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Published by Enhelion, 2019-11-24 05:21:55

Module_11 (Pubic International Law)

Module_11 (Pubic International Law)



Law of the Sea is a body of international law governing the rights and duties of States with
respect to their maritime obligations. It governs such matters as navigational rights, sea
mineral claims, and coastal waters jurisdiction. It is the public law counterpart to admiralty
law (also known as maritime law), which concerns private maritime issues, such as
the carriage of goods by sea, rights of salvage, collisions, and marine insurance. Law of the
sea deals with three particular aspects: Internal waters, Territorial Sea and High Seas.

United Nations Conference on the Law of the Sea, 1958 (UNCLOS I) was the first
comprehensive international legislation on the Law of the Sea. Prompted by the desire to
settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the
sea and aware of the historic significance of this Convention as an important contribution to
the maintenance of peace, justice and progress for all peoples of the world.
Some other Conventions and their member States are-

Convention on Territorial Sea & Contiguous Zone- 46 States
The Convention on the High Seas- 57 States
The Convention on Fishing & Conservation of the Living Resources of the High Seas- 86
The Convention on the Continental Shelf- 54 States
UNCLOS I (1958) - dealt with Territorial Sea and High Seas

UNCLOS II (1960) - dealt with breadth of Territorial Sea and fishery limits

UNCLOS III (1982) – Jurisdiction over the EEZ, Continental Shelf, Settlement of disputes
and delimitation of Sea.

UNCLOS 1982: Contains 320 Articles & 9 Annexes. It was adopted by 130 votes with 17
abstentions. It codified several principles of customary international law. The Convention set
the limits of various areas defined from the baselines.

Territorial waters include Internal waters and Territorial sea. A State has complete
sovereignty in Internal waters and they are from the baseline land-wards. In Territorial sea,
the State has complete control but there exists a right of innocent passage of foreign ships. It
is from the baseline sea-wards.

• Internal Waters consist of ports, harbors, rivers, lakes and canals and all water on the
landward side of the baselines.

• Internal Waters find limited mention in 1958 as well as 1982 Conventions; the
relevant rules are to be found in the customary international law.

• A coastal state is sovereign with respect to its internal waters.
• The coastal state may apply and enforce its laws in full against foreign merchant ships

in its internal waters.

• Although the judicial authority of the flag state may also act where crimes have
occurred on board ship.

• Foreign merchant ship in Internal waters is subject to local jurisdiction.
• Disciplinary issues that do not concern the peace within the territory of the coastal

State is left to the authorities of the flag State.
• In case of a war ship, authorization of the captain of the flag State is needed before the

Coastal State may exercise its jurisdiction.
The width of the Territorial Sea-

• Originally, the ‘cannon-shot’ rule defined the width required in terms of the range of
shore-based artillery.

• Later, this was transmuted into the 3-mile rule.
• Art.3 of the 1982 Convention notes that all states have the right to establish the

breadth of the territorial sea up to a limit not exceeding 12 nautical miles from the
The juridical nature of the Territorial Sea-
• The territorial sea appertains to the territorial sovereignty of the coastal state subject
to a right of innocent passage by foreign vessels.
• Extensive jurisdictional control of the coastal state over its territorial sea, having
regard to the relevant rules of international law.
Rights of the Coastal State over the Territorial Sea-
1.) An exclusive right to fish and to exploit the resources of the sea-bed and subsoil of the
territorial sea.
2.) Exclusive enjoyment of the airspace above the territorial sea.
3.) The coastal state’s ships have the exclusive right to transport goods and passengers from
one part of the coastal state to another.
4.) If the coastal state is neutral in a time of war, belligerent states may not engage in combat
or capture merchant ships, in the coastal state’s territorial sea.
5.) The coastal state may enact regulations concerning navigation, health, custom duties and
immigration, which foreign ships must obey.
6.) The coastal state has certain powers of arrest over merchant ships exercising a right of
innocent passage.

