Contents
Contents
Law
of sea
Introduction;
Law of
the Sea, is a branch of international
law concerned with public order at sea.
Much of this law is codified in the United Nations Convention on the Law of the
Sea, signed December 10, 1982. The convention, described as a “constitution for
the oceans,” represents an attempt to codify international law regarding territorial
waters, sea-lanes, and ocean resources. It came into force in 1994 after it had been ratified
by the requisite 60 countries; by the early 21st century the convention had
been ratified by more than 150 countries.
Brief history;
The
seas have historically performed two important functions; first, as a medium of
communication, and secondly as a vast reservoir of resources, both living and
non-living. Both of these functions have stimulated the development of legal
rules.
Sea
is the 70% of the Globe. And it was not possible to regulate the sea partially
after 1500 A.D. the time of great maritime discovery by European navigators,
claims were laid by the powerful maritime states to the exercise of sovereignty
over specific portion of the open sea.
At
that time the seas were thought capable of subjection to national
sovereignties. The Portuguese in particular in the seventeenth century
proclaimed huge tracts of the high seas as part of their territorial domain
claiming sovereignty over the whole the Indian Ocean and very great portion of
the Atlantic, Spain arrogated rights to herself over the Pacific and the Gulf
of Mexico, and even Great Britain laid claim to the Narrow Seas and the North
Seas.
· Hugo Grotius;
But
these claims stimulated a response by Grotius through his book Mare Liberum,
(Freedom of the Sea) 1609 who elaborated the doctrine of the open seas, whereby
the oceans as res communis were to be accessible to all nations but
incapable of appropriation. (Res communis is a Latin
term derived from Roman law, which means the common
heritage of all humankind, not subject to the appropriation by or sovereignty).
Sea
disputes raised at massive level in his time, between two empires i.e. Portugal
and Dutch, and these disputes were in relation to their colony/colonial trade
to establish monopoly on the East India Trade Route. Hugo Grotius was the legal
advisor/counsel to the Dutch East India Company. He formulated two main
principles;
His
principles are;
1.
Sea is international territory.
2.
All nations are free to use it for sea trade.
Grotius objections predominantly based on two grounds;
1.
No ocean can be
the property of nation because it is impossible for any nation effectively to
take it into possession by occupation.
2.
Nature does not
give a right to anybody to appropriate things that may be used by everybody and
are exhaustible… in other words the open sea is a res gentium or res
extra commercium.
Before these objections no concept of safe passage was existed.
Hugo Grotius principles also have some philosophical backing; i.e.
1.
It is most
specific and unimpeachable principle of the law of nations and called the first
primary rule, based on, that every nation is free to travel to every other
nation and to trade with it.
2.
This
self-evident and immutable right to travel and to trade which required, “a
right of innocent passage over land and a similar right of innocent passage at
sea”.
These principles remained unchallenged and accept worldwide, later
on become the base for right of innocent passage. His work got translated into
English and in his book Mare Liberum,
(Freedom of the Sea) published in 1609. This book is again published in 2004 as
“The freedom of the sea or the right which belongs to the Dutch to take part in
the East India Trade”.
This view prevailed and freedom of high seas rapidly became a basic
principle of international law. Much of the history of the law of sea has
centred on the extent of the territorial sea. Beyond
the territorial sea, other jurisdictional zones have been in process of
development. Coastal states may now exercise particular jurisdictional functions
in the contiguous zone, and the trend of international law today is moving
rapidly in favour of even larger zones in which the coastal state may enjoy
certain rights to the exclusion of other nations, such as fishery zones,
continental shelves and, more recently, exclusive economic zones.
The
law relating to the seas, therefore, has been in a state of flux for several
decades and a series of conferences have been held, which led to the four 1958
Conventions on the Law of the Sea;
1.
The convention on the Territorial Sea and Contiguous Zone
2.
The convention on the High Seas
3.
The convention on the Continental Shelf, and
4.
The convention on Fishing and Conservation of the Living Resources
of the High Seas.
These
were the first codifications on the Law of Sea, encompassing in them major
customary rules of international law on the law of sea.
The
pressures leading to the Law of the Sea Conference, which lasted between 1974
and 1982 and involved a very wide range of states and international
organisations, included a variety of economic, political and strategic factors.
Many Third World states wished to develop the exclusive economic zone idea, by
which coastal states would have extensive rights over a 200-mile zone beyond
the territorial sea. Western states were desirous of protecting their
navigation routes. The effect of this kaleidoscopic range of interests was very
marked and led to the final draft of 1982 convention.
Recent history/Background of UNCLOS 1982;
Negotiated in the 1970s, the treaty
was heavily influenced by the "New International Economic Order," a
set of economic principles first formally advanced at the United Nations
Conference on Trade and Development (UNCTAD). That agenda called for
"fairer" terms of trade and development financing for the so-called
under-developed and developing nations.
