the
density of traffic.
ü The coastal State shall clearly indicate such
sea lanes and traffic separation schemes on charts to which due publicity shall
be given.
Duties
of the coastal State: [Article 24 of the United Nations Convention on the law
of the Sea, 1982]:-
ü The coastal State shall not hamper the innocent
passage of foreign ships through the territorial sea except in accordance with
this Convention. In particular, in the application of this Convention or of any
laws or regulations adopted in conformity with this Convention, the coastal
State shall not:
o
impose
requirements on foreign ships which have the practical effect of denying or
impairing the right of innocent passage; or
o
discriminate
in form or in fact against the ships of any State or against ships carrying
cargoes to, from or on behalf of any State.
ü The coastal State shall give appropriate
publicity to any danger to navigation, of which it has knowledge, within its
territorial sea.
Charges which may be levied upon foreign ships:
[Article 26 of the United Nations Convention on the law of the Sea, 1982]:-
ü No charge may be levied upon foreign ships by
reason only of their passage through the territorial sea.
ü Charges may be levied upon a foreign ship
passing through the territorial sea as payment only for specific services
rendered to the ship. These charges shall be levied without discrimination.
Criminal jurisdiction on board a foreign ship:
[Article 27 of the United Nations Convention on the law of the Sea, 1982]:-
ü The criminal jurisdiction of the coastal State
should not be exercised on board a foreign ship passing through the territorial
sea to arrest any person or to conduct any investigation in connection with any
crime committed on board the ship during its passage, save only in the
following cases:
o
if the
consequences of the crime extend to the coastal State;
o
if the
crime is of a kind to disturb the peace of the country or the good order of the
territorial sea;
o
if the
assistance of the local authorities has been requested by the master of the
ship or by a diplomatic agent or consular officer of the flag State; or
o
if such
measures are necessary for the suppression of illicit traffic in narcotic drugs
or psychotropic substances.
ü The above provisions do not affect the right of
the coastal State to take any steps authorized by its laws for the purpose of
an arrest or investigation on board a foreign ship passing through the
territorial sea after leaving internal waters.
ü In the
cases provided for in paragraphs 1 and 2, the coastal State shall, if
the master so requests, notify a diplomatic agent or consular officer of the
flag State before taking any steps, and shall facilitate contact between such
agent or officer and the ship's crew. In cases of emergency this notification
may be communicated while the measures are being taken.
ü In considering whether or in what manner an
arrest should be made, the local authorities shall have due regard to the
interests of navigation.
ü Except as provided in Part XII or with
respect to violations of laws and regulations adopted in accordance with
Part V, the coastal State may not take any steps on board a foreign ship
passing through the territorial sea to arrest any person or to conduct any
investigation in connection with any crime committed before the ship entered
the territorial sea, if the ship, proceeding from a foreign port, is only
passing through the territorial sea without entering internal waters.
Civil jurisdiction in relation to foreign ships:
[Article 28 of the United Nations Convention on the law of the Sea, 1982]:-
ü The coastal State should not stop or divert a
foreign ship passing through the territorial sea for the purpose of exercising
civil jurisdiction in relation to a person on board the ship.
ü The coastal State may not levy execution
against or arrest the ship for the purpose of any civil proceedings, save only
in respect of obligations or liabilities assumed or incurred by the ship itself
in the course or for the purpose of its voyage through the waters of the
coastal State.
ü Paragraph 2 is without prejudice to the
right of the coastal State, in accordance with its laws, to levy execution
against or to arrest, for the purpose of any civil proceedings, a foreign ship
lying in the territorial sea, or passing through the territorial sea after
leaving internal waters.
So,
these are the all about of the topic of Territorial Sea.
---------------
Topic: Exclusive Economic Zone:
? Possible questions/points under the
Exclusive Economic Zone topic:-
Ø
Identify Exclusive Economic Zone [Meaning;
origin; quantity(breadth)];
Ø Procedure
of Delimitation of the Exclusive
Economic Zone topic between two
opposite or adjacent States ;
Ø Rights, jurisdiction and duties of the coastal
State in the exclusive economic zone;
Ø Rights and duties of other States in the
exclusive economic zone;
Ø Basis for the resolution of conflicts regarding
the attribution of rights and jurisdiction in the exclusive economic zone;
Ø Criticisms
on the exclusive economic zone.
