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2014-11-23
INTERNATIONAL LAW OF
TERRITORIES
LAW OF THE SEA PART 2
TERRITORIAL SEA
• a maritime area beyond and adjacent to the internal
waters
• intrinsic: not dependent on proclamation
• in the territorial sea the coastal State exercises
sovereignty
– in principle, the coastal State exercises complete
prescriptive and enforcement jurisdiction, subject to
the provisions of law of the sea conventions and
other rules of international law
– sovereignty is a priori restricted by the right of
innocent passage that all States enjoy in the
territorial sea
• Breadth of the territorial sea – horizontal and vertical
extension?
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• The exercise of the sovereignty of the coastal State over
its territorial sea is subject to the right of innocent
passage
– an attempt to reconcile the navigational right of all
other States with the sovereignty of the coastal State
concerned
– residue of the principle of the freedom of navigation in
the territorial sea
– ships on innocent passage enjoy neither immunity nor
indemnity (any contravention of the laws and
regulations of the coastal State would expose the ships
to potential punishment by the same State)
– Not absolute, must be exercised in accordance with
• the rules of international law mainly prescribed in
LOSC
• the national laws and regulations properly adopted
by the coastal State
• measures, laws and regulations laid down by the
flag State with regard to safety of navigation,
protection of the marine environment and social
matters
– right of innocent passage has not yet amounted to an
exception to coastal State sovereignty or jurisdiction
– no more than a special restriction on coastal State
jurisdiction
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RIGHT OF INNOCENT PASSAGE – BASIC
ELEMENTS
I PASSAGE
• the definition of passage in LOSC rests principally
upon the purpose for which the passage is undertaken
1. Lateral passage
• passage without entering internal waters
2. Passage to or from a port facility
• navigation through the territorial sea to or from
internal waters
3. Stoppage and anchorage as components of
passage
• exceptional cases to the rule of „continuous and
expeditious”
– incidental to ordinary navigation
– rendered necessary by force majeure or by
distress
– where a ship seeks to render assistance to
persons, ships or aircraft in danger or distress
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II CONTINUOUSNESS AND EXPEDITIOUSNESS
OF PASSAGE
• foreign ships are not allowed to hover or hang
around in the territorial sea
• expeditiousness – foreign ships shall proceed ahead
at their usual operational speed, taking account of
specific circumstances including navigational and
hydrographical conditions (french version „rapid”)
III INNOCENCE
• two-step method to define innocence of passage
• Art. 19(1) LOSC - the definition of innocence in
general terms from the perspective of the nature of
passage
– not prejudicial to the peace, good order or security
of the coastal State
• Art. 19(2) LOSC – term clarified by setting out the
activities that would render passage of a foreign ship
"prejudicial" in this context and thus non-innocent
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Relationship between art. 19(1) and 19(2) LOSC
• art. 19(1) – general and basic definition of
innocence; art. 19(2) seeks to elucidate the scope of
the expression „prejudicial to the peace, good order
or security of the coastal State”
• although engaging in any of the listed activities
would render the passage non-innocent, these
activities (art. 19(2)) do not exhaust all tests of noninnocence
• art. 19(1) stands on its own feet and can be applied
alone, without necessarily being dependent on the
provisions of art. 19(2)
DUTIES OF SHIPS DURING INNOCENT
PASSAGE
1. Duty of Observation of Laws and Regulations
•
exercising right of innocent passage in the territorial sea
implies submission to the legal regime of the coastal
[art. 21(4) LOSC]
•
the duty to observe local laws and is basically separate
from the test of the innocence of passage
– infringement will make the offender liable to the proper
penalty, but it ipso facto enables no State to deprive
the passage of its innocence
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2. Duty of Continuousness and Expeditiousness
• any violation would render a voyage to be non-passage
• foreign ships on that voyage may not rely on the right
of innocent passage
3. Duty of Refraining from Engaging in Non-innocent
Activities
4. Duty of Navigation on the Surface and Showing
the Flag
• submarines and other underwater vehicles navigate on
the surface and show their flag
• the submerged passage of those ships can be seen as a
prejudice to the peace, good order or security of the
coastal State
5. Duty of Compliance with Sea Lanes and Traffic
Separation Schemes
• foreign ships shall comply with local laws and
regulations, including those concerning
– the safety of navigation
– the regulation of maritime traffic
– all generally accepted international regulations
respecting collision prevention
• foreign ships shall confine their innocent passage to the
designated sea lanes and TSS established by the coastal
State in accordance with LOSC (art. 22 LOSC)
• unclear from the LOSC provisions what the
consequences of a breach of this duty are
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• the passage of any tankers, nuclear-powered ships
and ships of a dangerous nature
• a minor breach thereof should not lead passage of a
foreign ship to non-innocence
6. Duty of Ships with Highly Dangerous
Characteristics
• an additional duty in art. 23 for foreign nuclearpowered ships and ships carrying nuclear or other
inherently dangerous or noxious substances
• to carry documents and observe special