The Law of the Sea Treaty calls for;
The Law of the Sea Treaty calls for;
·
Technology transfers and
·
Wealth transfers from developed to undeveloped nations.
·
It also requires parties to the treaty to adopt regulations and
laws to control pollution of the marine environment.
Such provisions were among the
reasons President Ronald Reagan rejected the treaty in 1982.
In additional to the economic provisions, the treaty also establishes specific jurisdictional limits on the ocean area that countries may claim, including a 12 mile territorial sea limit and a 200 mile exclusive economic zone limit.
Some proponents of the treaty believe that the treaty will establish a system of property rights for mineral extraction in deep sea beds, making the investment in such ventures more attractive.
Notwithstanding concerns raised about the Law of the Sea Treaty, the U.S. Senate Foreign Relations Committee recommended U.S. accession to the treaty in a unanimous vote in March 2004.
Despite the significant passage of time, a vote of the entire U.S. Senate has yet to be scheduled.
United Nations Convention on Law of Sea 1982;
The
1982 Convention contains 320 articles and 9 Annexes. It was adopted by 130
votes to 4, with 17 abstentions. The Convention entered into force on 16
November 1994, twelve months after the required 60 ratifications.
Many
of the provisions in the 1982 Convention repeat principles enshrined in the
earlier instruments and others have since become customary rules, but many new
rules were also proposed in 1982 convention.
The
purpose of this convention is to establish a comprehensive set of rules
governing the occeans and to replace previous two conventions;
·
UNCLOS (I) 1958
·
UNCLOS (II) 1960
And
now UNCLOS (III) 1982.
Navigational
rights, territorial sea limits, economic jurisdiction, legal status of
resources on the seabed beyond the limits of national jurisdiction, passage of
ships through narrow straits, conservation and management of living marine resources,
protection of the marine environment, a marine research regime and, a more
unique feature, a binding procedure for settlement of disputes between States; these
are among the important features of the treaty.
In
short, the Convention is an unprecedented attempt by the international
community to regulate all aspects of the resources of the sea and uses of the
ocean, and thus bring a stable order to mankind's very source of life.
The
convention deals with many important sea related issue, e.g.
1.
Territorial sea
2.
Internal waters
3.
Contiguous zone
4.
Exclusive Economic Zone
5.
Continental shelf
Furthermore
it also deals with,
Ø High
Seas
Ø Archipelagic
States
Ø Regime
of Islands
Ø Enclosed
or Semi Enclosed Seas
Ø The
Area
Ø Protection
and Preservation of the Marine Environment
Ø Marine
Scientific Research
Ø Development
and Transfer of Marine Technology, and
Ø Settlement
of Disputes
1. Territorial Sea;
Article
2 of the convention proclaims that the sovereignty of a coastal state extends beyond
its land territory and internal waters. Article provides as follows;
Article 2; Legal
status of the territorial sea, of the air space over the territorial sea and of
its bed and subsoil;
1.
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.
2.
This sovereignty extends to the air
space over the territorial sea as well as to its bed and subsoil.
3.
The sovereignty over the territorial
sea is exercised subject to this Convention and to other rules of international
law.
The width of Territorial Sea;
· Cannon shot rule;
In
1702 the Bynkershoek published his work, De dominio maris dissertatio
(Essay on Sovereignty over the sea) in which he adopted the rule of cannon shot
from shore batteries (territorial sovereignty extends as far as the power of
arms carries). Originally, the ‘cannonshot’ rule defined the width required in
terms of the range of shore-based artillery, but at the turn of the nineteenth
century, this was transmuted into the 3-mile rule.
· Under the conventions on law sea;
The
1958 Geneva Convention on the Territorial Sea did not include an article on the
subject because of disagreements among the states, while the 1960 Geneva
Conference failed to accept a United States–Canadian proposal for a 6-mile
territorial sea. However the Article 3 of the 1982 Convention, however, notes
that all states have the right to establish the breadth of the territorial sea
up to a limit not exceeding 12 nautical miles from the baselines.
Rights of the state over Territorial Sea;
The
state enjoys following rights;
Ø The
right to fish, and resources
Ø Right
in the air-space over territorial sea
Ø Rights
to enact laws and regulations over territorial sea
Ø Right
to prevent passage which is not innocent
Ø The
exercise of criminal and civil jurisdiction on board of foreign ship under
certain special circumstances.
