Mirza Mohammad Rifat.:Hand out on Law of the Sea By Mirza Mohammad Rifat

Hand out on Law of the Sea

Mirza Mohammad Rifat Two Lectures

Introduction

Law of the sea constitutes major part of international law. It is that part of international law which deals with sea related affairs. Sea has been a concern due to variety of reasons. Especially, its resources are enormous. That is why states often vie with the sea related matters. As a result there is a settled principle of international law regarding this. The governing convention on the point is United Convention on the Law of the Sea, 1982 (UNCLOS III). The present chapter deals with some basic concepts on the Law of the Sea.

Salute to Hugo Grotious:

Can you remember Hugo Grotious, the noted Dutch Diplomat and Jurist? For the first time he propounded that Seas are the gifts of nature. So, the resources of the sea should be used for the human being as a whole. In his famous book mare labarum he articulated the freedom of the seas. In fact, from Hugo Grotius’s days till now law of the sea has been taking a definite shape through the hands of different jurists and various conventions. To name some of other jurist’s areBynkershoek, Bluntschli, Vattel, Wolf etc.

The Four Geneva Conventions:

UNCLOS Convention: The Package Deal:

The UNCLOS was the outcome of 9 years labour of the delegates of the states. For a final Convention the Conferences were held between 1973-1982. The final Convention was signed at Montego Bay, West Indies, on 10December 1982, by 118 states. Its full name is United Nations Convention on the Law of the Sea, popularly known as UNCLOS III. It came in to effect in 1994. The convention is the comprehensive guideline on law of the sea.

It created a complete and comprehensive international regime for the high seas, the coastal waters and seabed, and the deep ocean floor. And such regime has embraced to cover all relevant economic and environmental issues. According to R.P. Anand,

“The convention in fact is a comprehensive constitution of the oceans embodying hundreds of legal rights and duties for all uses of the sea and accepted as whole by a vast majority of states”

The UNCLOS is considered as a package deal. It has many significant accomplishments. It is probably the best one obtainable treaty by the community of states. It is landmark. It exists. Bangladesh is a signatory to the convention.

Q. Explain Territorial Sea and Contiguous Zone? Discuss rights of the coastal states in these zones? How do the two zones differ?

Territorial Sea

Territorial Sea is the closest maritime area adjacent to the main territory of a particular state, the territorial sea under the convention extends to 12 nautical miles.

Contiguous zone

Contiguous zone is an area beyond the territorial sea where the state has jurisdiction to prevent infringement if its customs, immigration and sanitation laws. The area may not extend beyond 12 miles outside the area of 12 miles territorial sea. The concept of contiguous zone appears to have been first enunciated by the noted French jurist M.Louis Renault. According to Prof. Starke contiguous zone is a belt of waters, adjacent to the limits of maritime belts, not subject to the sovereignty of the littoral state but within which the littoral sate could exercise certain rights of control for the purpose of health and other regulations.

Rights of coastal state over Territorial Sea

Article 2 of the U.N. Convention on the law of the Sea, 1982, says:

1. The sovereignty of a coastal state extends, (beyond island 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. So, it is clear that a state has a 4 dimensional jurisdiction and sovereignty over territorial sea. It means that a coastal.

State has sovereignty on the surface waters, sea-bed, sub-soil and airspace. The state can utilize the resources of the marine belt on the basis of sovereignty. This area is almost identical to the land territory except that the Passage of foreign vessels must be innocent over the territorial sea. If the passage is not “innocent” the territorial state can prohibit the use of the sea. Air space over the area can also be prohibited for use by the sate, if found necessary. For all practical purposes, the territorial sea is considered as the land territory.

Judge McNair in Anglo-Norwegian Fisheries Case observes that:

To every State whose land territory is at any place washed by the sea, international law attaches a corresponding portion of maritime territory consisting of what the law calls territorial waters.

Rights of coastal state over Contiguous Zone.

Article 33(1) of UNCLOS provides that, in 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.