precautionary measures (international agreements)
7. Duty to Pay for Specific Services
• Art. 26 LOSC excludes any charges in respect of
navigation itself (the limitation to the coastal State's
competence)
• general services include those that are basically
provided for any ships passing by, such as lighthouse
erection, buoyage placement, operation of other
navigational aids, safety management and supervision
• specific services are those directed at a particular ship
or ships, for example, pilotage, towage, pushing
services, urgent repairing, salvage, provision of
necessities, particular weather forecasting
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• charges cannot be virtually transformed into a
disguised tax on mere passage that would contradict
art. 26(1)
• the failure to pay should not compromise the right of
innocent passage
– the coastal State or service provider can make
claims in other ways than disrupting the ongoing
innocent passage
DUTIES OF COASTAL STATES
1. Duty of Abstention
•
not to hamper the innocent passage of foreign ships
except as otherwise regulated in LOSC
•
the right of innocent passage may be subject to rules
embodied in LOSC, such as:
– suspension of innocent passage
– civil and criminal jurisdiction
– environmental protection
2. Duty of Non-discrimination
•
Art. 24(1)(b) LOSC prohibits discrimination in the
application of the Convention and any duly adopted laws
and regulations
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• the prohibited discrimination falls into two types:
– discrimination against the nationality of ships and
– that against the State of departure, State of
destination or State owning the cargoes
• relationship between the enforcement of embargoes as
well as other sanctions adopted by the UNSC and the
prohibition of discrimination in art. 24(1)(b)
– the obligations derived from the UN Charter prevail
legally over that from LOSC (art. 103 UN Charter)
• cases in which special treatment is granted
fully
justified on the basis of bilateral or multilateral treaties
3. Duty of Information
• Corfu Channel case in 1949
to inform foreign ships of
any danger to navigation within its territorial sea if the
coastal state had knowledge thereof
• maintain some basic navigational aids and the like
essential for ordinary shipping activities, such as
lighthouses and a rescue capability
• The duty of information as a whole comprises:
– limits of the territorial sea [art. 16(2)]
– all adopted laws and regulations [art.21(3)]
– sea lanes and traffic separation schemes [art. 22]
– suspension of innocent passage in the territorial sea
[art. 25(3)]
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RIGHTS OF PROTECTION OF
COASTAL STATES
I Entitlement of coastal States for confirmation of
non-innocence
• coastal States are entitled to define and confirm the
non-innocence of passage [verify the innocent
character of the passage]
• the confirmation of non-innocence of passage of
foreign ships ought to stand the test of international
law [especially art. 19 LOSC]
• in practice foreign ships should be allowed to explain
their operations on being suspected prior to the
confirmation of non-innocence
II Prevention of non-innocent passage
• foreign ships would fall fully under coastal State
jurisdiction if the foreign ships ceased to be on innocent
passage
• the coastal State may take the necessary steps in its
territorial sea to prevent passage which is not innocent
art. 25 (1) LOSC
• it is completely within the discretion of coastal States
to decide on what specific steps will be taken to
prevent non-innocent passage
– steps shall conform to the basic rules of general
international law, such as necessity, proportionality
and non-discrimination
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– warning, warning shot
– stopping, boarding, inspection, detention
– institution of proceedings
– diversion or expulsion
– in the case of non-innocent passage, the captain (or
person in charge of a foreign merchant ship) could face
punishment in the form of either a fine or
imprisonment pursuant to the penal code of the coastal
State concerned
III Prevention of non-passage
• ships engaged in navigational activities outside the sphere
of the passage (art. 18 LOSC) are likewise subject to full
coastal State jurisdiction
• customary international law (stop, expel, arrest)
IV Prevention of breach of port entry conditions
• Art. 25(2) LOSC
• international law generally lays down no specific
limitation on the scope of port entry conditions [except
for treaty obligations]
• coastal State discretion in setting out port entry
conditions
• The fixed conditions may relate to:
– DCME standards
– environmental protection
– nature of cargoes
– persons aboard
• "necessary steps" (the significance of necessity and
reasonableness in the enforcement)
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V Suspension of innocent passage
• Art. 25(3) LOSC
– temporary [days, weeks or months than years or
decades’ the permanent closure of a certain portion
of the territorial sea prohibited]
– only in specified areas of the territorial sea [may
not cover the entire territorial sea]
– essential for the protection of coastal State
security, including weapons exercises
[environmental concern or traffic considerations
may not be invoked to rationalize the suspension]
– no discrimination against foreign ships
– publicity [duly published in advance]
• any intrusion into the suspension areas could
logically be treated as non-innocent passage
– legitimizing any necessary measures taken by
coastal States once the right of innocent passage
has been expressly suspended
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COSTAL STATE JURISDICTION IN
TERRITORIAL SEA
I LEGISLATIVE JURISDICTION
• power of coastal States to adopt laws and regulations
springs from the sovereignty
