Law of the Sea

LAW OF THE SEA

Md. Zakir HossainProfessor

University of ChittagongE-mai: [email protected]

Cell Phone: 017121713151

mailto:[email protected]

Since humanity first set forth upon the seas, the issue of sovereign control over the oceans has been an ongoing concern. Prior to the 20th century, the oceans had been subject to the freedom of the seas doctrine. This principle, adopted in the 17th century, limited national rights and jurisdiction over a narrow band of water along a nations coast, the rest of the sea being free to all and belonging to none.

Nearly a century later, the "cannon-shot" rule became the basis for determining how much of the adjacent oceans were under the jurisdiction of a nation. The cannon-shot rule set forth that a nation controlled a territorial sea as far as a projectile could be fired from a cannon based on shore. In the 18th century this range was approximate three nautical miles. As time progressed, three miles became the widely accepted range for the territorial sea.

A 3-mile territorial sea zone wasclaimed in the seventeenth century.

Due to the slow pace of technological developments prior to the Industrial Revolution, these simple rules provided effective governance of the world's oceans. With the technological developments of the mid-19th and early-20th centuries, however, not only did ships become more powerful, but technology allowed humanity to exploit ocean resources that had never before been envisioned. Fishermen, once limited to areas near their own coasts, were now equipped with vessels that could allow them to stay at sea for months at a time and capture fish harvests that were far from their native waters. Virtually unrestrained, fleets from around the world traveled to areas rich in fish-stocks. The lack of restraint on the part of these fishermen resulted in fish stocks around the world being depleted without regard to the stability of their numbers.

Evolving technology also allowed for the exploitation of previously inaccessible off-shore resources, most notably oil (but also diamonds, gravel, and precious metals). To illustrate the rapidity of these developments, in 1947 off-shore oil production in the Gulf of Mexico was still less than 1 million tons. By 1954, production had grown close to 400 million tons. As a matter of perspective, just in the Gulf of Mexico, the United States alone currently produces 218,192 tons daily, for a total of 79.6 million tons annually, reflecting a steadily decreasing trend that began in the 1970's.

In order to protect local resources, be they biological or mineral, nations began expanding their claims of sovereignty beyond the traditional 3 mile limit. The first nation to challenge the long-standing freedom of the seas doctrine was the United States. On September 28, 1945, President Harry S. Truman signed what has become commonly known as the Truman Proclamation. The proclamation set a claim of sovereignty by the United States to the outer continental shelf (OCS) and the resources therein as well as establishing the right of the U.S. to establish conservations zones "in areas of the high seas contiguous to the coasts of the United States." While recognizing some limited sovereignty over an expanded region of the sea, the proclamation was careful to stipulate that the new US policy did not affect "the right [of] free and unimpeded navigation."

After the United States expanded its claim, it was not long before other nations followed suit. By 1950, Argentina was actively claiming its continental shelf as well as the water column above it, Ecuador, Chile, and Peru were asserting rights over a 200-mile zone in order to protect its biological resources from foreign fleets, and a spate of Arab and Eastern European nations were laying claim to a 12-mile territorial sea. There was a growing understanding, however, that such a fractured regime could not continue.

UNCLOS IRecognizing the conflicts that were resulting from the current regime, the General Assembly adopted resolution 1105 (XI), which called for the convening of the United Nations Convention on the Law of the Sea in Geneva in 1858. Eighty-six nations participated (now commonly referred to as UNCLOS I). The meeting produced four separate conventions -1) the Convention on the Territorial Sea and the Contiguous Zone (established sovereignty rights and rights of passage through the territorial sea, established the Contiguous Zone to extend 12 nautical miles from the baselines, but failed to set standards of limits on the territorial sea); 2) the Convention on the High Seas (established access for landlocked nations, expounded on the concept of "flag state," outlawed the transport of slaves, covered piracy, established safety and rescue protocols, established a national duty to prevent pollution, and established rights to laying of undersea cables and pipelines.

3) the Convention on Fishing and Conservation of the Living Resources of the High Seas (established the right of coastal nations to protect living ocean resources, required nations whose fleets leave their territorial sea to establish conservation measures, and established measures for dispute resolution); 4) and the Convention on the Continental Shelf (established the regime governing the superjacent waters and airspace, the laying and maintenance of submarine cables or pipelines, the regime governing navigation, fishing, scientific research and the coastal nation's competence in these areas, delimitation, and tunneling.

The Convention also produced an Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes (provides for the compulsory jurisdiction of the International Court of Justice, or for submission of the dispute to arbitration or conciliation).While UNCLOS I saw a significant development in the international legal regime governing the oceans, there were still many issues left unsettled.

UNCLOS IIIn an attempt to deal with the issues that remained unresolved after UNCLOS I, the General Assembly called for a second United Nations Convention on the Law of the Sea (now commonly referred to as UNCLOS II). The parties met for just over a month in early 1960 with the objective of settling the question on the breadth of the territorial seas and fishery limits. While the conference adopted two resolutions, the parties were unable to come to consensus on the issues at hand

UNCLOS IIIFrustrated by the continuing inconsistency in the ocean governance regime, Malta's ambassador to the United Nations, Arvid Pardo, called upon the General Assembly to take action and called for "an effective international regime over the seabed and the ocean floor," that clearly defined national jurisdiction. One month later, the General Assembly adopted resolution 2467 A (XXIII) and resolution 2750 C (XXV), which created the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction and called for the convening of a third Law of the Sea meeting to be held in 1973.

The deliberations lasted for nine years, saw the participation of 160 nations, and concluded in 1982 with the United Nations Convention on the Law of the Sea, which is now commonly referred to as simply "UNCLOS" or the Law of the Sea Treaty. UNCLOS is one of the largest, and likely one of the most important, legal agreements in history. The treaty contains 320 articles and 9 annexes. It synthesizes and builds upon the agreements that were developed at the first conference (see UNCLOS I above). The agreement addresses a myriad of issues including navigational rights of ships and aircraft, limits on the extension of national sovereignty over the oceans, environmental protection of the oceans, conservation of living resources and mining rights.

While UNCLOS was first signed in December of 1982, the agreement did not come into force until November of 1994, a period of nearly 12 years. UNCLOS required 60 signatures for ratification and could only enter into force one year after the final nation had ratified or acceded to the treaty. The main reason many nations took so long to sign the treaty is because of Article 309, which prohibits nations from taking out reservations to any part of a treaty. A reservation is a statement made by a nation when accepting a treaty, whereby it excludes or modifies the legal effect of certain provisions of a treaty as those terms apply to the nation accepting the treaty. The inability of a nation to take out reservations to particular terms of the treaty caused many nations to hesitate. UNCLOS represented a significant number of compromises and some of the terms of the agreement did not sit well with various nations. However, in order to establish a unified doctrine of the law of the sea, UNCLOS necessarily had to prevent reservations or risk maintaining a fractured regime.

THE LAW OF THE SEA, 1982

• Adopted by the UNCLOS III on 10 Dec, 1982.• Contains 320 Articles and 9 Annexes,• Entered into force on 16 Dec, 1994.• Part XI was amended by the 1994 New York

Implementation Agreement.• Currently, it has 157 Signatories and 153 State

Parties.