Rights in the waters beyond the limit of the territorial sea have been asserted by a great many states. These waters are commonly called an “adjacent zone” or contiguous zone. The contiguous zone initially was concerned with the control necessary to prevent smuggling. Now –a-days the zone deals with customs, fiscal immigration and sanitary matters of the coastal state.

Naturally, it would be an annoying phenomenon for a state if any intrusion is made in the immediate vicinity of its territory. It signifies to put forward the view that the coastal state should have authority for taking preventive measures outside its territorial waters. Before the 20th century the three-mile extent of the territorial sea was also felt inadequate by the littoral state for the purpose of customs and revenues. In 1919 the Harvard Research in international law explained the necessity of contiguous zone. It was stated that:

“The navigation of the high seas is free to all states. On the high seas adjacent to the marginal sea… a state may take such measures as may be necessary for the enforcement within its territory or territorial waters of its customs, navigation, sanitation or police law or regulations for its immediate protection.”

As regards the “immediate protection” of the coastal state, the necessity of authority for exercising ‘customs navigation, ‘sanitation’ or ‘police laws or regulation’ in these a zone beyond its territory or territorial waters is unquestioned. L. Oppenheim views the contagions zone in favour of the littoral state beyond its maritime belt particularly for self-preservation, Shigeru Oda, a Japanese Scholar favors the contiguous zone owing to the fact that it would better serve the needs and exigencies of the current world. According to him:

“The advantage which the coastal state may obtain by the extension of its jurisdiction over a wide area for the purpose of preventing smuggling or in sanitary action is incomparably greater than any expected disadvantage that other states suffer there from”.

At present the regime of the EEZ has provided for the coastal state sovereign rights to explore and exploit the resources both living and non-living at this zone. Consequently this state will not tolerate infringements to its interests in the resources of the EEZ. In this context it would not be viable if it is said that the coastal state will be entitled to punish if the infringement is committed only in its territory or territorial sea. As the coastal has sovereign rights over there sources of the EEZ such a proportion cannot be made effective. From this point of view the regime at the contiguous zone is becoming inapplicable. There is an assumption that the contiguous zone is in a position to bid good bye from the law at the sea.

Contiguous Zone (CZ) and Territorial Sea (TS) differs:

1. Regarding the basic needs, the territorial sea is directly related with the coastal state. But the contiguous zone cannot be regarded to be related to the same degree the zone came into being on the basis of special needs of the coastal state.

2. TS are identical to the land of the state. On the other hand, basic juridical status of CZ is that of high seas.

3. It must follow and this is the important point that foreign vessels in the contiguous zone are not basically subject to the laws of the coastal state or bound to conform to them, as they would be in the territorial sea. [Sir Gerald Fitzmaurice]

4. Extent of TS is 12 n.m. from the baseline, whereas extent of CZ is not more than 24 n.m from the same.

5. It is said that the contiguous zone extends beyond territorial sea. It does not mean that irrespective of any breadth limit of the TS the zone will extend beyond it. The CZ in fact is independent of the breadth limit of the TS.

Q. What is exclusive economic Zone (EEZ)? Discuss rights, Jurisdiction and duties of the coastal state and freedoms and duties of the states in the EEZ. What do you mean by resources of this zone?

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 the EEZ in part V, consisting of no less than 21 articles (articles 55-75). The establishment of an acceptable regime for the EEZ occupied much of the time of UNCLOS; although the concept itself found ready approval R.W. Smith rightly commented that EEZ has revolutionized the law of the sea.

Exclusive economic Zone (EEZ)

The 1982 convention acknowledges EEZ as:

The Exclusive Economic Zone is an area beyond and adjacent to the territorial sea, subject to the specific established legal regime by the convention and under which the rights and jurisdictions of the coastal states and the rights and freedoms of other states are governed by the relevant provisions of the convention.