• in principle adopt rules in respect of any activities and
matters of foreign ships in the territorial sea (*unless
expressly prohibited by international law)
• Art. 21 LOSC circumscribes the scope of laws and
regulations that costal States may enact by
exhaustively enumerating the matters being covered
– for States Parties LOSC the exercise of legislative
jurisdiction at the national level is subject to the
scope as prescribed above
The relationship between art. 21(1) and 19(2) LOSC
• activities listed in art. 19(2) are against the interests of
the coastal State and thus make passage of a foreign
ship non-innocent
• art. 19(2) per se does not (except item (g)) shed any
light on whether the activities are illegal in the context
of local legislation
• violation of art. 19(2) will render passage of a foreign
ship non-innocent [art. 25]
• art. 21(1) covers a broad range of matters, including
those dealt with in art. 19(2)
• violation of national legislation does not necessarily lead
to non-innocence, although the ship involved in the
violation may be subject to penalties imposed by the
coastal State
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Violations of local laws and regulations:
• not serious enough to render passage non-innocent
• Coastal State is allowed to take reasonable enforcement
measures provided that they are in accordance with
LOSC
• Violations only allow interference with passage, but not
annulment of the right itself
• The type on enforcement action must stand a test of
reasonableness (necessity and proportionality)
– Expulsion or denial of entry are not exclusively
reserved for cases in which passage became noninnocent
Design, construction, manning or equipment
standards (DCME) [special case]
• primacy of generally accepted international rules and
standards
• art. 21(2) LOSC
national laws and regulations may
not affect the DCME of foreign ships through the
territorial sea, unless they correspond with generally
accepted international rules and standards
• Coastal States may not adopt and apply national DCME
standards that exceed international ones
– SOLAC Convention 1974
– STCW Convention 1978
– ILO 147 Convention
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II ENFORCEMENT JURISDICTION
• in the interest of innocent passage: any enforcement
against foreign ships during passage in the territorial
sea may be more limited than the laws and
regulations may apply
• interference with the innocent authorized in some
cases
– art. 25(2) any breach of port entry conditions
– arts. 27 and 28 criminal or civil jurisdiction
– art. 220(2) environmental violations
• the interference has to stand the test of not having
"the practical effect of denying or impairing the
right of innocent passage"
• The coastal State enforcement jurisdiction in the
territorial sea is in principle complete, except for:
– Jurisdiction in relation to lateral passage with
antecedent crimes
– Jurisdiction in civil matters to arrest a ship in
connection with liabilities not incurred through the
territorial sea
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IIb Enforcement criminal jurisdiction
1)Lateral passage
• Art. 27(1) LOSC: a coastal State should not arrest any
person or to carry out any investigation concerning any
crime committed on board a foreign merchant ship
merely passing through its territorial sea
• Subject to four exceptional circumstances:
– the consequences of the crime extend to the coastal
State
– crime is of a kind to disturb the peace of the country or
the good order of the territorial sea
– the assistance of the local authorities has been
requested by „the flag State”
– measures are necessary for the suppression of illicit
traffic in narcotic drugs or psychotropic substances
2) Outward-bound passage
• Art. 27(2) LOSC
• passing through territorial sea after leaving the internal
waters
• irrespective of whether on innocent passage or not
• take any steps authorized by their laws for the purpose
of arrest or investigation
3) Inward-bound passage
• Art. 27 is silent on the scenario where the crime is
committed aboard a foreign ship in the territorial sea,
while the ship is proceeding to internal waters
• coastal States always prefer to take enforcement action
after the ship enters a port
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4) Lateral passage with antecedent crimes
• art. 27(5) LOSC prohibition on the assertion of coastal
State criminal jurisdiction against a foreign ship in the
territorial sea with regard to crimes committed beyond
the territorial sea if the ship is merely on the way of
lateral transit
• Exceptions:
– marine environmental protection [art. 220 LOSC]
– enforcement of laws and regulations in the exercise
of their sovereign rights on the living resources in
the EEZ [art. 73 LOSC]
IIb Enforcement civil jurisdiction
1)art. 28(1) LOSC – civil jurisdiction over persons on
board
• a ship not susceptible of any stop or diversion by the
coastal State only for the sake of exercising civil
jurisdiction in respect of a person on board
2) art. 28 (2) LOSC – execution against or arrest of
the ship
• only confined to the cases concerning obligations or
liabilities assumed or incurred by the ship itself from
certain events [in the course or for the purpose of
voyage], including:
– collision, salvage
– pilotage, towage
– during the current passage through the waters
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• prohibited: execution against or arrest of the ship with
regard to such civil obligations or liabilities as may
have come forward previously, i.e. not during the
ongoing passage
• covers: lateral, outbound and inbound passage
3) art. 28(3) LOSC – a foreign merchant ship lies in the
territorial sea or navigates therein after leaving the
internal waters
• ship lying in the territorial sea: may self-evidently not
invoke the right of innocent passage
