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8. The Law of Sea
1 Territorial Sea
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: UNCLOS, Art 2(1) Internal Waters
Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State: UNCLOS, Art 8(1) Legal Status Coastal State has complete and exclusive sovereignty subject to the right of foreign vessels in distress to seek safety in internal waters: UNCLOS, Art 2(1) No right of innocent passage through internal waters.
* However, where the establishment of a straight baseline has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters: UNCLOS, Art 8(2) Bays A bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast: UNCLOS, Art 10(2)
* An indentation shall not be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation: UNCLOS, Art 10(2)
* The width of the indentation's mouth shall not exceed 24 nautical miles, otherwise, a straight baseline of 24 nautical miles shall be drawn within the bay: UNCLOS, Art 10(5) Straits A strait is a narrow stretch of water connecting two extensive areas of sea. Three characteristics:
* Between two lands
* Connects two seas
1 Unless otherwise provided, the law of sea is subject to the Convention on the Law of the Sea 1982.The Convention entered into force in 1994 and 160 states are now parties.
1 * Naturally develop.
8. The Law of Sea
Ports Coastal State has the right to regulate access to its ports: UNCLOS, Arts 25(2), 211(3), 255. Rivers If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-water line of its banks: UNCLOS, Art 9 Islands An island is a naturally formed area of land, surrounded by water, which is above water at high tide: UNCLOS, Art 121(1)
* Rocks which cannot sustain human habitation or economic life of their own shall have no EEC or continental shell: UNCLOS, Art 121(3) Characteristic of Territorial Sea
Being adjacent to territorial land and internal water: UNCLOS, Art 2(1) Being limited to a certain width, i.e., not exceeding 12 nautical miles, measured from baseline: UNCLOS, Art 3 Under the sovereignty of a coastal State: UNCLOS, Art 2(1) Legal Status of Territorial Sea
Costal State has complete and exclusive sovereignty subject to LOSC and other rules of international law: UNCLOS, Art 2(3)
* The sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil: UNCLOS, Art 2(2), mainly include:
- State ownership of natural resources;
- Sovereign over territorial airspace;
- Right of navigation and trade along the coast;
- Legislative power (for example, navigation; cable and pipe laying; fisheries; pollution; scientific research; customs; fiscal, immigration and sanitary regulations);
- Right of jurisdiction
- Right of hot pursuit
- Neutral right Breadth and delimitation of the territorial sea
Breadth of the territorial sea Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baseline: UNCLOS, Art 3 Interior limit of the territorial sea The interior limit of the territorial sea is the baselines of the territorial sea, which is the boundary between internal waters and territorial sea: UNCLOS, Art 3 Outer limit of the territorial sea The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea: UNCLOS, Art 4 If States are opposite or adjacent to each other Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the 2
8. The Law of Sea
nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. ...: UNCLOS, Art 15
* Exceptions: This does not apply where "it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith": UNCLOS, Art 15 Three consideration needs to be considered in delimiting the territorial sea: Anglo-Norwegian Fisheries Case:
* A State must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements. However, the delimitation should not be contrary to the customary international law.
* In deciding whether certain sea areas are subject to territorial sea or internal waters, consider whether they are sufficiently closely linked to the land domain.
* Certain economic interests peculiar to a region should be taken into account, the reality and importance of which are clearly evidenced by long usage.
1. In 1935 Norway delimited a certain fisheries zone which was exclusively reserved to its nationals.
2. This delimitation, using straight baselines, was opposed by the UK.
3. The coastal zone involved has a distinctive configuration (long and very broken). The Court upheld this Norwegian delimitation.
Anglo-Norwegian Fisheries Case U.K. v Norway (1951) Use the low-water mark. For the purpose of measuring the breadth of the territorial sea, it is the low-water mark as opposed to the high-water mark, or the mean between the two tides, which has generally been adopted in the practice of States. This criterion is the most favourable to the coastal State and clearly shows the character of territorial waters as appurtenant to the land territory.