Right to innocent passage over Territorial Sea;
According to the 1982 convention, each country’s sovereign territorial waters extend to a maximum of 12 nautical miles (22
km) beyond its coast, but foreign vessels are granted the right of innocent
passage through this zone. Passage means
navigation through the territorial sea for the purpose of traversing that sea
without entering into internal waters or proceedings to or from internal
waters. Such passage must be continuous and expeditious, however it may include
stopping and anchoring in so far as they are incidental to ordinary navigation
or by force majeure or distress or for any necessary purpose. Passage must be innocent, and it is deemed
innocent as long as a ship refrains from engaging in certain prohibited
activities, including weapons testing, spying, smuggling, serious pollution, fishing, or scientific research.
Article
17 of the 1982 Convention lays down the following principle: ‘ships of all
states, whether coastal or land-locked, enjoy the right of innocent passage
through the territorial sea’.
2. Internal Waters;
Article
8 of convention provides that the;
Internal
waters are deemed to be such parts of the seas as are not either the high seas
or relevant zones or the territorial sea, and are accordingly classed as
appertaining to the land territory of the coastal state. Internal waters, whether
harbours, lakes or rivers, are such waters as are to be found on the landward
side of the baselines from which the width of the territorial and other zones
is measured, and are assimilated with the territory of the state. They differ
from the territorial sea primarily in that there does not exist any right of
innocent passage from which the shipping of other states may benefit.
Case;
In R
v. Anderson, in 1868, the Court of Criminal Appeal in the UK declared that an
American national who had committed manslaughter on board a British vessel in
French internal waters was subject to the jurisdiction of the British courts,
even though he was also within the sovereignty of French justice (and American
justice by reason of his nationality), and thus could be correctly convicted
under English law.
3. Contiguous Zone;
It
can be said to be, a belt of waters adjacent to the limits of the maritime
belt, not subject to the sovereignty of the littoral state, but within which
the littoral state could exercise certain rights of control for the purpose of
its health or other regulations.
Such
restricted jurisdiction zones have been established or asserted for a number of
reasons: for instance;
·
To prevent infringement of customs, immigration or sanitary laws of
the coastal state, or
·
To conserve fishing stocks in a particular area, or
·
To enable the coastal state to have exclusive or principal rights
to the resources of the proclaimed zone.
The
idea of a contiguous zone (i.e. a zone bordering upon the territorial sea) was
virtually formulated as an authoritative and consistent doctrine in the 1930s
by the French writer Gidel, and it appeared in the Convention on the
Territorial Sea.
Article
24 declared that:
“In
a zone of the high seas contiguous to its territorial sea, the coastal state may
exercise the control necessary to:
a.
Prevent infringement of its customs, fiscal, immigration or
sanitary regulations within its territory or territorial sea;
b.
Punish infringement of the above regulations committed within its territory
or territorial sea”.
Thus,
such contiguous zones were clearly differentiated from claims to full
sovereignty as parts of the territorial sea, by being referred to as part of
the high seas over which the coastal state may exercise particular rights.
Article 33; Contiguous zone
1.
In a zone contiguous to its
territorial sea, described as the contiguous zone, the coastal State may
exercise the control necessary to:
(a)
Prevent infringement of its customs,
fiscal, immigration or sanitary laws and regulations within its territory or
territorial sea;
(b)
Punish infringement of the above
laws and regulations committed within its territory or territorial sea.
2.
The contiguous zone may not
extend beyond 24 nautical miles from the baselines from which the breadth
of the territorial sea is measured.
4. Exclusive Economic Zone;
The
UNCLOS will perhaps always be remembered in the history of international law as
having given birth to, or at least nurtured to full strength, the concept of
the exclusive economic zone (EEZ). The convention deals with it under Article
55-75. This concept has recolonized the law of sea.
This
zone has developed out of earlier, more tentative claims, particularly relating
to fishing zones and different states had claimed in history fishing zones of
widely varying widths. Indeed, the International Court in the Fisheries
Jurisdiction cases in 1974 stated that the concept of the fishing zone, the
area in which a state may claim exclusive jurisdiction independently of its
territorial sea for this purpose, had crystallised as customary law in recent
years.
EEZ
marks a compromise between those states seeking a 200-mile territorial sea and
those wishing a more restricted system of coastal state power.
The definition
of EEZ was provided under Article 55 and 57, as;
“An
area beyond and adjacent to the territorial sea, not extending beyond 200
nautical miles from the baselines from which the breadth of the territorial sea
is measured”.
In
other words Article 55 provides that the zone starts from the outer limit of
the territorial sea, but by article 57 shall not extend beyond 200 nautical
miles from the baselines from which the breadth of the territorial sea is
measured.
Furthermore
within this zone, the territorial state does not have the equivalent of
territorial sovereignty, but sovereign rights for the purpose of exploring,
exploiting, conserving and managing the resources of the EEZ, and jurisdiction,
with due regard to the rights of other states, with respect to the
establishment and use of artificial islands and structures, marine scientific
research, and the protection and preservation of the marine environment
(Article 56).