• exceptional stopping and anchoring (art. 18 in the
case of emergency) should not be taken as "lying in
the territorial sea" in the sense of art. 28(3)
IIc Enforcement administrative jurisdiction
• administrative prerogatives appear to be acknowledged
as being absolutely within the ambit of coastal States
• covers many vital fields, inter alia:
– maritime traffic management
– rights of protection and levy of charges for specific
services
– fisheries
– customs
– revenue
– immigration
– quarantine
– protection of navigational aids and submarine cables
and pipelines
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IId Jurisdiction over marine environment – special
case: pollution from ships
• the exercise of enforcement jurisdiction had broadly
been considered to be the responsibility of the flag State
• Art. 220 LOSC - departure from the principle of the
exclusive jurisdiction of the flag State
• coastal State enforcement competence varies with loci
delicti and the seriousness of the pollution or the
damage caused
– Art. 220 (2) physical inspection [track, pursue,
request information, board, direct into port] = clear
grounds, navigation in the territorial sea, violation of
coastal State’s laws and regulations [no distinction
between innocent and non-innocent passage]
• Art. 220(3) LOSC – require the ship to furnish
information
– infringing ship sails in the territorial sea or the EEZ
– the violation was committed in the EEZ
• Art. 220 (5) LOSC – physical inspection
– clear grounds
– a substantial discharge causing or threatening significant
pollution of the marine environment
– ship sails in the territorial sea or EEZ
– violation committed in EEZ
– refusal to give the requested information
• Art. 220 (6) LOSC – institute proceedings
– clear objective evidence
– violation led to "a discharge causing major damage or
threat of major damage" to the coastline / related
interests /any resources of its territorial sea or EEZ
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NAVAL VESSELS AND RIGHT OF
INNOCENT PASSAGE
• Art. 32 LOSC
immunity of warships is limited when
navigating in the territorial sea of another State
• limitations or exceptions restricted to the provisions
expressly referred to – obligation to comply with:
– the international rules
– the coastal State’s domestic laws and regulations concerning
innocent passage
• While the coastal State retains its right to prescribe, it is
not entitled to enforce such laws and regulations against
a foreign warship
– any exercise of criminal or civil jurisdiction constitutes a
violation of the warship’s sovereign immunity
– warships may neither be visited nor searched or captured
(unless commander’s express consent)
Do warships enjoy the right of innocent passage?
• LOSC – since art. 17 [Subject to this Convention, ships of all
States, whether coastal or land-locked, enjoy the right of
innocent passage through the territorial sea] appears under
the rubric ‘Rules applicable to all ships’, both merchant
and warships enjoy the right
• Art. 24 ILC Draft Articles – coastal State entitled to
make the passage of warships through the territorial
sea subject to previous authorization or notification
• provisions has not been introduced to Geneva
Convention 1958 [thus, conference did not approve
such rule]
• neither treaty nor customary international law provide
for exceptions to the right of innocent passage of
foreign warships
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State practice:
• States have made declarations upon signing or
ratifying LOSC and have enacted domestic legislation
limiting that right
• As of 31 December 2008, 27 States have made
innocent passage of foreign warships dependent upon
prior permission/authorization
– Croatia and Denmark have adopted legislation
limiting the number of warships
– Latvia has banned all warships with nuclear engines
or cargoes from its territorial sea
– Nicaragua requires 15 days’ prior notice for
warships wishing to enter its security zone
– North Korea has established a 50-nautical-mile
security zone beyond its territorial sea banning all
foreign warships
• However, the majority of coastal States recognize
the right of innocent passage of foreign warships
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Coastal State’s rights with regard to warships situated
in its territorial sea
• Coastal State right to request a warship to immediately
leave the territorial sea
– a warship engages in any of the activities listed in Art.
19 (2) LOSC (passage becomes non-innocent)
– a warship does not comply with the coastal State’s laws
and regulations concerning passage (and a warship
disregards coastal State’s request to comply)
– if the warship remains in the territorial sea, the coastal
State may resort to all necessary and proportionate
measures, including the use of force, in order to make
the warship comply with such orders
• right of innocent passage may be suspended only in
accordance with art. 25 (3) LOSC
CONTIGUOUS ZONE
an area of sea contiguous to and extending seaward of TS
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Convention on Territorial Sea and Contiguous Zone:
• distinctive maritime zone („in a zone of high sea”)?
• zone supplementing the territorial sea regime, both with
respect to law enforcement and in protecting the rights
and interests of the coastal state
• limit: to 12 nm form the territorial sea baseline
• affirmed as being within the high seas and contiguous to
the territorial sea
• no reference is made to any form of sovereignty being
exercised over this area other than the limited
jurisdictional control provided for
Art. 33 LOSC:
• Distinctive nature of contiguous zone, which gave to the
coastal state an additional form of jurisdiction that was
quite separate from that being envisaged for the EEZ
• Limit: horizontal and vertical?