• The right of innocent passage (as distinct from warships) to pass unhindered through
the territorial sea of a coast is an accepted principle in customary international law,
the sovereignty of the coastal state notwithstanding.
• Art.17 of the 1982 Convention lays down: ‘ships of all states, whether coastal or land-
locked, enjoy the right of innocent passage through the territorial sea’.
• Passage is defined as navigation through the Territorial Sea for the purpose of
crossing that sea without entering Internal waters.
• Passage may include incidental and temporary stoppage, but only if they are
incidental to ordinary navigation or necessitated by distress or force majeure.
• If it is prejudicial to the peace, good order or security of the coastal State and if they
do not observe such laws and regulations as the coastal State may make.

“All ships including warships, regardless of cargo or armament, enjoy the right of innocent
passage through the territorial sea in accordance with international law, for which neither
prior notification nor authorization is required.”
-‘Uniform Interpretation of the Rules of International Law Governing Innocent Passage’
Joint Report of the US & the USSR (Sept-1989)

• In May 1946, an Albanian battery while passing through the Corfu Channel fired at 2
British cruisers.

• UK protested leading to diplomatic exchanges.
• Albanian Govt. asserted that foreign warships & merchant vessels had no right to pass

through Albanian territorial waters without prior permission.
• In October,1946 the UK sent 2 cruisers & 2 destroyers through the Corfu Channel.
The main question was: Has the United Kingdom under international law violated the
sovereignty of the Albanian People’s Republic by reason of the acts of the Royal Navy in
Albanian waters on the 22nd Oct and if this was consistent with the principle of innocent
The Court held that:
• The warships were neither in combat formation nor were there any soldiers on board.

The guns were not loaded and were trained ‘fore & aft’ which is their normal position
at sea during peace time.

• The intention was to test Albania’s attitude and at the same time demonstrate such
force that she would abstain from firing again on passing ships.

• The Court is unable to characterize these measures taken by the UK authorities as a
violation of Albania’s sovereignty.

Because of this case, Innocent passage, along with transit passage, was integrated into the
1982 United Nations Convention on the Law of the Sea (UNCLOS), which superseded the
Convention on the Territorial Sea and the Contiguous Zone.
Article 5 states: The rules for measuring the Territorial Sea rest on the concept of ‘baseline’.
The normal base line from which the territorial sea is measured is the low water line (the line
on the shore reached by the sea at low tide) along the coast as marked on large-scale charts
officially recognized by the coastal State.
Article 7: Traditional methods might not be suitable in these cases: coastline is deeply
indented, bays cutting into the coastlines, numerous islands running parallel to the coasts.
Anglo-Norwegian Fisheries Case

• A Norwegian Decree of 1935 delimited Norway’s “Fishery Zone” (territorial sea).
• The Preamble of this Decree justified such delimitation using straight baselines

catering the vital interests of the coastal state.
• By using this method, Norway enclosed waters within its territorial sea that would

have been high seas, and hence open to foreign fishing.
Methods contemplated to effect the application of the low-water mark rule:

1. Trace parallele- drawing the outer-limit of the belt of territorial waters by following
the coast in all its sinuosities.

2. The arcs of circles method- An arc of 12nm to be drawn towards the given position at
sea from the land.

3. Straight baseline method- In localities where the coastline is deeply indented and cut
into, or if there is a fringe of islands along the coast in its immediate vicinity, the
method of straight baselines joining appropriate points may be employed in drawing
the baseline from which the breadth of the territorial sea is measured.

Therefore, the Court held:
• Delimitation of sea areas has an international aspect and not merely dependent upon
the will of the coastal states.

• However, the act of delimitation is also a unilateral act as only the coastal state is
competent to undertake it.

• Some considerations are inherent in the nature of the territorial sea- i.e. its
dependence on the land, the practical needs and local requirements.

• Geographical considerations i.e. close relationship between certain sea areas and the
land formations which divide or surround them.

Qatar v Bahrain

• The method of straight baselines, which is an exception to the normal rules for the
determination of baselines, may only be applied if a number of conditions are met.

• This method must be applied restrictively.