Article
58 lays down the rights and duties of other states in the exclusive economic
zone. These are basically the high seas freedom of navigation, overflight and
laying of submarine cables and pipelines.
Article
59 provides that in cases of conflict over the attribution of rights and
jurisdiction in the zone, the resolution is to be on the basis of equity and in
the light of all the relevant circumstances.
Article
60(2) provides that in the exclusive economic zone, the coastal state has
jurisdiction to apply customs laws and regulations in respect of artificial
islands, installations and structures.
5. Continental shelf;
The
continental shelf is a geological expression referring to the ledges that
project from the continental landmass into the seas and which are covered with
only a relatively shallow layer of water (some 150–200 meters) and which
eventually fall away into the ocean depths (some thousands of meters deep).
These ledges or shelves take up some 7 to 8 per cent of the total area of ocean
and their extent varies considerably from place to place.
The
vital fact about the continental shelves is that they are rich in oil and gas
resources and quite often are host to extensive fishing grounds. This
stimulated a round of appropriations by coastal states which gradually altered
the legal status of the continental shelf from being part of the high seas as exclusive
to the coastal state.
Case;
In
the North Sea Continental Shelf cases, 1969 the International Court of
Justice noted that:
“the
rights of the coastal state in respect of the area of continental shelf that
constitutes a natural prolongation of its land territory into and under the sea
exist ipso facto and ab initio, by virtue of its sovereignty over
the land, and as an extension of it in an exercise of sovereign rights for the
purpose of exploring the seabed and exploiting its natural resources. In short
there is here an inherent right”.
And Article
76-85 deals with continental shelf. Through Article 76 Continental shelf is defined
as under;
“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”.
Thus,
an arbitrary, legal and non-geographical definition is provided. Where the
continental margin actually extends beyond 200 miles, geographical factors are
to be taken into account in establishing the limit, which in any event shall
not exceed either 350 miles from the baselines or 100 miles from the
2,500-metre isobaths.
Case study of Pakistan;
Published in Dawn, March 21st, 2015
ISLAMABAD: Pakistan’s seabed territory grew by
about 50,000 square kilometres after a UN body accepted Islamabad’s claim for
extension of sea limits.
“On 19 March 2015, United Nations’ Commission
on Limits of Continental Shelf (UNCLCS) completed its review and accepted
Pakistan’s claim for extension of its continental shelf limits, thereby extending
Pakistan’s sea limits from 200 nautical miles to 350 nautical miles,” Pakistan
Navy’s media directorate said.
Following the acceptance of the claim,
Pakistan’s offshore territory of 240,000sqkm would expand by another 50,000sqkm
allowing the country to benefit from the natural resources contained in it.
The United Nations Convention on the Law of the
Sea (UNCLOS) grants special rights to the coastal states with regards to
exploration and use of marine resources, including energy production in the
area in its jurisdiction, which is also described as exclusive economic zone.
Under the UNCLOS, coastal countries are allowed
economic control of the waters and seabed up to 200nm from their shores. The
international treaty allows countries to further claim an extended continental
shelf stretching up to 350nm from the baselines of its territorial sea if they
could prove that the claimed area was a natural prolongation of their land
territory.
Pakistan welcomed the UN commission’s verdict, terming
it a “landmark achievement and a momentous event in the country’s history”.
Adviser to Prime Minister on Foreign Affairs
and National Security Sartaj Aziz in a statement said: “It is of great
satisfaction for us that Pakistan’s claim at the United Nations’ Commission on
Limits of Continental Shelf, for extension of outer limits of its continental
shelf, has been unanimously approved.”
This development, he said, would boost
Pakistan’s efforts aimed at sustainable socioeconomic uplift of the people of
Pakistan.
Article 76(4) to (6) of the UNCLOS prescribes a
complicated formula for claiming such an extension. The claimant state has to
present legal and scientific basis for its claim before a 21-member commission
of experts. The evidence is accompanied by maps to prove that the claimed
continental shelf is extension of its territory and fits the description given
under Law of Sea Treaty of 1982.
Pakistan had filed its case with the UNCLCS on
April 30, 2009. The application was preceded by a four-year extensive study
jointly conducted by the Pakistan Navy and National Institute of Oceanography
under the patronage of Ministry of Science and Technology.
A seven-member sub-commission of the UNCLCS
evaluated Pakistan’s case for a year and accepted Pakistan’s claim.
Some of the claimed territory overlapped Omani
claim. It is believed that the verdict in favour of Pakistan was announced
after successful negotiations with Oman.
Mr Aziz in his statement thanked the government
of Oman.
“We are thankful to the brotherly country of
Oman for its understanding and cooperation in the matter,” the adviser said.