Norway's baselines were valid. But the Norwegian delimitation is still subject to certain principles which make it possible to judge the delimitation's validity under international law. The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law. Certain basic considerations inherent in the nature of the territorial sea bring to light certain criteria which, though not entirely precise, can provide courts with an adequate basis for their decisions, which can be adapted to the diverse facts in question.
Among these some reference must be made to the close dependence of the territorial sea upon the land domain. It is the land which confers upon the coastal State a right to the waters off its coasts. It follows that while such a State must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements, the drawing of base-lines must not depart to any appreciable extent from the general direction of the coast.
Another fundamental consideration is the more or less close relationship existing between certain sea areas and the land formations which divide or surround them. The real question raised in the choice of base-lines is in effect whether certain sea areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters. This idea, which is at the basis of the determination of the rules relating to bays, should be liberally applied in the case of a coast, the geographical configuration of which is as unusual as that of Norway.
The last consideration is that of certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by long usage. Skjaergaard; defined. A skjaergaard is made up of around 120,000 insular formations, lying along the coast of the mainland. The clearest dividing line between land and sea is the skjaergaard, not the coast of the mainland. Straight baselines method; defined. This method consists in selecting appropriate points on the low water mark and drawing straight lines between them. Method applies to well-defined bays and cases of minor curvature of the coastline. The goal is to provide a simpler form to the belt of the territorial waters. 3
8. The Law of Sea Trace parallele method; defined. This method consists in drawing the outer limit of the belt of territorial waters by following the coast in all its sinuosities. Method applies to ordinary coasts. Jurisdiction over Foreign Ships in the Territorial Sea
2 Definition of Innocent Passage All ships, including warships, regardless of cargo, armament or means of propulsion, enjoy the right of innocent passage through the territorial sea in accordance with international law, for which neither prior notification nor authorisation is required: UNCLOS, Art 17
* Passage means navigation through the territorial sea for the purpose of : UNCLOS, Art 18
* traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or
* proceeding to or from internal waters or a call at such roadstead or port facility.
* Passage is innocent so long as it is not prejudicial to the peace, good order or security of the costal State: UNCLOS, Art 19
* Passage who shall be considered to be prejudicial to the peace is considered in art.19(2)
* "Warship" means a ship belonging to the armed forces of a state bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline: UNCLOS, Art 29. Submarines (warships or otherwise) to navigate on the surface need to show their flag: Article 20.
* It is a matter for evaluation of the submarine's behaviour to see if it is possible to be an innocent passage. (Notes) Prescriptive jurisdiction for innocent passage The Costal State may adopt laws and regulations relating to innocent passage through the territorial sea: UNCLOS, Art 21 The Costal State shall not impose requirement on foreign ships or discriminate in form or in fact against the ships of any State: UNCLOS, Art 24 Warship has to comply with the law and regulations of the costal State: UNCLOS, Art 30 Enforcement jurisdiction for innocent passage The costal State may take the necessary steps in its territorial sea to prevent passage which is not innocent: UNCLOS, Art 25(1)
* Such steps may include the use of reasonable force as a last resort: Saiga Case
* The costal State may , without discrimination in form or in fact among foreign ships, suspend temporarily in specified area of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security: UNCLOS, Art 25(3)
* Such suspension shall take effect only after having been duly published. No Charge may be levied upon foreign ships by reason only of their passage through the territorial sea: UNCLOS, Art 26(1)
* Except for specific services rendered to the ship: (2) The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea unless: UNCLOS, Art 27
* if the consequence of the crime extend to the coastal State; (1)(a)
* if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (1)(b)
* if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (1)(c)
* if such measure are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. (1)(d)
* Costal State can take steps authorised by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters. (2) --> The criminal escaped from inland.
* Exceptions: if the ship did not entering internal waters, the Costal State cannot perform an arrest or investigation. (5)
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