Article 57 provides that the Exclusive Economic Zone shall not extend beyond 200 nautical miles from the base lines from which the breadth of the territorial sea is measured. As a matter of fact, the 200 n.m. is a multipurpose zone. Basic nature of the EEZ is that it is a zone subject to the “specific legal regime.” That means it is zone having sui generic status but not the high seas. The regime of the EEZ is a phenomenon which deals with resources of the zone mainly for the coastal state and other state as well. The ICJ in the case of Continental Shelf (Tunisia-Libya), ICJ Rep 1982 p. 18, has treated the EEZ as a settled part of modern international law.

Rights, Jurisdiction of the coastal state in the Exclusive Economic Zone:

Article 56 of the Los convention specifically deals with the subject. In the EEZ, the coastal state has:

(a) Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil and with regard to other activates for the exploitation and exploration of the zone. Such as the production of energy from the water, currents and winds;

(b) Jurisdiction with regard to:-

i)                    The establishment and these of artificial 15 lands, installations and structures.

ii)                  Marine scientific research.

iii)                The protection and preservation of the marine environment.

Resources of EEZ:

As it is clear from the provision at Article 56, resources of EEZ means natural resources i.e. both living and non-living. The classic example of living resources are fishes, migratory specie and marine mammals the non-living resources are, for example, diamond, pearl, manganese, nickel, cobalt, bauxite, oil, gases and food stuffs there.

Q. What is continental Shelf? Distinguish between continental shelf and Exclusive Economic Zone.

Continental Shelf:

Definition of the continental shelf will not be simple, though as a concept it is not difficult of comprehension. Basically, the concept of continental shelf stems from geography and oceanography. It is used to denote the kind of pedestal on which the continents seem to rest in the ocean. It slopes steadily and very gently down towards the sea. The continental shelf extends to 200 n.m for all states, but retains an advantage for the geographically favored. However, Article 76 (6) provides that the continental shelf shall not exceed 350 n.m from territorial base lines. Article76(7) provides the method of delimitation to be employed where the continental shelf exceeds 200 n.m.

Continental Shelf and EEZ distinguished:

1. Continental shelf and Exclusive Economic Zone are linked together in modern law. They have some resemblance between them. The rights enjoyed by a state over its continental shelf would also be possessed by it over the seabed and subsoil of any Exclusive Economic Zone. It has-been rightly pointed out by M.K. Nawaz that the concept of EEZ differs from Continental Shelf in that it extends to the living and non-living resources in the area of the sea, the outer limits of which are measured by distances rather than by depth or exploitability.

2. The legal regime of CS is governed by international customary law and for the practice by the Los convention the EEZ has sui generic status. An specific legal regime has-been created for that. EEZ is a relatively modern concept.

3. The resources of EEZ are both living & nonliving species of water/seabed/ subsoil. But the resources of CS include natural resources/sedimentary species of sea-bed and subsoil.

4. In point of fact, the 200 n.m. EEZ is less complicated than the CS. Prof Brown rightly commented that the EEZ is an entirely artificial, man-made zone in the sense that it bears no relation to natural features such as the continental margin.

5. In the case of Libyan Arab Jamahiriya vs. Malta ICJRep1985, Para 35 it was observed that although there canbe continental shelf where there is no exclusive economic zone, there cannot be an exclusive economic zone without a corresponding continental shelf.

High Sea:

High sea is the zone beyond the limits of national jurisdiction. Every state can exercise its freedom in the high sea. How ever, the sea bed, ocean-floor and subsoil thereof, beyond the limits of national jurisdiction is specifically called area.

Freedom of High Sea and EEZ compared:

Freedom of High Seas [Article: 87]

Freedom of EEZ.[Article: 58]

1. Navigation.

1. Navigation.

2. over flight.

2. over flight.

3. Establishment of cables and pipe times.

3. Laying submarine cables and Pipelines.

4. Fishing

4. other internationally lawful uses of the Sea related to above.(Subject to convention)

5. Artificial island and construction

6. Marine Scientific Research. So, it is apparent from above, 1, 2, 3 have subsumed with EEZ rights. Marine scientific research is allowed by other states at the consent of coastal state in the EEZ.