Legal Significance of the UNCLOS 1982

• It is the “Constitution of the seas”; a single comprehensive convention encompassing all matters relating to the seas.

• Consensus on territorial sea limits• New legal regime of the EEZ• New legal regime of the International Sea Bed Area• Establishment of the International Tribunal for the

Law of the Sea• Art. 311(1): UNCLOS prevails over four Geneva

Conventions

Divisions of Ocean AreasOne of the most powerful features of UNCLOS is that it settled the question of the extent of national sovereignty over the oceans and seabed. Parts II, V, VI, and VII establish the various regions of the oceans, who has sovereignty over each, and to what degree. The following sections explain both how the maritime regions are divided and the sovereign powers that nations may exercise over each region. Baselines, Internal Water, Territorial Sea, Contiguous Zone, Exclusive Economic Zone (EEZ), Continental Shelf, Area. High Sea

The baseline is the boundary from which a nation may begin measurements to determine the portion of the adjacent oceans or continental shelf over which it may exercise sovereignty. Except in some special cases, the baseline is the low-water line along the coast. Detailed explanations of how baselines are determined are provided in Articles 5-7 and 9-14. Special rules have been established for determining the baselines of archipelagic nations (nations that consist of a number of small islands such as the Philippines) can be found in Article 47

Baselines and Measurement of the TS

• Base line: the line along the coast from which the territorial sea and other maritime zones are measured.

• Two types of baselines: Normal and strait • Normal baselines (Art. 5): low water line along

the coast.• Lower water line: The line along the coast at

the time of low-tide.

Straight baselines

• Straight baselines: Art. 7(1) In localities (a) Where the coastline is deeply indented and cut into; or (b) If there is a fringe of islands along the coast in its immediate vicinity. The method of strait baselines joining the appropriate points may be employed. Art. 7(4) Straits baselines shall not be drawn to and

from low tide elevations….

Anglo-Norwegian Fisheries case (1951) ICJ Rep. 116

• Norwegian Degree of 1935• Norway’s TS was not measured from the low water

line along the coast, but from strait baselines linking the outermost points on the extremities of the islands and headlands of the coast.

• The Southern portion of the lines embraced clusters of islands. The Northern portion covered a heavily indented coastline.

• The ICJ upheld the Norwegian delimitation.

Internal waters [Art. 8]

1. Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State….

Low-tide elevations [Art. 13]

• A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide.

• If a low-tide elevation is situated wholly or partly at a distance not exceeding the breath of the territorial sea from the mainland or an island, the low water line on that elevation may be used as the baseline for measuring the territorial sea.

[Art. 13(1)]

Low tide elevation [Cont.]

• Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea, it has no territorial sea of its own. [Art. 13 (2)]

• It means that there can be no leap-frogging.

Delimitation [Art. 15]

Where the coast of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest point from which the breadth of the territorial seas of the two States is measured.

Territorial SeaArticle 3 of UNCLOS declares that a nation may establish a territorial sea that extends up to 12 nautical miles from the baselines. Within the territorial sea, a nation has exclusive sovereignty over the water, seabed, and airspace. The treaty establishes that all nations have the right of innocent passage through the territorial sea of another nation and that, outside certain conditions, the nation laying claim to the territorial sea cannot hamper innocent passage of a foreign vessel.

UNCLOS adopted the basic concepts of the territorial sea and the right of innocent passage that had been codified in the Convention on the Territorial Sea and the Contiguous Zone, but the new treaty went a step further by establishing the limits of a nation's territorial sea.

TERRITORIAL SEA

Breadth of the Territorial Sea • Sovereignty in the TS (Art. 2) “The sovereignty of a coastal State extends,

beyond its land territory and internal waters…, to an adjacent belt of sea, described as the territorial sea.”

Breadth (Art. 3): 12 nautical miles from the baselines

The Right of Innocent Passage

• Ships of all States enjoy the right (Art.17)• Meaning of ‘passage’ (Art. 18)• Meaning of ‘innocence’ (Art. 19)• Jurisdiction (Arts. 27-28)• Immunity of war ships and government ships

operated for non-commercial purposes (Arts. 30-32)

Meaning of ‘passage’

• Article 17: Ships of all states enjoy the right of innocent passage through the territorial sea.

Meaning of ‘Passage’• Article 18: (1) Passage means navigation through the

territorial sea… (2) Passage shall be continuous and expeditious.

Passage includes stopping and anchoring only in so far as necessary by force majeure or distress.

Meaning of ‘innocence’ [Art. 19]

(1) Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State….

(2) Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the TS it engages in any of the following activities: …

(i) any fishing activities; (j) the carrying out of research or survey activities; (l) any other activity not having a direct bearing on

passage.

PP v Narogne Sookpavit [1987] 2 MLJ 100

PP v Narogne: Thai fishermen were on a vessel which was then at sea about 3 miles off the Malaysian coast. There were fishing equipment on board the vessel. They were arrested by Malaysian Naval Authority for breaching its national laws. It was held that the passage by fishermen was not innocent passage.

• Held: The passage of Thai fishermen within the Malaysian TS was not an innocent passage because it contravened the domestic law of Malaysia.

Corfu Channel case (UK v Albania), (1949) ICJ Rep., p. 14

• Art. 24 (danger to navigation)

• Passage of war ships through straits used for international navigation.

Coastal state’s legislative jurisdiction

• Article 21 allows the coastal State to adopt laws and regulations, relating to innocent passage through the territorial sea, ‘in respect of: navigation, conservation of the living resources, fisheries, pollution, scientific research, and customs, fiscal, immigration and sanitary regulations. Art. 21(1)

• These laws may not affect the design, construction, manning or equipment of foreign vessels unless they conform to generally accepted international standards. Art. 21 (2).

The issue of the extent of Coastal state’s legislative jurisdiction

• The Coastal State may legislate on matters expressly enumerated in Article 21.

• It is also well established in State practice that ships not engaged in innocent passage are subject to all coastal State laws.

• Beyond this, it seems a legitimate inference from the principle of coastal State’s sovereignty over the territorial sea that States retain the right to extend any other legislation apart from that dealing with navigation and so on, to foreign ships in their waters.

Coastal State’s enforcement jurisdiction

• War ships and government ships operated for non-commercial purposes enjoy immunity from local jurisdiction.

• In the case of an ordinary foreign ship, both the coastal state and the flag State have sufficient grounds to exercise jurisdiction:

• Coastal State – on the basis of the territorial principle; flag State –nationality principle.

• Two competing grounds for jurisdiction: thus the UNCLOS 1982 makes a compromise in Art. 27.

Criminal jurisdiction [Art. 27]

1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:

Art. 27 [Cont.]

(a) If the consequences of the crime extend to the coastal State; (b) If the crime is of a kind to disturb the peace of the country or the good order of the TS; (c) If the assistance of the local authorities has been requested…; or (d) If such measures are necessary for the suppression of illicit traffic in narcotic drugs…

Art. 27 [Cont.]