• Expansion of the contiguous zone breadth: 24 nm from
the territorial sea baseline
• Differences (Geneva Convention 1958 v. LOSC)
– Contiguous zone to territorial sea (previous connection
that existed between the contiguous zone and the high
seas no longer remain)
– No direct reference to the delimitation of overlapping
contiguous zone claims
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Coastal State jurisdiction in the contiguous zone:
• scope: customs, fiscal, immigration and sanitary laws
and regulations
• lack of legislative jurisdiction [States are not
entitled to enact laws and regulations for conduct
occurring in the contiguous zone itself; not due or
intended to occur in the territory or territorial sea of
the coastal State]
• Specifically related to outward and inward bound
movement of ships
– Inward bound ships – „control necessary to
prevent infringement”
• take into account: freedom of navigation which
vessels enjoy within the contiguous zone
• Scope of „control”: inspection, verification,
warnings, interdiction of a vessel and its removal
from the contiguous zone ?
– Outward bound ships – „control necessary to
punish infringement”
• Additional enforcement capacity
• Enforcement jurisdiction only in respect of
offences committed within the territory or
territorial sea of a State (not in respect of
anything done within the contiguous zone itself)
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Extension of the enforcement jurisdiction to security
interests ?
• neither the Convention on the Territorial Sea and the
Contiguous Zone nor LOSC include security
• a Polish amendment:
– added security to the list of protected rights
– deleted the reference to infringement of the laws within the
territory or territorial sea
– failed to obtain the required majority in the Plenary
• ILC in its 1956 draft articles on the law of the sea
excluded security rights
– extreme vagueness of the term ‘security’ would open the
floodgates to abuses
– enforcement of customs and sanitary regulations would be
sufficient in most cases to safeguard the security of the
State
Archaeological and historical objects in the
contiguous zone
• Art. 303 (2) LOSC
• Twofold legal fiction
the removal of archaeological and
historical objects from the seabed in the contiguous zone
without the coastal state approval would amount to:
– a breach of the laws and regulations applicable in its
territory and territorial sea
– relating to customs, fiscal, immigration and sanitary
matters
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INTERNATIONAL STRAITS
• International law on straits is aimed at reconciling
concurring interests:
– Interests of international community – freedom of
passage through these narrow waterways
– Interests of coastal State – supervision and
regulation of traffic in waters close to its shores
• a narrow, natural passage
connecting two larger bodies
of water
Legal definition of straits regulated by international
law is based on two elements
• geographical criterion
– a strait being a body of water which lies between
two areas of land, either continental land masses, a
continent and an island, or two islands
– no guidance as to how proximate the bodies of land
must be to one another
– the nature of the bodies of water that they connect
– linking two parts of the high seas or exclusive
economic zones
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• functional criterion — used for international navigation
– Corfu Channel case (1949) [Great Britain v. Albania]
• a useful route for international maritime traffic,
irrelevant that it is not a necessary route between
two parts of high seas, but only an alternative
passage between Aegean and Adriatic Oceans
– use: actual, not potential [a future oil discovery]];
recent or novel, as well as use in the more remote
past; does not have to be regular or to reach any
predetermined level
– the characteristics of vessels passing through a strait;
navigational and hydrographical characteristics of the
waterways; circumstances important to the flow of
international navigation to maritime areas
Straits not used for international
navigation
Not subject to Part
III
'Broad straits' which have a high
seas/EEZ route through them of
similar convenience art. 36
Straits subject to their own
long-standing regimes art. 35(c)
Straits between two parts of the high Part III, Section 2
seas/EEZ, apart from those subject to applies, i.e.
the exception in art. 38(1)
transit passage
Straits between the high seas/EEZ
and the territorial sea of a foreign
State art. 45
Straits falling in art. 38(1) exception
Part III, Section 3
applies, i.e.
non-suspendable
innocent passage
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DIFFERENCES BETWEEN TRANSIT
PASSAGE AND INNOCENT PASSAGE
• the reversed position of flag and coastal States in the
case of transit passage
– innocent passage as an exception v. transit passage as
a rule (right of a flag state subject to some limited
obligations vis-à-vis the coastal State)
– that transit passage cannot be denied, hampered or
impaired because of the application of the laws and
regulations of the coastal State
corollary of this
prohibition is that ships in transit passage cannot
be:inspected, arrested, detained, seized or be
subjected to any other form of control
• normal mode [submarines]
• prescriptive powers for transit passage are subject to
coordination with the IMO and approval of proposed
national laws by that organization
• right of overflight
– without notification or authorization of States
bordering straits
– the designation of air routes in straits excluded
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THE REGIME OF TRANSIT PASSAGE
• Art. 37 to 44 LOSC
• straits used for international navigation between one
part of the high seas or EEZ and another part of the
high seas or EEZ
• all ships and aircraft
The act of transit:
• the exercise of the freedom of navigation and
overflight solely for the purpose of continuous and
expeditious transit of the strait
• Purpose of transit: through the strait from an entrance
to an exit point + entering, leaving or returning from a
State bordering the strait
Duties of Ships and Aircraft in Transit
• Art. 39 LOSC – general duties; no criterion of ‘innocence’
to be satisfied. The mentioned requirements are not
considered as a condition of the right of innocent
passage but as the obligations ancillary to it
– The requirement to proceed without delay
– To refrain from any use or threat of force against the
sovereignty, territorial integrity or political
independence (violation of principles embodied in UN
Charter)
– Refrain from activities other than those which are
incidental to ‘their normal mode’ of transit, unless
rendered necessary by force majeure or distress
[submarines]
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Obligations of Strait States
• Art. 44 LOSC:
– shall not hamper transit passage
– appropriate notification of any dangers to navigation
or overflight within or over the strait
– shall not suspend transit passage [for security or any
other reasons; a coastal State is entitled to
temporarily suspend innocent passage]
Regulation of transit passage:
• legislative jurisdiction art. 42 LOSC
• designation of sea lanes and traffic separation schemes
art. 41 LOSC – the role of a relevant international
organization (IMO)
• Authorization of research and survey activities
Enforcement of Straits State Laws and Regulations:
• A vessel is not complying with the requirements of transit
passage and its actions are in breach of art. 39
– Posing a threat to the strait state or not engaged in
normal mode passage
– Right of self-defence under general international law
(hostile act)
– Prohibit passage or prevent from continuing passage
(not in conformity with Part III)
• A vessel legitimately engaging in transit passage in
compliance with its art. 39 duties, breaches the laws
and regulations of the strait State
– Art. 34 LOSC – Part III regime does not in other respects
affect the legal status of the waters of the straits with
regards to the coastal State’s sovereignty and
jurisdiction
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– Art. 27 and 28 LOSC – text „a foreign ship passing
through the territorial sea”
• Violations of marine environmental measures
– Art. 233 LOSC – violations of laws and regulations +
causing or threatening major damage to the marine
environment of the strait = appropriate enforcement
measures
– Art. 221 LOSC – maritime causalties = reasonable
actions
ARCHIPELAGOS
• Coastal archipelago (continental)
– situated so close to the mainland that they may
reasonably be considered to be part and parcel thereof
– covered by the provisions of straight baselines
– Norway, Finland, Canada
• Mid-ocean archipelago (outlying)
– groups of islands situated out in the ocean at such a
distance from the coasts of firm land as to be considered
as independent whole rather than forming part of or
outer coastline of the mainland
– belonging to continental state or forming the whole
territory of State
– Fiji, Indonesia, Philippines, Maldives
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Definition of archipelagic State:
• Art. 46 (b) – definition of archipelago – geographical
features + additional dimension
a group of islands,
including
– parts of islands,
– interconnecting waters and
– other natural features which are so closely interrelated
– that [they] form an intrinsic geographical, economic
and political entity, or which historically have
been regarded as such
• Art. 46 (a) definition of archipelagic State
– a State constituted wholly by one or more archipelagos
– may include other islands
• definition excludes: offshore continental archipelago
– e.g. Denmark (with the Faeroes), Ecuador (the
Galapagos Islands), Norway (Svalbard), Portugal (the
Azores), Spain (the Canaries)
• definition would appear to embrace a number of States
which do not normally consider themselves to be
archipelagic States
– Japan, New Zeland, UK
– Most of these non-traditional archipelagic states will in
practice be unable to draw archipelagic baselines
because of the rules governing the drawing of such
lines
• definition of archipelago seems to be wide and
imprecise: number, size and proximity of islands
32
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33
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Archipelagic baselines
1. are to connect the outermost points of the outermost
islands and drying reefs of the archipelago
2. the ratio of land to water within the lines is not more
than 1:1 and not less than 1:9 [ratio land to water]
–
max. ratio of 1:1 prevents archipelagic States
which consist predominantly of one large island or
a few large islands close together
–
min.ratio of 1:9 prevents archipelagic baselines
being drawn around very distant islands in an
archipelago or around the whole of widely
dispersed archipelagos consisting of small islands
34
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35
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3. Archipelagic baselines must not exceed 100 miles
in length, except that up to 3% of the total
number of lines may be between 100 and 125
miles in length [length of baselines]
– Indonesian system is made up of 196 lines, of
which five are between 100 and 125 miles in
length and the remained less than 100 miles
– Philippine system: 80 lines, of which two are
between 100 and 125 miles in length, one is
140 miles and the remainder less than 100
miles
36
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37
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4. The ‘main islands’ of the archipelago must be included
within the archipelagic baselines
– Largest islands ?
– The most populous islands ?
– The islands most prominent in some other way
(capital)?