• Such conditions are primarily that either the coastline is deeply indented and cut into,
or that there is a fringe of islands along the coast in its immediate vicinity.


• Criminal jurisdiction can be exercised if the ‘consequences’ of crime extend to the
coastal state.

• If the crime is likely to disturb the ‘peace’ of the country or the good order of the
territorial sea.

• If the assistance of the local authorities has been requested by the master of the ship,
or by a diplomatic agent or consular office of the flag state.

• If such measures are necessary for the suppression of illicit traffic in narcotic drugs or
psychotropic substances.

• These are areas adjacent to the territorial seas and historically were considered as
part of the high seas.
• French writer Gidel propounded the theory of the Contiguous Zone as a means of
rationalizing the conflicting practice of states.
• Both the 1958 & 1982 Conventions provide for the Contiguous Zone.

Art.24 of the 1958 Convention on the Territorial Sea & Contiguous Zone:

1 In a zone of the high seas contiguous to its territorial sea, the coastal State may exercise the
control necessary to:

(a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations within
its territory or territorial sea;

(b) Punish infringement of the above regulations committed within its territory or
territorial sea.

2. The contiguous zone may not extend beyond 12 miles from which the breadth of the
territorial sea is measured. (Now it is 24 miles)

The basic legislations that a State covers in a contiguous zone: Customs, Sanitary and


An Exclusive Economic Zone (EEZ) is a concept adopted at the Third United Nations Conference on
the Law of the Sea (1982), whereby a coastal State assumes jurisdiction over the exploration and
exploitation of marine resources in its adjacent section of the continental shelf, taken to be a band
extending 200 miles from the shore.
PART V of the UNCLOS :-
Article 55:

Specific legal regime of the exclusive economic zone

The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to
the specific legal regime established in this Part, under which the rights and jurisdiction of the
coastal State and the rights and freedoms of other States are governed by the relevant
provisions of this Convention.

Article 57:

Breadth of the exclusive economic zone

The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured.

The 1982 Convention on the EEZ
• The zone is treated as an intermediate area of sea between the high seas and the
territorial sea with a distinct regime of its own.

• The regime accords the coastal state

(i) Sovereign rights of exploitation of zone resources and

(ii) Ancillary and other powers of exclusive jurisdiction, notably in respect of marine
research & control of pollution.

➢ Sovereign rights for the exploring and exploiting natural resources.
➢ The Coastal state may establish and use artificial islands, installations and structures
➢ The Coastal State shall have due regard to the rights and duties of other states.
➢ The Coastal State shall not interfere with the internationally lawful uses of the sea
related to these freedoms


• Laying of submarine cables and pipelines
• Navigation
• Freedom of overflight


• It is the natural prolongation of the continental landmass into the seas which are
covered with relatively a shallow layer of water.

• The Continental Shelves are rich in oil and gas resources and quite often are host to
extensive fishing grounds.

• The growth in technological capacity and the riches of the shelf called for the question
of jurisdiction.

• Technological potential to exploit the resources of the shelf.
• Need to establish a recognized a jurisdiction over such resources.
• Utilization or conservation of the resources of the sub-soil and sea bed of the
continental shelf depended upon cooperation from the shore.
• The shelf was an extension of the landmass of the coastal State & by extension evens
the resources.

• For reasons of security it would be necessary to utilize the resources.

The Measurement of the Continental Shelves

• Article 76 (1) of the 1982 Convention: The continental shelf of a coastal state
comprises the seabed and subsoil of the submarine areas that extend beyond its
territorial sea throughout the natural prolongation of its land territory to the outer edge
of the continental margin, or to a distance of 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured where the outer edge of
continental margin does not extend up to that distance.


Delimitation is an aspect of territorial sovereignty. Where other States are involved,
agreement is required.

• Article 15 of 1982 Convention: Where no agreement has been reached, neither state
may extend its territorial sea beyond the median line every point of which is
equidistant from the nearest point on the baselines from which the territorial sea is

Equidistance/Special Circumstances Rule

The fundamental norm under both customary and treaty law is that the delimitation had to be
in accordance with the ‘equitable principles’. Principle of Equity has to be applied talking
into account the special circumstances. This would justify delimitation other than the median
line in complying with the principles of ‘equity’.