2. The above provisions do not affect the right of the coastal State to take any steps authorised by its laws for the purpose of the arrest or investigation on board a foreign ship passing through the territorial sea after leaving the internal waters.

Civil jurisdiction [Art. 28]

1. The coastal State should not stop or divert a foreign ship passing through the TS for the purpose of exercising civil jurisdiction in relation to a person on board the ship. [Person on board]

2.The coastal State may not…arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course of or for the purpose of its voyage through the waters of the coastal State. [process against vessel]

Art. 28 [Cont.]

3. Para. 2 is without prejudice to the right of the coastal State in accordance with its laws, to…arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.

[Ships at anchor].

Immunity from Jurisdiction

Article 29 - Definition of warships • For the purposes of this Convention, "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.

Article 30 If any warship does not comply with the laws

and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately.

Article 31

The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law.

Article 32

With such exceptions as are contained in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships for non-commercial purposes.

Contiguous ZoneThe Contiguous Zone is a region of the seas measured from the baseline to a distance of 24 nautical miles. Within this region, a nation may exercise the control necessary to prevent the infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea, and punish infringement of those laws and regulations committed within its territory or territorial sea. One of the primary purposes behind establishing the contiguous zone was to prevent smuggling.

Exclusive Economic ZoneThe Exclusive Economic Zone or "EEZ" is a region that stretches a distance of no more than 200 nautical miles from a nation's baselines. Within its EEZ, a nation may explore at exploit the natural resources (both living and inanimate) found both in the water and on the seabed, may utilize the natural resources of the area for the production of energy (including wind and wave/current), may establish artificial islands, conduct marine scientific research, pass laws for the preservation and protection of the marine environment, and regulate fishing.

-

One of the primary purposes behind establishing the EEZ was to clarify the rights of individual nations to control the fish harvests off their shores. The 200-mile limit established by UNCLOS is not an arbitrary number. It is derived from the fact that the most lucrative fishing grounds lie within 200 nautical miles from the coast as this is where the richest phytoplankton (the basic food of fish) pastures lie.

The creation of the EEZ gave coastal nations jurisdiction of approximately 38 million square nautical miles of ocean space. The world's EEZs are estimated to contain about 87% of all of the known and estimated hydrocarbon reserves as well as almost all offshore mineral resources. In addition, the EEZs contain almost 99% of the world's fisheries, which allows nations to work to conserve the oceans vital and limited living resources.

THE EXCLUSIVE ECONOMIC ZONE • Definition and breadth An area beyond the TS (Art. 55); 200 nautical miles from the baselines (Art. 57) • Sui generis (Special) nature of EEZ:• Rights and duties of coastal State (Arts. 56,73)• Rights and duties of other states (Arts. 58)

Rights and duties of the coastal State [Article 56]

1. In the EEZ, the coastal State has: (a)Sovereign rights for the purpose of exploring,

exploiting, …the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and subsoil…

(b) Jurisdiction….2. ..the coastal state shall have due regard to the rights

and duties of other states….3. The rights with respect to the sea-bed and subsoil

shall be exercised in accordance with Part VI(on the CS).

Rights and Duties of Other States

Art. 581. In the EEZ, all States…enjoy, subject to the relevant

provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of sub-marine cables and pipelines,…

3. In exercising their rights…, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State…

Law enforcement by costal StateArt. 73

1. The coastal State may… take such measures, including boarding, inspection, arrest and judicial proceedings…to ensure compliance with the laws and regulations adopted by it….

2. Arrested vessels and their crew are to be promptly released upon posting of reasonable bond or other security. [M/V Saiga case. See Art. 292: ‘prompt release’

3. Coastal State penalties for violations of fisheries laws and regulations…may not include imprisonment.

Saint Vincent and the Grenadines v. Guinea International Tribunal for the Law of the Sea 4 December 1997 The M/V SAIGA CASEFactsa. On 13 November 1997, the Agent of Saint Vincent and the Grenadines filed in the Registry of the Tribunal by facsimile an Application under article 292 of the United Nations Convention on the Law of the Sea, instituting proceedings against Guinea in respect of a dispute concerning the prompt release of the M/V Saiga and its crew.

b. The Saiga was taken into custody by the Guinea authorities under suspicion of smuggling in the Exclusive Economic Zone of Guinea.c. The Saiga was serving as a bunkering vessel, refueling fishing vessels and other vessels operating off the coast of Guinea.d. When arrested, the Saiga was at a point further south than the limits of the Guinea specific economic zone. When being arrested, two crewmembers were seriously injured on board the ship. The Saiga was detained and brought back to Guinea. Atthe time of arrest, the vessel was drifting within the Exclusive Economic Zone of Sierra Leone.

e. Saint Vincent and the Grenadines are asking for the return of the vessel under Article 292 of the United Nations Convention on the Law of the Sea, concerning the prompt release of vessels and crews upon the posting of a bond or other financial security.f. Guinea argues that it executed a legitimate arrest as it came about at the end of a hot pursuit following a violation of customs laws in the contiguous zone of Guinea.g. Saint Vincent and the Grenadines and Guinea are both State parties of the United Nations Convention on the Law of the Sea. The Tribunal therefore hasjurisdiction in this case.

Questionsa. Was the Saiga in violation of violating customs laws while in the Exclusiveeconomic zone of Guinea by refueling other vessels in these waters?b. Is Guinea in violation of the UN convention, Article 292 for failing to not complywith the prompt release of the vessel and crew upon receiving bond?

Decisionsa. Concerning the Question of the violation of customs laws of Guinea by the Saiga, the tribunal concluded that during the time of arrest, the Saiga was not in violation of any of Guinea’s custom laws as it was acting with no intention of smuggling. It was acting though as a fishing vessel in this instance under the facts that it was only refueling other vessels in the area.

b. Concerning the Article 292 of the Un Convention, the tribunal found that Guineawas in violation of this code and was ordered to make reparations to Saint Vincent and the Grenadines. The crew and vessel was to be promptly released. Guinea confiscated the oil that the vessel was carrying and the oil was therefore seen as a bond. Guinea was ordered to pay for the oil which it had confiscated as it acted as a bond and was also ordered to pay Saint Vincent and the Grenadines the sum of four hundred thousand United States dollars($ 400,000.00).

Principlesa. The main principle in this case as not the question if the Saiga was in violation of operating the Exclusive Economic Zone of Guinea, but rather the question if Guinea was in violation of Article 292 of the UN Convention and had not proceded correctly in handling the prompt release of the vessel and crew upon posting a bail bond.

ConclusionThe International Tribunal for the Law of the Sea decided in this case that Saint Vincent and the Grenadine’s argument against Guinea was well founded and therefore decided to rule in their favor concerning the release of the vessel and its crew. The case is important in International Law because it was the first time Article 292 had been examined under international circumstances and it stands as a judgment that must be followed for the laws of the seas.

200NM

24NM

12NM

Zone

Territorial Sea

CONTINENTAL SHELFSovereign rights for exploring and exploiting non-living Resources of sea-bed and subsoil, plus sedentary species

EXCLUSIVE ECONOMIC &SELF DEFENSE ZONE

Sovereign rights for exploring, exploiting,and managing living and non-living Resources of the water, sea-bed, and subsoil.