Law
of sea
Introduction;
Law of
the Sea, is a branch of international
law concerned with public order at sea.
Much of this law is codified in the United Nations Convention on the Law of the
Sea, signed December 10, 1982. The convention, described as a “constitution for
the oceans,” represents an attempt to codify international law regarding territorial
waters, sea-lanes, and ocean resources. It came into force in 1994 after it had been ratified
by the requisite 60 countries; by the early 21st century the convention had
been ratified by more than 150 countries.
Brief history;
The
seas have historically performed two important functions; first, as a medium of
communication, and secondly as a vast reservoir of resources, both living and
non-living. Both of these functions have stimulated the development of legal
rules.
Sea
is the 70% of the Globe. And it was not possible to regulate the sea partially
after 1500 A.D. the time of great maritime discovery by European navigators,
claims were laid by the powerful maritime states to the exercise of sovereignty
over specific portion of the open sea.
At
that time the seas were thought capable of subjection to national
sovereignties. The Portuguese in particular in the seventeenth century
proclaimed huge tracts of the high seas as part of their territorial domain
claiming sovereignty over the whole the Indian Ocean and very great portion of
the Atlantic, Spain arrogated rights to herself over the Pacific and the Gulf
of Mexico, and even Great Britain laid claim to the Narrow Seas and the North
Seas.
· Hugo Grotius;
But
these claims stimulated a response by Grotius through his book Mare Liberum,
(Freedom of the Sea) 1609 who elaborated the doctrine of the open seas, whereby
the oceans as res communis were to be accessible to all nations but
incapable of appropriation. (Res communis is a Latin
term derived from Roman law, which means the common
heritage of all humankind, not subject to the appropriation by or sovereignty).
Sea
disputes raised at massive level in his time, between two empires i.e. Portugal
and Dutch, and these disputes were in relation to their colony/colonial trade
to establish monopoly on the East India Trade Route. Hugo Grotius was the legal
advisor/counsel to the Dutch East India Company. He formulated two main
principles;
His
principles are;
1.
Sea is international territory.
2.
All nations are free to use it for sea trade.
Grotius objections predominantly based on two grounds;
1.
No ocean can be
the property of nation because it is impossible for any nation effectively to
take it into possession by occupation.
2.
Nature does not
give a right to anybody to appropriate things that may be used by everybody and
are exhaustible… in other words the open sea is a res gentium or res
extra commercium.
Before these objections no concept of safe passage was existed.
Hugo Grotius principles also have some philosophical backing; i.e.
1.
It is most
specific and unimpeachable principle of the law of nations and called the first
primary rule, based on, that every nation is free to travel to every other
nation and to trade with it.
2.
This
self-evident and immutable right to travel and to trade which required, “a
right of innocent passage over land and a similar right of innocent passage at
sea”.
These principles remained unchallenged and accept worldwide, later
on become the base for right of innocent passage. His work got translated into
English and in his book Mare Liberum,
(Freedom of the Sea) published in 1609. This book is again published in 2004 as
“The freedom of the sea or the right which belongs to the Dutch to take part in
the East India Trade”.
This view prevailed and freedom of high seas rapidly became a basic
principle of international law. Much of the history of the law of sea has
centred on the extent of the territorial sea. Beyond
the territorial sea, other jurisdictional zones have been in process of
development. Coastal states may now exercise particular jurisdictional functions
in the contiguous zone, and the trend of international law today is moving
rapidly in favour of even larger zones in which the coastal state may enjoy
certain rights to the exclusion of other nations, such as fishery zones,
continental shelves and, more recently, exclusive economic zones.
The
law relating to the seas, therefore, has been in a state of flux for several
decades and a series of conferences have been held, which led to the four 1958
Conventions on the Law of the Sea;
1.
The convention on the Territorial Sea and Contiguous Zone
2.
The convention on the High Seas
3.
The convention on the Continental Shelf, and
4.
The convention on Fishing and Conservation of the Living Resources
of the High Seas.
These
were the first codifications on the Law of Sea, encompassing in them major
customary rules of international law on the law of sea.
The
pressures leading to the Law of the Sea Conference, which lasted between 1974
and 1982 and involved a very wide range of states and international
organisations, included a variety of economic, political and strategic factors.
Many Third World states wished to develop the exclusive economic zone idea, by
which coastal states would have extensive rights over a 200-mile zone beyond
the territorial sea. Western states were desirous of protecting their
navigation routes. The effect of this kaleidoscopic range of interests was very
marked and led to the final draft of 1982 convention.
Recent history/Background of UNCLOS 1982;
Negotiated in the 1970s, the treaty
was heavily influenced by the "New International Economic Order," a
set of economic principles first formally advanced at the United Nations
Conference on Trade and Development (UNCTAD). That agenda called for
"fairer" terms of trade and development financing for the so-called
under-developed and developing nations.