--------------
Origin &
Meaning of the exclusive economic
zone:-
ü
UNCLOSIII inventions the concept of the EEZ. The
provisions of EEZ in total 21 articles. [Art. 55 to 75 of the United Nations Convention on the law of the Sea, 1982.
ü
The
exclusive economic zone is an area beyond and adjacent to the territorial sea,
subject to the specific legal regime established in this Part, 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.
Breadth of the
exclusive economic zone:-
ü The exclusive economic zone shall not extend
beyond 200 nautical miles from the baselines from which the breadth of the
territorial sea is measured.
Procedure of Delimitation of the Exclusive Economic
Zone topic between two opposite or
adjacent States:-
ü The delimitation of the exclusive economic zone
between States with opposite or adjacent coasts shall be effected by agreement
on the basis of international law, as referred to in Article 38 of the
Statute of the International Court of Justice, in order to achieve an equitable
solution.
Rights,
jurisdiction of the coastal State in the exclusive economic zone [Article 56,
60 of the United Nations
Convention on the law of the Sea, 1982]:-
ü
In the
exclusive economic zone, the coastal State has:
o
sovereign
rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the waters superjacent to
the seabed and of the seabed and its subsoil, and with regard to other
activities for the economic exploitation and exploration of the zone, such as
the production of energy from the water, currents and winds;
o
jurisdiction
as provided for in the relevant provisions of this Convention with regard to:
§ the establishment and use of artificial
islands, installations and structures;
§ marine scientific research;
§ the protection and preservation of the marine
environment;
ü [Art.-60] In the exclusive economic zone, the coastal State shall have the
exclusive right to construct and to authorize and regulate the construction,
operation and use of:
o
artificial
islands;
o
installations
and structures for the purposes provided for in article 56 and other
economic purposes;
o
installations
and structures which may interfere with the exercise of the rights of the
coastal State in the zone.
Duties of the coastal State in the exclusive economic
zone:-
ü It
shall act with the provisions of the law of the sea convention;
ü It
shall determine the allowable catch of the living resources in the EEZ;
ü It
shall ensure that the living resources in the EEZ are not endangered by over
exploitation;
ü It
shall give due notice of conversation & management of laws &
regulations.
Rights
and duties of other States in the exclusive economic zone: [Article 58 of the United Nations Convention on the law of
the Sea, 1982]:-
ü In the exclusive economic zone, all States,
whether coastal or land-locked, enjoy, subject to the relevant provisions of
this Convention, the freedoms referred to in article 87 of navigation and over
flight and of the laying of submarine cables and pipelines, and other
internationally lawful uses of the sea related to these freedoms, such as those
associated with the operation of ships, aircraft and submarine cables and
pipelines, and compatible with the other provisions of this Convention.
ü Articles 88 to 115 and other
pertinent rules of international law apply to the exclusive economic zone in so
far as they are not incompatible with this Part.
ü In exercising their rights and performing their
duties under this Convention in the exclusive economic zone, States shall have
due regard to the rights and duties of the coastal State and shall comply with
the laws and regulations adopted by the coastal State in accordance with the
provisions of this Convention and other rules of international law in so far as
they are not incompatible with this Part.
Basis
for the resolution of conflicts regarding the attribution of rights and
jurisdiction in the exclusive economic zone: [Article 59 of the United Nations Convention on the law of
the Sea, 1982]:-
ü
In cases
where this Convention does not attribute rights or jurisdiction to the coastal
State or to other States within the exclusive economic zone, and a conflict
arises between the interests of the coastal State and any other State or
States, the conflict should be resolved on the basis of equity and in the light
of all the relevant circumstances, taking into account the respective
importance of the interests involved to the parties as well as to the
international community as a whole.
A critical view on exclusive economic zone:
ü
Regime of EEZ cannot assure rights of other
states in the exploitation of living resources. Other states cannot be sure of
overcoming coastal states dishonest attempt unless a portion of the allowable
catch is reserved for them.
ü
EEZ becomes only applicable to living resources at
the presence of the coastal state. 200 NM is a significance portion of the
global ocean. A state that is technologically & scientifically developed
will be more & more benefited. So, it is apprehended that the new emerging
law of the sea will only make the rich richer & the poor poorer.