Contiguous

HIGH SEAS

THEAREA

Common Heritage of mankind

Sea Level

SHELF

UPPER SLOPE

PLATEAU OR

TERRACE LOWERSLOPE RISE

DEEPOCEAN

TE

RR

ITO

RIA

L S

EA

B

AS

EL

INE

CONTINENTAL SHELFUnlike the other boundaries that have been thus far discussed, the continental shelf is a real, naturally-occurring geological formation. It is a gently sloping undersea plain between the above-water portion of a landmass and the deep ocean. The continental shelf extends to what is known as the continental slope, a point at which the land descends further and marks the beginning of the ocean itself. It is host to most of the world's oceanic plant and animal life and plays a vital role in energy production, from offshore oil and gas reserves to renewable energy resources.

When UNCLOS refers to the continental shelf, however, it is using "continental shelf" as a legal term. While the EEZ captures a lot of the continental shelf for many countries, it does not capture all of it. As such, UNCLOS includes provisions for nations to lay claim to a continental shelf that exceeds 200 nautical miles from the baseline by establishing the foot of the continental slope as set forth in Article 76, paragraphs 4-7. These provisions allow for an extension of an additional 150 nautical miles from the baseline or 100 miles from the 2,500 meter depth.

Nations exercise over the shelf the sovereign right to explore and exploit the non-living natural resources of the continental shelf as well as the living organisms that live on the seabed itself. The water above the portion of the continental shelf that is not contained within the EEZ remains part of the high seas (as does the airspace above that area). Nations wishing to request an extension of sovereignty over an extended portion of their naturally occurring continental shelf must do so within 10 years of UNCLOS coming into force for that particular nation .

The extension of sovereignty to the extended continental shelf comes with a price. A nation that exploits resources on the continental shelf beyond the 200 nautical mile mark is allowed five years in which to develop and exploit the resources of the shelf without charge. Starting on the sixth year, a nation has to pay 1 percent of the value of the resources produced from the site. The rate of payments increase by 1 percent for each year until the twelfth year and is capped at 7 percent thereafter.

Developing nations are exempted from this provision. Revenues generated from these operations are deposited with the International Seabed Authority and equally distributed among national parties to UNCLOS.

THE CONTINENTAL SHELF

• Background: Truman Proclamation • Definition of continental shelf: 1958 Convention• Definition of continental shelf: UNCLOS 1982, Art. 76

(1) [p. 309]• Maximum limit of the continental shelf: Art. 76(5)• Rights of the coastal State: (Art. 77)• Delimitation: (Art. 83)

Natural and legal shelf

• Continental shelf: “gently sloping submerged land surrounding the continents and islands” [the shelf slopes gently away from the coast before it goes steeply down to the great ocean depths].

• Natural continental shelf: the shelf given to a coastal state by nature on the basis of its peculiar geological situations. [Natural shelf varies in width from less than 5 miles to 750 miles]

• Legal continental shelf: the shelf allowed by the UNCLOS 1982.

Truman Proclamation

• The 1945 Proclamation that the US had exclusive right to exploit the natural resources of the seabed and subsoil of the continental shelf.

• It created a precedent, followed by other states, and gave rise to a rule of CIL.

Definition of the CS [Art. 76(1)]

The continental shelf of a coastal State comprises thesea-bed and subsoil of the sub-marine areas that extend beyond its territorial sea (1) throughout the natural prolongation of its land territory to theouter edge of the continental margin, or (2) 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.

Minimum limit of the CS

• 200 nautical miles from the base lines is the minimum limit of the legal continental shelf for all coastal states regardless of the extent of their natural shelf.

Maximum Limits of the CS

Art. 76(5)…[T]he outer limits of the continental shelf…

either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres…

Rights of the Coastal State over its Continental Shelf

Art. 771 …[S]overeign rights for the purpose of exploring it

and exploiting its natural resources….4. The natural resources…consist of the mineral and

other non-living resources of the sea-bed and sub-soil together with living organisms belonging to sedentary species, that is to say, organisms which…either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

Delimitation of the CS (1) Geneva Convention on the CS, 1958, Art. 6

In the absence of agreement, and unless another boundary line is justified by ‘special circumstances’:

(1) (in the case of opposite States) the boundary is “the median line, every point of which is equidistant” from the nearest point of the baselines, or

(2) (in the case of adjacent States) the boundary shall be determined by the application of the “principle of equidistance”, from the nearest points of the baselines.”

The principle is commonly known as the “equidistance/special circumstances rule”.

(2) Customary international law

• North Sea Continental Shelf cases, (1969) ICJ Rep. 3. “Delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances”.

• [The Court held that the principle of equidistance was not a rule of CIL for the delimitation of the CS between adjacent states (The Court rejected only the second part of Article 6(2) ]

• [It seems that to draw a median line between opposite states was accepted by the court as reflective of customary law.]

• Tunisia Libya Continental Shelf case, 1982 ICJ Rep. 18. “The equitableness of a principle must be assessed in the light of its usefulness for the purpose of arriving at an equitable solution”.

• In the same case, the Court emphasized that: “each continental shelf case in dispute should be considered and judged on its own merits, having regard to its own peculiar circumstances.”

• Continental Shelf case (Libya v Malta) 1985 ICJ Rep. 13. [The Court reaffirmed the equitable nature of the equidistance principle in opposite state situations and concluded that drawing a median line between the two coasts would achieve an ‘equitable result’]

(3) The UNCLOS 1982 [Art. 83]

1. The delimitation of the CS between States with opposite or adjacent coasts shall be affected by agreement on the basis of international law… in order to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV[on the settlement of disputes].

Even though the exact words “equitable principles’ cannot be found in Art. 83, the phrase “to achieve equitable solution” appears to express the objective of achieving “equitable result”, which is the fundamental norm of CIL.

Settlement of disputes Compulsory Procedure entailing binding decisions [Art.

287]

When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes:

(a) International Tribunal for the Law of the Sea;(b) The International |Court of Justice;(c) An arbitral tribunal constituted under Annex VII;(d) A special arbitral tribunal constituted under Annex

VIII.

Map illustrating the high seas. All areas in blue are considered part of the high seas and are not subject to national appropriation.

HIGH SEASWaters beyond a nation's EEZ are considered to be the high seas. The high seas are still governed the "freedom of the seas" concept, albeit a modified version. Just as with the classical version, no nation my lay claim to any portion of the high seas. Per the terms of the treaty, "[t]he high seas are open to all States, whether coastal or land-locked."

On the high seas, nations are permitted freedom of navigation and over flight, freedom to lay submarine cables and pipelines, freedom to construct artificial islands, freedom of fishing, and freedom of scientific research. Other provisions regarding the high seas include a prohibition on the transport of slaves, piracy, illegal drug trafficking, and the suppression of unauthorized radio or television broadcasting.

THE REGIME OF THE HIGH SEAS

Definition: Art. 86

“All parts of the sea that are not included in the EEZ, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.”