5. not depart to any appreciable extent from the general
configuration of the archipelago
6. shall not be drawn to and from low-tide elevations
(unless „lighthouse” exception + in the limits of the
territorial sea from the nearest island)
7. must not cut off the territorial sea of another state from
the high seas or its EEZ
8. indicated on charts of adequate scale
Archipelagic waters
• comprise all the maritime waters within archipelagic
baselines
• purpose: used for the delimitation of the adjacent
maritime zones
• Legal character:
– neither internal waters nor territorial sea, although
they bear a number of resemblances to the latter
– art. 49 LOSC – sovereignty over: archipelagic
waters, their superjacent air space, subjacent sea
bed and subsoil
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• archipelagic waters v. internal waters
– within the archipelagic waters
– the archipelagic State may draw closing lines across
river mouths, bays and ports on individual islands
• common feature: sovereignty
• difference:
– right of navigation through archipelagic waters
(innocent passage and archipelagic sea lanes
passage); no equivalent right through internal waters
– recognition of ‘existing rights and all other legitimate
interests’ (pre-existing fishing agreements, traditional
fishing rights, previously laid submarine cables) within
the archipelagic waters + ‘traditionally exercised’ by
adjacent neighbouring states
39
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Archipelagic State sovereignty subject to a number of
rights enjoyed by third States:
1. obligation to respect rights enjoyed by third States
deriving from existing agreements (exception to the
general provision under art. 311 LOSC) [art. 51(1)]
2. obligation to recognize traditional fishing rights and other
legitimate activities of immediately adjacent neighbouring
States within archipelagic waters [art. 51(1)]
3. obligation to respect existing submarine cables laid down
by other States and passing through its waters without
making a landfall [art. 51(2)]
– Only cables (pipelines excluded)
– Only existing cables
– laying of new cables and new pipelines by other States
is dependent on the consent of the archipelagic States
4. Navigational rights of other States:
– Right of innocent passage art. 52(1)
• default navigation regime (for those ships not
undertaking ASLP)
• subject only to two qualifications:
– may be suspended art. 52(2) [temporarily +
specified area + security + due notice]
– innocent passage regime without prejudice to the
archipelagic state ability to delineate internal
waters
40
2014-11-23
• ASLP
– borrows heavily from the transit passage regime [art.
54] some of provisions apply mutatis mutandis:
• duties of the ships and aircraft
• duties of the archipelagic State
• survey and research;
• laws and legislation of the archipelagic State
– exercised within and above archipelagic waters
[enjoyed by ships and aircraft]
– purpose: continuous, expeditious and unobstructed
transit between one part of the high sea / EEZ and
another part of the high sea / EEZ
• promotes continuous and expeditious transit
vessels seeking to call at a port within archipelagic
waters revert to the innocent passage regime
– Exercised in „normal mode” [transit passage regime]
Archipelagic Sea Lanes
• LOSC confers significant rights upon the archipelagic
States as to designate sea lanes within which ASLP can
be exercised (contrary to transit passage regime)
• sea lanes and air routes must include:
– all normal passage routes used as routes for
international navigation and overflight
– all normal navigational channels
– term normal – intent to preserve the previously
existing navigation routes; irregularly used routes
(excluded: routes selected by foreign yachts
undertaking a pleasure cruise)
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– all normal navigational channels
unless: there may
have previously existed a number of duplicate routes of
similar convenience
– that only one sea lane is required for designation
within any one particular body of water, though this
does not preclude the existence of multiple sea lanes
• defined by a series of continuous axis lines from the
entry points of passage routes to the exit points +
indicated on duly published charts
• may be up to 50 miles [as ships are required to remain
within 25 nautical miles either side of the axis lines, the
effect is that a sea lane is 50 nautical miles wide]
• shall cross both archipelagic waters and TS
Designation of archipelagic sea lanes art. 53
• default mechanism: routes normally used for international
navigation [rely upon previous state practice]
• no unilateral capacity to declare ASL
– referral to ‘the competent international organization
with a view to their adoption’ art. 53(9) IMO
– substitution or modification (e.g. wreck blocking a sea
lane thereby creating dangerous navigational
conditions)
• sea lanes designated unilaterally or in disregard of IMO
recommendations
– user States entitled to challenge the designation as
well as the ability to enforce national laws and
regulations
– activation of the Part XV dispute resolution provisions
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Obligations while undertaking ASLP (main)
• proceed without delay and refrain from any threat or use
of force against the sovereignty or territorial integrity of
archipelagic state art. 39 (1)(a)(b)
• not to undertake marine scientific research, including
survey activities, without prior authorization art. 40
• obligation to comply with relevant laws and regulations
art. 42
Obligations of the archipelagic States (main)
• transported from art. 44 (Part III):
– not hamper ASLP
– appropriate publicity to any danger of which they have
knowledge
– suspend ASLP
• The archipelagic State is not to suspend ASLP
– Results in dual nature of archipelagic waters: nonsuspendable ASLP + suspendable innocent passage
Jurisdiction of the archipelagic State over foreign
ships in archipelagic waters:
• general jurisdictional competence (legislative and
enforcement) is set out in LOSC on innocent passage and
transit passage (by cross-reference applies to innocent
passage in archipelagic waters and ASLP)
• additional jurisdiction does not appear to apply in
archipelagic waters (marine environmental protection art.