The Law of the Sea Treaty calls for;
The Law of the Sea Treaty calls for;
·
Technology transfers and
·
Wealth transfers from developed to undeveloped nations.
·
It also requires parties to the treaty to adopt regulations and
laws to control pollution of the marine environment.
Such provisions were among the
reasons President Ronald Reagan rejected the treaty in 1982.
In additional to the economic provisions, the treaty also establishes specific jurisdictional limits on the ocean area that countries may claim, including a 12 mile territorial sea limit and a 200 mile exclusive economic zone limit.
Some proponents of the treaty believe that the treaty will establish a system of property rights for mineral extraction in deep sea beds, making the investment in such ventures more attractive.
Notwithstanding concerns raised about the Law of the Sea Treaty, the U.S. Senate Foreign Relations Committee recommended U.S. accession to the treaty in a unanimous vote in March 2004.
Despite the significant passage of time, a vote of the entire U.S. Senate has yet to be scheduled.
United Nations Convention on Law of Sea 1982;
The
1982 Convention contains 320 articles and 9 Annexes. It was adopted by 130
votes to 4, with 17 abstentions. The Convention entered into force on 16
November 1994, twelve months after the required 60 ratifications.
Many
of the provisions in the 1982 Convention repeat principles enshrined in the
earlier instruments and others have since become customary rules, but many new
rules were also proposed in 1982 convention.
The
purpose of this convention is to establish a comprehensive set of rules
governing the occeans and to replace previous two conventions;
·
UNCLOS (I) 1958
·
UNCLOS (II) 1960
And
now UNCLOS (III) 1982.
Navigational
rights, territorial sea limits, economic jurisdiction, legal status of
resources on the seabed beyond the limits of national jurisdiction, passage of
ships through narrow straits, conservation and management of living marine resources,
protection of the marine environment, a marine research regime and, a more
unique feature, a binding procedure for settlement of disputes between States; these
are among the important features of the treaty.
In
short, the Convention is an unprecedented attempt by the international
community to regulate all aspects of the resources of the sea and uses of the
ocean, and thus bring a stable order to mankind's very source of life.
The
convention deals with many important sea related issue, e.g.
1.
Territorial sea
2.
Internal waters
3.
Contiguous zone
4.
Exclusive Economic Zone
5.
Continental shelf
Furthermore
it also deals with,
Ø High
Seas
Ø Archipelagic
States
Ø Regime
of Islands
Ø Enclosed
or Semi Enclosed Seas
Ø The
Area
Ø Protection
and Preservation of the Marine Environment
Ø Marine
Scientific Research
Ø Development
and Transfer of Marine Technology, and
Ø Settlement
of Disputes
1. Territorial Sea;
Article
2 of the convention proclaims that the sovereignty of a coastal state extends beyond
its land territory and internal waters. Article provides as follows;
Article 2; Legal
status of the territorial sea, of the air space over the territorial sea and of
its bed and subsoil;
1.
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.
2.
This sovereignty extends to the air
space over the territorial sea as well as to its bed and subsoil.
3.
The sovereignty over the territorial
sea is exercised subject to this Convention and to other rules of international
law.
The width of Territorial Sea;
· Cannon shot rule;
In
1702 the Bynkershoek published his work, De dominio maris dissertatio
(Essay on Sovereignty over the sea) in which he adopted the rule of cannon shot
from shore batteries (territorial sovereignty extends as far as the power of
arms carries). Originally, the ‘cannonshot’ rule defined the width required in
terms of the range of shore-based artillery, but at the turn of the nineteenth
century, this was transmuted into the 3-mile rule.
· Under the conventions on law sea;
The
1958 Geneva Convention on the Territorial Sea did not include an article on the
subject because of disagreements among the states, while the 1960 Geneva
Conference failed to accept a United States–Canadian proposal for a 6-mile
territorial sea. However the Article 3 of the 1982 Convention, however, notes
that all states have the right to establish the breadth of the territorial sea
up to a limit not exceeding 12 nautical miles from the baselines.
Rights of the state over Territorial Sea;
The
state enjoys following rights;
Ø The
right to fish, and resources
Ø Right
in the air-space over territorial sea
Ø Rights
to enact laws and regulations over territorial sea
Ø Right
to prevent passage which is not innocent
Ø The
exercise of criminal and civil jurisdiction on board of foreign ship under
certain special circumstances.