Freedom of the high seas [Art. 87]

1. The high seas are open to all States…. Freedom of the high seas…comprises: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines; (d) freedom to construct artificial islands…; (e) freedom of fishing; and (f) freedom of scientific research.

Maintenance of order on the High seas

Nationality of ships Art. 90: Every State has the right to sail ships

flying its flag on the high seas.Art. 91: Ships have the nationality of the State

whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.

[Nottebohm case; ]

Jurisdiction over ships sailing on the high seas

Art. 92: Ships shall sail under the flag of one State only and…shall be subject to its exclusive jurisdiction.

• [See Lotus case; ]

Two important exceptions to freedom of the high seas

The general rule: Ships navigating on the high seas are under the exclusive jurisdiction of the flag State and no other State can exercise jurisdiction.

But there are certain exceptions:(1) Piracy jure gentium; and(2) The right of hot pursuit.

Piracy

- Distinction between (1) piracy at municipal law; and (2) piracy jure gentium- Lotus case Piracy – an offence against the law of nations; A pirate is regarded as hostis humani generis

Definition [Art. 101]

Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship …, and directed:

(i ) on the high seas against another ship , or against persons or property on board such ship;

(ii) against a ship, persons or property in a place outside the jurisdiction of any State.

Elements of pircy jure gentium

Three elements of piracy:(1) Any illegal acts of violence, detention or

depredation committed for private ends; [Achille Lauro Incident; SUA Convention 1988](2) Two-ship rule (if committed on the high seas);

[generally, mutiny is not piracy](3) Committed on the high seas or in a place outside

the jurisdiction of any State.

Mutinied government ship

Art. 102 The acts of piracy committed by a warship or

government ship whose crew has mutinied and taken control of the ship are assimilated to acts committed by a private ship.

Universal jurisdiction [Art. 105]

“… every State may seize a pirate ship,… and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ship, or property, subject to the rights of third parties acting in good faith.”

- Pirata non mutat dominium (Rightful owner is not deprived of his title)

- Case for universal jurisdiction: Re piracy Jure gentium

Right of hot pursuit

• Right of hot pursuit: an exception to freedoms of the high seas.

• The coastal is justified to pursue a foreign vessel, which violated its laws and regulations within its maritime zones, to the high seas and there arrest it.

• ‘Hot’ here means ‘immediate’. • Justification: a continuation of an act of jurisdiction

which has begun within its maritime zones.

[Art. 111]

1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal state has good reason to believe that the ship has violated the laws and regulations of that state. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the territorial sea or the contiguous zone of the coastal state, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted.

Art. 111 [Cont.]

2. The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive economic zone or on the continental shelf….

3. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own state or of a third state.

Art. 111 [Cont.]

4. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself that the ship pursued or one of its boats or other craft working as a team and using the ship pursued as a mother ship is within the limits of the territorial sea, or the exclusive economic zone or above the continental self. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship.

Art. 111 [Cont.]

5. The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect….

8. Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained.

The M/V Saiga (No. 2) case

[ITLOS, case No. 2, 1999]

• Held: “The conditions for the exercise of the rt. of hot pursuit under Art. 111 of the Convention are cumulative; each of them has to be satisfied.”

• The Tribunal found that several of these conditions were not fulfilled. First, no laws or regulations of Guinea were violated by the Saiga. …importing fuel oil into its ‘customs radius’, which extended to 250 kilometres from the coast of Guinea.

• The Tribunal found that the Convention did not empower a coastal state to apply its customs laws in respect of any parts of the EEZ.

The use of force in hot pursuit The I’m Alone (1935) 3 RIAA 1609

The principle laid down in the case:“The pursued State may use necessary and

reasonable force for the purpose of effecting the objects of boarding, searching, seizing and bringing into port the suspected vessel…”

The ‘I am Alone case’ involved a British ship of Canadian registry controlled and managed by United States citizens that was sunk. It was alleged that the ship was used in smuggling alcoholic liquor into the United States. At that time, it was illegal to smuggle alcohol. It was ordered to stop for inspection at a point outside the U.S territorial waters but declined. This led to a pursuit of the ship by a vessel, Wolcott and after two days of pursuit it was joined by the coast guard vessel, Dexter, which eventually sunk the ‘I’m Alone’. This resulted to death of one person and the rest of the crew was rescued.

The Red Crusader case

“ T]he captain of Danish vessel exceeded legitimate use of armed force on two counts: (a) firing without warning of solid gun-shot; (b) creating danger to human life on board the Red Crusader without proved necessity.”

• The MV Saiga (No. 2) case “Guinea used excessive and unreasonable force in stopping and arresting the Saiga. The Saiga was an unarmed tanker almost fully laden with gas oil, with a maximum speed of 10 knots and Guinea fired at the ship with live ammunition, using solid shots from large-calibre automatic guns.”

Principle of constructive presence The Araunah foreign vessel used canoes for illegal sealing.

R v Mill (1995) Croydon Crown Court “A vessel, which has never been in the territorial sea (or

EEZ) of a coastal State, can be pursued and arrested on the high seas, if one of its boats or other craft working as a team and using the ship pursued as a mother ship has violated the laws of the costal State within the territorial sea (or EEZ) of that State.”

The AreaThe "Area" is the seabed and ocean floor that is beyond the limits of national jurisdiction.This is the portion of the seabed that is beyond the EEZ or the recognized continental shelf of a country. It would be inaccurate to say that the Area is the seabed underneath the high seas, since the high seas can overlap portions of continental shelf that are subject to national sovereignty. The Area is particularly unique in that UNCLOS designates it and the resources it contains as "the common heritage of mankind.

No nation is allowed to lay claim to any part of the Area or its resources. Regarding the resources, "[a]ll rights in the resources of the Area are vested in mankind as a whole...." As a result, companies that wish to exploit the mineral resources of the Area will have to enter into a profit sharing agreement in which the profits derived from mineral resources captured in the Area will be shared with developing nations

The regime of deep seabed mining [International Sea Bed Area]

Definition: Art. 1(1): The “Area” is the sea bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction.

Art. 136: The Area and its resources are the common heritage of mankind.

Art. 153: Activities in the Area shall be, carried out, by the (International Sea Bed) Authority on behalf of mankind as a whole.

Agencies Created by UNCLOSIn order to administer UNCLOS, the treaty created four bodies to handle specific issues. These are International Seabed Authority, Commission on the Limits of the Continental Shelf, International Tribunal for the Law of the Sea and the Enterprise.

International Seabed AuthorityThe International Seabed Authority is the organization that is responsible for the governance of the Area. Article 156 of the Convention mandates the creation of the Seabed Authority, which is commonly referred to as "the Authority" throughout most of the treaty. All nations that have agreed to be bound by UNCLOS are automatically members of the Authority. The Authority is comprised of three bodies: the Assembly, the Council, and the Secretariat.

The AssemblyThe Assembly acts as a legislative organ in which each member nation has one representative. Of the many powers and responsibilities entrusted to the Assembly, one of the most important is the power to decide how revenues derived from deep seabed mining will be distributed. Other powers include the power to set policy regarding activities in the Area and oversight of its management.