So, these are the all about the exclusive economic zone.
---------------
Topic: The continental
shelf
? Possible questions/points under the
Exclusive Economic Zone topic:-
Ø Meaning of the continental shelf;
Ø Rights of the coastal State over the
continental shelf;
Ø Procedure
of Delimitation of the continental
shelf topic between two
opposite or adjacent States ;
Ø Differences
between continental shelf & exclusive
economic zone.
--------------
Definition
of the continental shelf [Article 76 of the United Nations Convention on the law of the Sea, 1982]:-
ü The continental shelf of a coastal State comprises
the seabed and subsoil of the submarine areas that extend beyond its
territorial sea throughout the natural prolongation of its land territory to
the outer edge of the continental margin, or to a distance of 200 nautical
miles from the baselines from which the breadth of the territorial sea is
measured where the outer edge of the continental margin does not extend up to
that distance.
Rights
of the coastal State over the continental shelf [Article77 of the United Nations Convention on the law of
the Sea, 1982]:-
ü The coastal State exercises over the
continental shelf sovereign rights for the purpose of exploring it and
exploiting its natural resources.
ü The rights referred to in paragraph 1 are
exclusive in the sense that if the coastal State does not explore the
continental shelf or exploit its natural resources, no one may undertake these
activities without the express consent of the coastal State.
ü The rights of the coastal State over the
continental shelf do not depend on occupation, effective or notional, or on any
express proclamation.
ü The natural resources referred to in this Part
consist of the mineral and other non-living resources of the seabed and subsoil
together with living organisms belonging to sedentary species, that is to say,
organisms which, at the harvestable stage, either are immobile on or under the
seabed or are unable to move except in constant physical contact with the
seabed or the subsoil.
Delimitation
of the continental shelf between States with opposite or adjacent coasts [Article
83 of the United Nations
Convention on the law of the Sea, 1982]:-
ü The delimitation of the continental shelf
between States with opposite or adjacent coasts shall be effected by agreement
on the basis of international law, as referred to in Article 38 of the
Statute of the International Court of Justice, in order to achieve an equitable
solution.
ü If no agreement can be reached within a
reasonable period of time, the States concerned shall resort to the procedures
provided for in Part XV.
ü Pending agreement as provided for in
paragraph 1, the States concerned, in a spirit of understanding and
cooperation, shall make every effort to enter into provisional arrangements of
a practical nature and, during this transitional period, not to jeopardize or
hamper the reaching of the final agreement. Such arrangements shall be without
prejudice to the final delimitation.
ü Where there is an agreement in force between
the States concerned, questions relating to the delimitation of the continental
shelf shall be determined in accordance with the provisions of that agreement.
Differences
between continental shelf & exclusive economic zone
ü
According to MK Nawaz, EEZ differs from CS in
that it extends to the living and non-living resources in the area of sea, the
outer limits of which are measured by distances rather than by dept or
exploitability.
ü
The legal regime of CS is largely governed by
international customary laws. But LOS has created a specific legal regime for
EEZ.
ü
EEZ: Living-Non-living both resources
(water/sea-bed/subsoil), But, CS: Only natural resources/sedentary species
(sea-bed/subsoil)
ü
IN point of fact, 200 NM EEZ is less complicated
than CS. Prof. Brown says, ‘the basic fact is that the EEZ is an entirely
artificial man-made zone in the zone in the sense that it bears no relation to
natural features such as the continental margin’.
ü
In Libyan Arab Jamahiriya vs. Malta ICJ Report
1985, Para 35, it was pointed out that, ‘Although
there can be CS where there is no EEZ, sometimes there can not be EEZ without
corresponding continental shelf’.
-------------
Topic: Jurisdiction of the high sea
? Possible questions/points under the Exclusive Economic Zone
topic:-
Ø Meaning
of Jurisdiction of the high sea;
Ø Fundamentals
on high sea;
Ø Meaning of Common heritage of mankind in the
Law of the Sea;
v Legal status of the Area and its resources;
v Use of the Area exclusively for peaceful
purposes;
v Benefit of mankind etc.
Ø Basic
elements of Common heritage of mankind;
Ø Challenge
before Common heritage of mankind;
Ø The
future of bio-prospecting in Common heritage of mankind.