Right to innocent passage over Territorial Sea;
According to the 1982 convention, each country’s sovereign territorial waters extend to a maximum of 12 nautical miles (22
km) beyond its coast, but foreign vessels are granted the right of innocent
passage through this zone. Passage means
navigation through the territorial sea for the purpose of traversing that sea
without entering into internal waters or proceedings to or from internal
waters. Such passage must be continuous and expeditious, however it may include
stopping and anchoring in so far as they are incidental to ordinary navigation
or by force majeure or distress or for any necessary purpose. Passage must be innocent, and it is deemed
innocent as long as a ship refrains from engaging in certain prohibited
activities, including weapons testing, spying, smuggling, serious pollution, fishing, or scientific research.
Article
17 of the 1982 Convention lays down the following principle: ‘ships of all
states, whether coastal or land-locked, enjoy the right of innocent passage
through the territorial sea’.
2. Internal Waters;
Article
8 of convention provides that the;
Internal
waters are deemed to be such parts of the seas as are not either the high seas
or relevant zones or the territorial sea, and are accordingly classed as
appertaining to the land territory of the coastal state. Internal waters, whether
harbours, lakes or rivers, are such waters as are to be found on the landward
side of the baselines from which the width of the territorial and other zones
is measured, and are assimilated with the territory of the state. They differ
from the territorial sea primarily in that there does not exist any right of
innocent passage from which the shipping of other states may benefit.
Case;
In R
v. Anderson, in 1868, the Court of Criminal Appeal in the UK declared that an
American national who had committed manslaughter on board a British vessel in
French internal waters was subject to the jurisdiction of the British courts,
even though he was also within the sovereignty of French justice (and American
justice by reason of his nationality), and thus could be correctly convicted
under English law.
3. Contiguous Zone;
It
can be said to be, a belt of waters adjacent to the limits of the maritime
belt, not subject to the sovereignty of the littoral state, but within which
the littoral state could exercise certain rights of control for the purpose of
its health or other regulations.
Such
restricted jurisdiction zones have been established or asserted for a number of
reasons: for instance;
·
To prevent infringement of customs, immigration or sanitary laws of
the coastal state, or
·
To conserve fishing stocks in a particular area, or
·
To enable the coastal state to have exclusive or principal rights
to the resources of the proclaimed zone.
The
idea of a contiguous zone (i.e. a zone bordering upon the territorial sea) was
virtually formulated as an authoritative and consistent doctrine in the 1930s
by the French writer Gidel, and it appeared in the Convention on the
Territorial Sea.
Article
24 declared that:
“In
a zone of the high seas contiguous to its territorial sea, the coastal state may
exercise the control necessary to:
a.
Prevent infringement of its customs, fiscal, immigration or
sanitary regulations within its territory or territorial sea;
b.
Punish infringement of the above regulations committed within its territory
or territorial sea”.
Thus,
such contiguous zones were clearly differentiated from claims to full
sovereignty as parts of the territorial sea, by being referred to as part of
the high seas over which the coastal state may exercise particular rights.
Article 33; Contiguous zone
1.
In a zone contiguous to its
territorial sea, described as the contiguous zone, the coastal State may
exercise the control necessary to:
(a)
Prevent infringement of its customs,
fiscal, immigration or sanitary laws and regulations within its territory or
territorial sea;
(b)
Punish infringement of the above
laws and regulations committed within its territory or territorial sea.
2.
The contiguous zone may not
extend beyond 24 nautical miles from the baselines from which the breadth
of the territorial sea is measured.
4. Exclusive Economic Zone;
The
UNCLOS will perhaps always be remembered in the history of international law as
having given birth to, or at least nurtured to full strength, the concept of
the exclusive economic zone (EEZ). The convention deals with it under Article
55-75. This concept has recolonized the law of sea.
This
zone has developed out of earlier, more tentative claims, particularly relating
to fishing zones and different states had claimed in history fishing zones of
widely varying widths. Indeed, the International Court in the Fisheries
Jurisdiction cases in 1974 stated that the concept of the fishing zone, the
area in which a state may claim exclusive jurisdiction independently of its
territorial sea for this purpose, had crystallised as customary law in recent
years.
EEZ
marks a compromise between those states seeking a 200-mile territorial sea and
those wishing a more restricted system of coastal state power.
The definition
of EEZ was provided under Article 55 and 57, as;
“An
area beyond and adjacent to the territorial sea, not extending beyond 200
nautical miles from the baselines from which the breadth of the territorial sea
is measured”.
In
other words Article 55 provides that the zone starts from the outer limit of
the territorial sea, but by article 57 shall not extend beyond 200 nautical
miles from the baselines from which the breadth of the territorial sea is
measured.
Furthermore
within this zone, the territorial state does not have the equivalent of
territorial sovereignty, but sovereign rights for the purpose of exploring,
exploiting, conserving and managing the resources of the EEZ, and jurisdiction,
with due regard to the rights of other states, with respect to the
establishment and use of artificial islands and structures, marine scientific
research, and the protection and preservation of the marine environment
(Article 56).