The CouncilThe Council is a body comprised of 36 persons who represent various members of the Authority itself (the nations bound by the treaty). Members of the Council are elected by the Assembly and serve for a term of four years. The Council acts as the executive branch of the Authority and has the power of establishing the specific policies to be pursued by the Authority.

Other powers of the Council include establishing subsidiary agencies (as needed) to carry out the functions of the Council, approve or reject work plans related to the Area, oversee the collection of payments made to the Authority, and institute proceedings against a member nation in the Seabed Disputes Chamber ( International Tribunal for the Law of the Sea)

The SecretariatThe Secretariat of the Authority is comprised of the Secretary-General and his or her staff. The Secretary General is elected for a term of four years. Nominations for Secretary-General are made by the Council and voted on by the Assembly. The Secretary-General serves as the chief administrative officer of the Authority and is required to make an annual report to the Assembly on the work of the Authority.

Commission on the Limits of the Continental Shelf The Commission on the Limits of the Continental Shelf was created to implement Article 76 of the treaty, which is the article which allows for a nation to extend sovereignty over a portion of the continental shelf beyond the limits of the EEZ. The Commission is comprised of 21 members who are specialists in the fields of geology, geophysics, or hydrography and are elected by the Nations Parties to the Convention. Members of the Commission are charged with evaluating data submitted by coastal nation requesting an extension of sovereignty over an extended portion of their naturally occurring continental shelf. The Commission was established and derives its authority from Annex II of the Convention.

International Tribunal for the Law of the SeaAnnex VI of UNCLOS establishes the International Tribunal for the Law of the Sea. The Tribunal is comprised of 21 members, no two of which may be from the same member nation. Members of the Tribunal serve for a period of nine years, after which they are eligible for reelection to the Tribunal.

The Tribunal has formed a number of Chambers including the Chamber of Summary Procedure, the Chamber for Fisheries Disputed, the Chamber for Marine Environment Disputes, and the Chamber for Maritime Delimitation Disputes. The Tribunal is also the home of the Seabed Disputes Chamber, which is responsible for adjudicating disputes pursuant to Part XI, Section 5 of UNCLOS, which governs settlements of disputes that arise from deep seabed activities.

The EnterpriseArticle 170 calls for the formation of an agency called "the Enterprise." The purpose of the Enterprise is to coordinate the exploration and exploitation of resources in the area. Annex IV of the treaty details the composition and governance of the Enterprise, however, since deep seabed mining has yet to start, the Enterprise has never been called into action.

Hugo Grotius

Father of International Law responsible for the concept of ―freedom of the seas‖

―No part of the sea may be regarded as pertaining to the domain of any given nation.‖

Western civilization became increasingly dependent upon the use of the sea for:

• Trade• Transportation• Communication

A 12-mile fishing zone claimed byImperial Russia in the early 1900s.

After the Law of the Sea Conference in 1978, most maritime nations adopted a 12-mile territorial sea zone.

The United States predicated final acceptance of this 12 mile limit only if the law allowed for unimpeded passage through, over, and under international straits overlapped by the12 mile limit.

200NM

24NM

12NM

Zone

Territorial Sea

CONTINENTAL SHELF

Sovereign rights for exploring and exploiting non-living Resources of sea-bed and subsoil, plus sedentary species

EXCLUSIVE ECONOMIC &SELF DEFENSE ZONE

Sovereign rights for exploring, exploiting,and managing living and non-living Resources of the water, sea-bed, and subsoil.

Contiguous

HIGH SEAS

THEAREA

Common Heritage of mankind

Sea Level

SHELF

UPPER SLOPE

PLATEAU OR

TERRACE LOWERSLOPE RISE

DEEPOCEAN

TE

RR

ITO

RIA

L S

EA

B

AS

EL

INE

The basic principles of the international law of the sea that have evolved over the centuries are:

• High seas• Territorial sea• Special contiguous zones

High Seas

The concept of freedom of the high seas contends that no nation may restrict any areas or resources to its exclusive use or sovereignty.

All parts of the sea that are not included in the territorial sea or in the internal waters of a state

High Seas

Territorial SeaThe concept of the territorial sea contends that coastal states have near-absolute sovereignty over a narrow band of waters adjacent to their coasts.

Special Contiguous Zones

The concept of special contiguous zones contends that special limited jurisdiction prevails, such as in the straits and channels, and where neither the rules of the high seas nor territorial seas pertain.

UN Law of the Sea Conferences havemet a number of times since 1973.

United NationsGeneral Assembly

The stated purpose of the Law of the Sea Conferences has been ―to develop rules for peaceful use of the seabed beyond the continental shelf to the entire spectrum of ocean uses.‖

The UN recognized wide disagreement between developed nations and underdeveloped nations.

Underdeveloped States

Industrialized States

The basic issues at the conference were:

• The breadth of the territorial sea• Passage through straits• Fisheries• The seabed• Marine pollution• Scientific research

Continental ShelfOcean Surface

Continental Slope

Abyssal Plain

Sediment Base

Ocean FloorContinental

Rise

Over the years some conventions have been agreed upon, but no global agreement covering the many itemson the agenda has yet been reached.

Four possibleadverse impacts of international legal rules on the Navy’s mission include:

1. Limited mobility2. Vulnerability to

surveillance3. Vulnerability

tointerdiction

4. Limitations on oceanographic and intelligence-gathering activities

Limited Mobility—Restrictions on passage increase reaction time to

troubled areas.

Vulnerability to Surveillance—Requiring warships to use designated sea lanes increases surveillance.

Vulnerability to Interdiction—If the narrow sea-lanes were in a strait, mining of that area or attack by enemy naval and air forces would be much simpler than if a broad sea area were involved.

Legal developments might impose limitations on oceanographic and intelligence activities within the 200-mile zones.

The maximum size of the territorialsea is 12 nautical miles.

The right of vessels of one nation to navigate peacefully through the territorial waters of another nation

Innocent Passage

Oil Tanker

Passage through a territorial sea must be continuous and expeditious.

Stopping and anchoring is allowed only to provide assistance to persons, ships, or aircraft in danger or distress.

A littoral (coastal) state must not hinder innocent passage.

A foreign ship in passage through territorial seas must comply with and observe rules concerning:

• The safety of traffic and protection of channels and buoys

• Pollution of the waters

• Conservation of the living resources of the sea

• The rights of fishing and hunting

• Hydrographic surveys

• Display of the ship’s colors and salutes as defined by coastal state

Submarines and other underwater vehicles must navigate on the surface unless the coastal nation waives the requirement.

Aircraft, including naval aircraft, must request overflight permission overa territorial sea.

Straits and Archipelagoes

The 1994 Law of the Sea Conventionguarantees passage for all

ships and aircraft through, under, and over straits and archipelagoes for international navigation.

Java

PhilippineSea

South China Sea

Indian Ocean

Pacific Ocean

Laos

Malaysia

Indonesia

Australia

PhilippinesVietnam

Thailand

If restrictions on passage through straits were imposed, access to and from the

• Baltic• Mediterranean• Persian Gulf and Red Sea

could be severely restricted.