-------------
Jurisdiction
of the high sea/ Freedoms of high sea: [Article 87 of the United Nations Convention on the law of
the Sea, 1982]:-]
ü The high seas are open to all States, whether
coastal or land-locked. Freedom of the high seas is exercised under the
conditions laid down by this Convention and by other rules of international
law. It comprises, inter alia, both for coastal and land-locked
States:
o
freedom of
navigation;
o
freedom of
over flight;
o
freedom to
lay submarine cables and pipelines, subject to Part VI;
o
freedom to
construct artificial islands and other installations permitted under
international law, subject to Part VI;
o
freedom of
fishing, subject to the conditions laid down in section 2;
o
freedom of
scientific research, subject to Parts VI and XIII.
ü These freedoms shall be exercised by all States
with due regard for the interests of other States in their exercise of the
freedom of the high seas, and also with due regard for the rights under this Convention
with respect to activities in the Area.
Fundamentals
on high sea: [Articles 88, 89, 90 of the United Nations Convention on the law of the Sea, 1982]:-
ü Article 88: The high seas shall be reserved for
peaceful purposes.
ü Article 89: No State may validly purport to
subject any part of the high seas to its sovereignty.
ü Article 90: Every State, whether coastal or
land-locked, has the right to sail ships flying its flag on the high seas.
Common heritage of mankind [Articles 136, 137,
140, 141 of the United Nations Convention on the law of the Sea, 1982]:-
ü
The Area
and its resources are the common heritage of mankind. [Art. 136 of the United
Nations Convention on the law of the Sea, 1982]:-
ü
Legal
status of the Area and its resources [Article137 of the United Nations
Convention on the law of the Sea, 1982]:-
o No State shall claim or exercise sovereignty or
sovereign rights over any part of the Area or its resources, nor shall any
State or natural or juridical person appropriate any part thereof. No such claim
or exercise of sovereignty or sovereign rights nor such appropriation shall be
recognized.
o
All rights
in the resources of the Area are vested in mankind as a whole, on whose behalf
the Authority shall act. These resources are not subject to alienation. The
minerals recovered from the Area, however, may only be alienated in accordance
with this Part and the rules, regulations and procedures of the Authority.
o
No State
or natural or juridical person shall claim, acquire or exercise rights with
respect to the minerals recovered from the Area except in accordance with this
Part. Otherwise, no such claim, acquisition or exercise of such rights shall be
recognized.
ü
Use of the
Area exclusively for peaceful purposes [Article141 of the United Nations
Convention on the law of the Sea, 1982]:-
o
The Area
shall be open to use exclusively for peaceful purposes by all States, whether
coastal or land-locked, without discrimination and without prejudice to the
other provisions of this Part.
ü Benefit of mankind [Article140 of the United
Nations Convention on the law of the Sea, 1982]:-
o
Activities
in the Area shall be carried out for the benefit of mankind as a whole,
irrespective of the geographical location of States, whether coastal or
land-locked, and taking into particular consideration the interests and needs
of developing States and of peoples who have not attained full independence or
other self-governing status recognized by the United Nations.
o
The
Authority shall provide for the equitable sharing of financial and other
economic benefits derived from activities in the Area through any appropriate
mechanism, on a non-discriminatory basis.
Basic
elements of Common heritage of mankind:
ü
The basic elements of the regime of common
heritage of mankind, applying to the seabed beyond the limits of national
jurisdiction, are the prohibition of national appropriation, the destination of
the seabed for peaceful purposes, the use of the seabed & its resources for
the benefit of mankind as a whole with particular consideration for the
interest & needs of developing countries, the establishment of an
international organization entitled to act on behalf of mankind in the exercise
of rights over the resources.
Challenge before Common
heritage of mankind:
ü
Reaching deep seabed, extreme environments &
maintaining alive the sampled organism as well as culturing them, requires
sophisticated & expensive technologies.
The future of bio-prospecting in
Common heritage of mankind:
ü
Deep seabed resources hold enormous potential
for many types of commercial applications, including health sector, for
industrial processes. A brief search of patent office databases revealed that
compounds from seabed organism have been used as basis for potential cancer
fighting drugs, commercial protection products providing higher resistance to
ultraviolet & heat exposure, & for preventing skin inflammation,
anti-allergy agents.
So,
these are the all about the Jurisdiction of the high sea.
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