The Anglo-French Continental Shelf Case: The Court on Article 6 of the 1958 Convention:
‘Art.6 gives particular expression to a general norm that, failing agreement, the boundary
between states abutting on the same continental shelf is to be determined on equitable


Article 125 of the 1982 Convention:

Freedom of the High Seas

• Right to access to and from the sea for the purpose of exercising the rights as provided
in the UNCLOS.

• The right to common heritage of mankind.

Freedom of Transit

• Use the territory of transit states
• Modalities may be agreed between the land-locked states and the transit state by


Legitimate Interests

• Transit state shall have the right to take all measures necessary to ensure the rights for
land-locked states nowhere infringes legitimate interests.


• Article 86 of the 1982 Convention: All parts of the sea that were not included in the
exclusive economic zone, in the territorial sea or in the internal waters of a state, or in
the archipelagic waters of an archipelagic state.

• Article 87- Freedom of the Seas includes- Navigation, scientific research, Over-flight,
Laying of cables and submarine pipelines,freedom to construct artificial islanda and
other installations, fishing


Flag State has jurisdiction over the ships on High Seas.

Article 91 of the 1982 Convention:

1.) Every State shall fix the conditions for the grant of its nationality to ships, for the
registration of ships in its territory, and for the rights to fly its flag. 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.

2.) Every State shall issue to ships to which it has granted the right to fly its flag
documents to that effect.


Flag State: Ships carry the nationality of the flag-state.

Stateless ships: Ships flying no flags or two or more flags cannot claim nationality.

Genuine link: there must be a genuine link between the state and the ship.

Naim Molvan v. Attorney General for Palestine: Where ship flying flags of more than one
State, it may be treated as a ship without nationality. Such ships may be boarded and seized
on the high seas.

Flags of Convenience (FoC): FoC is a business practice whereby a merchant ship is
registered in a country other than that of the ship’s owners, and the ship flies that country’s
civil ensign.

The Saiga Case (St. Vincent & the Grenadines v. Guinea, 1999):

• The Saiga was an oil tanker owned by a Cypriot company and formerly managed by a
Scottish Company.

• It was registered as a St. Vincent and Grenadines ship with a certificate of provisional
registration, which had expired on Sept.12, 1997.

• A permanent certificate was issued on Nov. 28, 1997.
• On Oct.27, 1997, Saiga supplied gas oil in the Guniean EEZ. They were arrested on

Oct.28 and not released till March of the next year.
The question before the International Tribunal for the law of the sea-

1.) In the absence of registration at the time of the supply of gas-oil, would the Saiga be
treated as stateless?

2.) If it is established that the Saiga was registered with St. Grenadines, does it establish the
requirement of “genuine link” as required by Art. 91 of the UNCLOS, 1982?

Whether the Saiga had the nationality of St. Vincent & the Grenadines at the time of arrest?

Each State has exclusive jurisdiction over granting nationality to ships. Article 91 codifies a
well-established rule of customary international law. St. Vincent & the Grenadines were to
fix the criterion under Merchant Shipping Act- had to issue documents in this regard.

Nationality of the ship is a question of fact: The Saiga was authorized to fly the Vincentian
Flag at the time of the incident. The documents on board and the seal contained the words
‘SAIGA KINGSTOWN’. Current charter part recorded the flag of the vessel as “Saint
Vincent & the Grenadines”.

The Tribunal concluded: It has not been established that the Vincentian Registration or
Nationality was extinguished in the period between the date on which the Provisional
Certificate was stated to expire & the date of issue of the Permanent certificate. The
consistent conduct of the state provides sufficient support. The purpose of a genuine link
between a ship and its flag state is to secure more effective implementation of the duties of
the flag state, and not to establish criteria by reference to which other States may challenge
the validity of the registration of ships in a flag State.

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