DanishStraits

Kattegat

Skagerak

Gibraltar

Strait of Gibraltar

Persian Gulf and the Red Sea

Entry to semi-enclosed sea areas such as the:

• Caribbean• Sea of Japan

could also be affected adversely.

Sea ofJapan

East China Sea

North Pacific Ocean

Java

PhilippineSea

South China Sea

Indian Ocean

Pacific Ocean

Laos

Malaysia

Indonesia

Australia

PhilippinesVietnam

Thailand

The U.S. backs the right of―archipelagic sea lanes passage,‖ either on routes designated by the nation or on the routes normally used for safe international navigation.

North Pacific Ocean

CANADA

MEXICO

Los Angeles

Miami

Anchorage

New York

Seattle

WASHINGTON, D.C.

Houston

HawaiianIslands

The Philippines is an archipelagic nation made up of 7,107 islands spanning 1,145 miles north to south.

Archipelagic Nation

ArchipelagicNation

PHILIPPINES

Much controversy exists over where internal waters of bays and gulfs end and where territorial seas begin.

Atlantic Ocean

Gulf of Mexico

A gulf is larger than a bay and extends deeper into the land.

Mediterranean Sea

Gulf of Sidra

If the entrance to a bay or gulf is 24 miles or less in width,it is considered internal waters and not territorial sea.

The UN has three basic elements for determining whether bays and gulfs are considered internal waters:1. An effective claim to sovereignty

bya national government

2. A continuous exercise of the authority claimed

3. Acquiescence by other nations

Libya was unsuccessful when it tried to claim the Gulf of Sidra as internal waters.

Gulf ofSidra

Mediterranean Sea

North Atlantic Ocean

Beaufort Sea

United States

Hudson Bay

Canada

Canada has long claimed Hudson Bay, with an entrance 50 miles wide, butmany countries, including the U.S. do not recognize this claim.

Bay of FundyThe British claimed this bay with a 65–mile entrance, as Canadian watersin 1852, but an international commission declared the claim to be invalid.

Africa

North America

Indian Ocean

Atlantic Ocean

Australia

Persian Gulf

Cape of Good Hope

Some Third World states proposed

to declare an entire ocean, like the Indian, as a ―zone of peace and security‖ from which all warships would be barred.

Gulf ofSidraAsia

San FrancisocoBay

Pacific Ocean

HudsonBay

Gulf of Mexico

Europe

South America

Such curtailments would severely limit the Navy’s capability to carryout strategic deterrence, projection ofpower, and naval presence missions.

Rivers that lie entirely within onecountry are considered internal waters.

National rivers - internal waters

Waters that lie entirely within oneCountry

Internal Waters

International rivers — international waters

If an international river is not navigable—the territorial boundarylies in the geographic center of the river.

If an international river is navigable—the center of the deepest channel is used to mark the boundary and is called the thalweg line.

International rivers are open tonavigation by all ships.

LakeManitoba

Canada

Lakes entirely within the boundaries of one country are the exclusive property of that country.

UnitedStates

Canada

The Great Lakes are subject to agreementsbetween the United States and Canada.

Panama Canal

Passage through man-made canals is controlled by agreement of the countries concerned.

In peacetime canals are open to the use of all nations’ ships, subject to

a toll for the transit service.

What percent of the world’s surface is considered high seas, free for the entire world to use in its commerce?

What percent of the world’s surface is considered high seas, free for the entire world to use in its commerce?

71 percent

Convention on Law of the Sea, 1994

Law of the Sea Legal Regions

Economic Zone

The region extending beyond the 12-mileterritorial sea to about 200 miles out

Nations now claim exclusive jurisdiction over living and nonliving resources within 200 miles of their coasts.

Lobster Boats

Factory Ship

Protection of Fishing Rights (most legal disputes since W.W. II)

Continental ShelfOcean Surface

Continental Slope

Abyssal Plain

Sediment Base


Rise

The part of a continent that issubmerged in relatively shallow sea

Continental Shelf

Nations want to assert their rights for exploration and exploitation of oil and minerals in the seabed.

Continental Shelf as defined by

Geneva Convention in 1964

The seabed and subsoil of the submarine areas adjacent to the coast, but beyond the territorial sea, to a depth of 200 meters (656 feet), or beyond to where the depth of the superjacent waters allows exploitation of the natural resources

In excess of 100 billion barrels of oillie under the U.S. continental shelf.

The U.S. continental shelf, which extends 120 miles out, contains vast quantities of ores.

Countries with continental shelves are in various stages of exploration and exploitation.

Continental Shelf Convention specifies that a safety zone must be established around oil rigs up to a distance of 500 meters, for protection.

The U.S. has proposed that the deep seabeds not be subject to any kind of claim by any state, but governed by international law.

The law of the sea is today in a stateof flux and development.

The U.S. must take the lead in defending existing international legal rights and argue against any attempts to impose restrictions or bans in the following areas:

The oceans must become a common area of understanding rather than an area of discord, if few are to advance our level of civilization.

Q.1. How has international law of thesea evolved over the centuries?

Q.1. How has international law of thesea evolved over the centuries?

A.1. From both custom and treaty

Q.2. Who was Hugo Grotius?

Q.2. Who was Hugo Grotius?

A.2. A 16th century Dutchpublicist, regarded as theFather of International Law

Q.3. Why was the territorial seahistorically placed at 3 miles?

Q.3. Why was the territorial seahistorically placed at 3 miles?

A.3. This wasthe approximaterange ofacannon shot from ashore battery in the 17th

century.

Q.4. What country wasthefirst to claim a 12-mile exclusive fishing zone?

Q.4. What country wasthefirst to claim a 12-mile exclusive fishing zone?

A.4. Imperial Russia

Q.5. What conditions are partofthe United States

acceptance of the 12-mile limit?

Q.5. What conditions are partofthe United States

acceptance of the 12-mile limit?

A.5. Acceptable law of the sea convention that provides

for unimpededpassage through, over, and under international straits overlapped by the

12-mile limit

Q.6. What are the mainprecepts of the international law of the sea that have evolved overthe centuries?

Q.6. What are the mainprecepts of the international law of the sea that have evolved overthe centuries?

6. a. Freedom of the high seasb. Territorial seac. Special contiguous zones

Q.7. What is the mainbasis regarding the Law of the Sea that was stated by

Hugo Grotius?

Q.7. What is the mainbasis regarding the Law of the Sea that was stated by

Hugo Grotius?

A.7. Freedom of theseas

Q.8. What are the fournegative impacts that international legal rules and developmentsmay have on Navy missions?


8. a. Limit the mobility of forcesb. Increase the vulnerability of

ships tosurveillance

c. Increase thevulnerability ofships to interdiction


A.8. d. Imposelimitations on oceanographic and intelligence gathering activities

Q.9. What is ―innocentpassage?‖

Q.9. What is ―innocentpassage?‖

A.9. The right of vessels ofone nation to navigatepeacefully through the

territorial waters of another nation

Q.10. What are some of therules that a foreign vessel must observe when passingthrough the territorial watersof a coastal state?

Q.10. What are some of therules that a foreign vessel must observe when passingthrough the territorial watersof a coastal state?