Article
58 lays down the rights and duties of other states in the exclusive economic
zone. These are basically the high seas freedom of navigation, overflight and
laying of submarine cables and pipelines.
Article
59 provides that in cases of conflict over the attribution of rights and
jurisdiction in the zone, the resolution is to be on the basis of equity and in
the light of all the relevant circumstances.
Article
60(2) provides that in the exclusive economic zone, the coastal state has
jurisdiction to apply customs laws and regulations in respect of artificial
islands, installations and structures.
5. Continental shelf;
The
continental shelf is a geological expression referring to the ledges that
project from the continental landmass into the seas and which are covered with
only a relatively shallow layer of water (some 150–200 meters) and which
eventually fall away into the ocean depths (some thousands of meters deep).
These ledges or shelves take up some 7 to 8 per cent of the total area of ocean
and their extent varies considerably from place to place.
The
vital fact about the continental shelves is that they are rich in oil and gas
resources and quite often are host to extensive fishing grounds. This
stimulated a round of appropriations by coastal states which gradually altered
the legal status of the continental shelf from being part of the high seas as exclusive
to the coastal state.
Case;
In
the North Sea Continental Shelf cases, 1969 the International Court of
Justice noted that:
“the
rights of the coastal state in respect of the area of continental shelf that
constitutes a natural prolongation of its land territory into and under the sea
exist ipso facto and ab initio, by virtue of its sovereignty over
the land, and as an extension of it in an exercise of sovereign rights for the
purpose of exploring the seabed and exploiting its natural resources. In short
there is here an inherent right”.
And Article
76-85 deals with continental shelf. Through Article 76 Continental shelf is defined
as under;
“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”.
Thus,
an arbitrary, legal and non-geographical definition is provided. Where the
continental margin actually extends beyond 200 miles, geographical factors are
to be taken into account in establishing the limit, which in any event shall
not exceed either 350 miles from the baselines or 100 miles from the
2,500-metre isobaths.
Case study of Pakistan;
Published in Dawn, March 21st, 2015
ISLAMABAD: Pakistan’s seabed territory grew by
about 50,000 square kilometres after a UN body accepted Islamabad’s claim for
extension of sea limits.
“On 19 March 2015, United Nations’ Commission
on Limits of Continental Shelf (UNCLCS) completed its review and accepted
Pakistan’s claim for extension of its continental shelf limits, thereby extending
Pakistan’s sea limits from 200 nautical miles to 350 nautical miles,” Pakistan
Navy’s media directorate said.
Following the acceptance of the claim,
Pakistan’s offshore territory of 240,000sqkm would expand by another 50,000sqkm
allowing the country to benefit from the natural resources contained in it.
The United Nations Convention on the Law of the
Sea (UNCLOS) grants special rights to the coastal states with regards to
exploration and use of marine resources, including energy production in the
area in its jurisdiction, which is also described as exclusive economic zone.
Under the UNCLOS, coastal countries are allowed
economic control of the waters and seabed up to 200nm from their shores. The
international treaty allows countries to further claim an extended continental
shelf stretching up to 350nm from the baselines of its territorial sea if they
could prove that the claimed area was a natural prolongation of their land
territory.
Pakistan welcomed the UN commission’s verdict, terming
it a “landmark achievement and a momentous event in the country’s history”.
Adviser to Prime Minister on Foreign Affairs
and National Security Sartaj Aziz in a statement said: “It is of great
satisfaction for us that Pakistan’s claim at the United Nations’ Commission on
Limits of Continental Shelf, for extension of outer limits of its continental
shelf, has been unanimously approved.”
This development, he said, would boost
Pakistan’s efforts aimed at sustainable socioeconomic uplift of the people of
Pakistan.
Article 76(4) to (6) of the UNCLOS prescribes a
complicated formula for claiming such an extension. The claimant state has to
present legal and scientific basis for its claim before a 21-member commission
of experts. The evidence is accompanied by maps to prove that the claimed
continental shelf is extension of its territory and fits the description given
under Law of Sea Treaty of 1982.
Pakistan had filed its case with the UNCLCS on
April 30, 2009. The application was preceded by a four-year extensive study
jointly conducted by the Pakistan Navy and National Institute of Oceanography
under the patronage of Ministry of Science and Technology.
A seven-member sub-commission of the UNCLCS
evaluated Pakistan’s case for a year and accepted Pakistan’s claim.
Some of the claimed territory overlapped Omani
claim. It is believed that the verdict in favour of Pakistan was announced
after successful negotiations with Oman.
Mr Aziz in his statement thanked the government
of Oman.
“We are thankful to the brotherly country of
Oman for its understanding and cooperation in the matter,” the adviser said.
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