220 and 233)
43
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Jurisdiction with respect to innocent passage:
• consistent with relevant provisions of art. 17 to 32
• scope: stopping, detention, arrest and prosecution of
vessels
– Engaging in actions contrary to legitimate laws and
regulations
– Taking necessary steps to prevent non-innocent
passage
• limitation: stemming from the obligation to recognize
traditional fishing rights and other legitimate activities
of neighbouring states within archipelagic waters
Jurisdiction with respect to ASLP:
•
The ability of the archipelagic state to engage in
regulation and enforcement within archipelagic
waters is equated with the rights of the coastal
state within international straits
•
ASLP exercised in contradiction with art. 39
obligations
the continued right of navigation or
overflight may be revoked by intervention from the
archipelagic state
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CONTINENTAL SHELF
• the maritime zone which does not to be claimed
• inherently appurtenant to the costal state on the
ground of territorial principle
• constitutes a natural prolongation of the land territory
and exists ipso facto and ab inito by virtue of
sovereignty over the land
• not depend on occupation, effective or notional, or on
any express proclamation
• vertical scope:
– seabed and subsoil subject to sovereign rights of the
coastal State
– water column and air space distinct legal regime
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The limit of CS /Horizontal scope/
• inner / landward limit – the outer limit of the territorial
sea
• outer limit
– 1958 Convention on CS– exploitability criterion
• to a depth of 200 meters or, beyond that limit, to
where the depth of the superjacent waters admits of
the exploitation of the natural resources
– art. 76 (1) LOSC two possibilities of the seaward limit of
the continental shelf
• distance – 200 nm from the territorial sea baselines
where the continental margin does not extend up to
this distance
• contiguity - natural prolongation of its land territory
to the outer end of the continental margin (shall not
exceed 350 nm) + CLCS role
Rights and duties of coastal state
• Two distinct legal basis for coastal State rights in
relation to the seabed
– Classical doctrine of the continental shelf
– Newer concept of the EEZ
• width of 200 nm that may be greater or less than
the breadth of the ‘physical continental shelf’
• although CS and EEZ constitute different bases for
rights to the sea bed, the EEZ seabed sovereign
rights are exercised in accordance with the Part VI
provisions on CS
• Costal State rights with regard to continental shelf
described as ‘sovereign’ – all rights necessary for and
connected with the exploitation of the CS. Including
jurisdiction in connection with the prevention and
punishment of violations of the law
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• Continental shelf as a resource zone
Art. 77(1)
LOSC the coastal State exercises over the continental
shelf sovereign rights for the purpose of exploring it and
exploiting its natural resource [scope ratione materiae]
– mineral
– other non-living resources
– living resources belonging to sedentary species –
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
– wrecks of ships [archaeological and historical objects]
excluded form the category of ‘natural’ resources
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• right to construct and authorise the use of artificial
islands, installations and structures used for economic
purposes [art. 80
art. 60]
– exclusive – no State can undertake such activities
without the coastal State’s consent
– exclusive coastal State jurisdiction over artificial
islands, structures and installations [art. 60(2)]
• including jurisdiction with regard to customs, fiscal,
health, safety and immigration laws and regulations
• right to take appropriate measures to ensure the
safety both of navigation and of the artificial islands,
installations and structure [art. 60(4)]
– right to establish safety zones [art. 60(4)]
• up to 500 meters measured from the outer limits of
the installations
• prohibition to erect installations ‘where interference
may be caused to the use of recognised sea lanes
essential to international navigation’ [art. 60(7)]
• removal of abandoned or disused:
– no requirement of complete removal
– remove to the extent to ‘ensure safety of
navigation’, taking into account the generally
accepted international rules and standards, due
regard to fishing, the protection of the marine
environment and the rights and duties of other
States
• general right to regulate, authorize and conduct MSR
on the continental shelf in accordance with relevant
provisions of the Convention [art. 246(1)]
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– privileged position of ‘pure MSR’ [art. 246 (3)]
• conducted by the scientific community in public
interests
• coastal states shall in normal circumstances grant
consent for research
– absolute discretion in relation to ‘applied MSR’ [art.
246 (5)] – resource related research
• of direct significance for the exploration and
exploitation of natural resources
• whether pure or applied which involves drilling in the
continental shelf
• use of explosives
• introduction of harmful substances into the marine
environment
• construction, operation or use of artificial islands
and structures
• not to infringe or result in any unjustifiable
interference with navigation and other rights and
freedoms of other states as provided for in Convention
[high seas freedoms applicable top water column] [art.
78(2)]
• obligation to permit both the laying and the maintenance
of submarine pipelines and cables by other states on
the continental shelf [art. 79]
– delineation of the course – subject to the consent of
the coastal State
– due regard to cables or pipelines already in position
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The rights beyond the 200-mile zone
• Rights over non-living resources
– exclusive sovereign rights
– obligation to share out the revenue the coastal state
derives from exploiting the mineral resources beyond
200 nm
– art. 82 provides for the application of the common
heritage of mankind principle within the outer CS
– payments and contributions to ISA
• shall be made annually with respect to all production
at a site after the first 5 years of production at that
site
• for the 6 year, the rate of payment shall be 1% of the
value or volume of production at the site
• the rate shall increase by 1% for each subsequent year
until the 12 year and shall remain at 7% thereafter
• Rights over living resources
– non-sedentary species fall under the regime of the
freedoms of high seas
• MSR – coastal state may not exercise their discretion to
withhold consent to other states to undertake MSR
– except in relation to specific areas in which exploration
or exploitation is occurring, or is about to occur
50