10. Rules concerning:a. Safety of traffic and

protection ofchannels and channel buoys

b. Pollution of thewaters

10. Rules concerning:

c. Conservation ofthe living resources of thesea

d. Rights of fishing andhunting

e. Hydrographicsurveys

f. Display of theship’s national colors and

salutes as prescribed by the coastal state

Q.11. What are the rules regarding submarine passage through territorial waters?

Q.11. What are the rules regarding submarine passage through territorial waters?

A.11. The submarine must transit aterritorial sea while surfaced.

Q.12. What are the rulesregarding aircraft overflight of territorial water?

Q.12. What are the rulesregarding aircraft overflight of territorial water?

A.12. Permission must be requestedand granted prior toflight.

Q.13. What is the difference betweena gulf and a bay?

Q.13. What is the difference betweena gulf and a bay?

A.13. A gulf is larger than abay and extends deeper into

the land.

Q.14. What is the established convention on the width of the entrance of a bay for itto be considered internal?

Q.14. What is the established convention on the width of the entrance of a bay for itto be considered internal?

A.14. The entrance should be24

miles or less.

Q.15. What are the three basic elements required to exist by the United Nations before a nation canclaim a gulf or bay as internal waters?


A.15. a. An effectiveclaim to sovereignty by a national government

b. A continuous exercise of theauthority claimed


A.15. c. Acquiescence by othernations

Q.16. What ocean is involvedin the proposal to make

it a ―zone of peace andsecurity‖ from which all warships would be barred?

Q.16. What ocean is involvedin the proposal to make

it a ―zone of peace andsecurity‖ from which all warships would be barred?

A.16. The Indian Ocean

Q.17. What is a national river?

Q.17. What is a national river?

A.17. Rivers that lie entirelywithin one country and are considered internal waters

Q.18. Name some of the nationalrivers.

Q.18. Name some of the nationalrivers.

A.18. Potomac, Mississippi, Thames, Rhone

Q.19. What constitutes aninternational river?

Q.19. What constitutes aninternational river?

A.19. A river that forms a boundary between two ormore countries or thatpasses through the territory of one state and serves as a

line of communication foran interior state.

Q.20. What are the rules regardingtransit on international rivers?

Q.20. What are the rules regardingtransit on international rivers?

A.20. They are open tonavigation by all ships justas on the high seas.

Q.21. What country has a treatywith the United States to

set the boundaries in theGreat Lakes?

Q.21. What country has a treatywith the United States to

set the boundaries in theGreat Lakes?

A.21. Canada

Q.22. How is passage controlledthrough man made canals?

Q.22. How is passage controlledthrough man made canals?

A.22. By agreement of thecountries most concerned

Q.23. What is the definition of―high

seas?‖

Q.23. What is the definition of ―highseas?‖

A.23. All parts of the sea that are not included in the territorial sea or in the internal waters of a state

Q.24. What percentage of theworld’s

surface is classified as the―high seas?‖

Q.24. What percentage of theworld’s

surface is classified as the―high seas?‖

A.24. Over 70 percent

Q.25. What does the freedom of thehigh seas include?

Q.25. What does the freedom of thehigh seas include?

25. Freedom to:a. Conduct maritime commerceb. Navigatec. Fishd. Lay submarine cables and

pipelinese. Fly overf. Undertake scientific

research

Q.26. What is the limitpresently claimed by countries for living andnonliving resources in the seas?

Q.26. What is the limitpresently claimed by countries for living andnonliving resources in the seas?

A.26. 200 miles

Q.27. What is the area called that extends beyond the 12-mile territorial sea to about200 miles?

Q.27. What is the area called that extends beyond the 12-mile territorial sea to about200 miles?

A.27. Economic zone

Q.28. What does the question of―residuum of authority‖ mean?

Q.28. What does the question of―residuum of authority‖ mean?

A.28. With whom does the jurisdiction in the 12- to

200- mile economiczone rest - in the coastal state, or the internationalcommunity as a whole?

Q.29. What is the definition of―continental shelf?‖

Q.29. What is the definition of―continental shelf?‖

A.29. The seabed and subsoil of the submarine areas adjacent to the coast, but beyond the territorial sea, to a depth of 200 meters (656 feet) or beyond to where the depth of the superjacent waters allows exploitation of the natural resources

Q.30. What is the size of thesafety zone established around structures in the sea,such as oil rigs?

Q.30. What is the size of thesafety zone established around structures in the sea,such as oil rigs?

A.30. 500 meters

A nation having at least one shorelinebordering on international waters

Littoral (coastal) State

Agreement or consent by silence orwithout objection

Acquiescence

The geographic center of the deepest channel and forms the territorial boundary between nations

Thalweg

The right to explore seabeds and useor their natural resources for profit

Exploitation Rights

Freedom of the high seas includes freedom to:

• Conduct maritime commerce

• Navigate

• Fish

• Lay submarine cablesand pipelines

• Fly over

Ronald H. Brown (R104)

• Undertake scientific research

The world community of states has seen fit to establish a body of maritime law to ensure that freedom of the seas will apply equally to all.

Every state has the right to grant its nationality to ships and has the right to sail them under its flag on the high seas.

Current problem areas concerning the law of the sea include:

• Economic zones• Self-defense rules• Exploitation of continental shelf

and seabeds• Fisheries

Underdeveloped coastal countries view the 200-nautical-mile exclusive economic zone as an answer to their economic problems.

Residuum of Authorityasks this question:

With whom does the jurisdiction in the 12-to-200-mile economic zone rest—in the coastal state, or the international community as a whole?

Beside navigational constraints on naval and merchant shipping, strict control of the economic zone could hinder naval scientific and oceanographic research.

In a legal sense, the territorial sea isnot a part of the high seas.

A coastal state exercises exclusive jurisdiction—sovereignty—over its territorial seas.

A sovereign state under the law can safeguard its existence both in its territorial seas and on the high seas.

Freedom to fish on the high seas has beena part of customary international law.

Long-range fishing fleets with factory ships serving as mother ships have depleted fish stocks of the world oceans.

Conservation has become a fundamental concern for all nations of the world.

Fishing is a valuable economic resource and countries, both developed and developing, are demanding a share of the world’s fisheries.

Fair and intelligent agreements are necessary to satisfy the coastal states and the distant-water fishing nations.

Lying above or upon something else

Superjacent

The territorial sea is an important area to us because of our capacity to:

• Exploit the seabeds• Engage in advanced scientific

research• Fish• Conduct ocean commerce• Regulate pollution• Conserve natural resources• Conduct peaceful naval

operations

• Navigation through or overflightof an economic zone

• Innocent passage of warships through territorial waters, or advance notice for same

• Submerged transit or overflightof straits

• Entrance of naval vessels intosemi-enclosed areas

The law of the sea now recognizes that a coastal state exercises sovereign rights over its continental shelf for exploring and exploiting its natural resources.

Continental Shelf Ocean Surface

Continental Slope

Abyssal Plain

Sediment Base


Rise

The right of exploration is limited, however in that there can be no unjustifiable interference with the freedom of navigation, fishing, or scientific research.