1.

History of the Law of the Sea

• Freedom of the seas
• Roman law: res nullius, res communis
• The concept of the maritime belt, territorial waters or territorial sea
• Extended claims for the territorial sea

2. Three UN Conferences on the Law of the Sea

1. UNCLOS I: 1958, Geneva
(1) Convention on the Territorial Sea and Contiguous Zone;
(2) Convention on the High Seas;
(3) Convention on the Continental Shelf; and
(4) Convention on Fishing and Conversation of the Living Resources of the High
Seas.
2. UNCLOS II : 1960, Geneva
3. UNCLOS III: from 1973 to 1982

3. UNCLOS III: from 1973 to 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.

4. Legal Significance of the UNCLOS 198Legal 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

WEEK 1
Internal Waters, Ports and Ships
Definitions Internal water are those waters which lie on the landward side of
the baseline from which the territorial sea and other maritime zone are
measured. (Law of sea convention art 8) Usually is between islands in one
country
Position of internal water : The baseline>Shore to shore>Integral part of coastal
state

Example of internal waters:

• the waters north of Halmahera
• Paradise Bay and returned to the south via the Seram Sea
• BandaDefinition Of Ships
• Timor and ends at the Straits of Lombok.

Law regulating
Internal waters is under the regulation of the UNCLOS (UNITED NATION
CONVENTION LAW OF THE SEA) article 8
Waters on the landward side of the baseline of the territorial sea form part of
internal water of the state

Issues relating internal waters: Industrialized fishing, Oil pollution from

traditional transport, The rights and other legitimate interests

Definition Of Ships
• is a large vessel that floats on water. Ships are generally distinguished
from boats based on size and passenger capacity.
• Ships may be found on lakes, seas, and rivers and they allow for a variety
of activities, such as the transport of people or goods, fishing,
entertainment, public safety, and warfare.

Types of ships
based on propulsion : Sailing Ship, Motorship
based on their use : - Commercial vessels - Naval vessels - Fishing vessels
- Inland and coastal boats - Other
based on their use:
– Military ships: warships, submarines, and support & auxiliary
vessels.
– Commercial vessels: cargo ships, passenger ships, special-purpose
ships.
 – Fishing vessels: the criteria, by architecture, the type of fish they
catch, the fishing method used, geographical origin, and technical
features such as rigging.
– Pleasure craft: for personal purposes

A flag of convenience country

• Every state has the right to sail ships flying its flight on the high seas
(art. 90 of UNCLOS)
• Ships have the nationality of the state whose flag they are entitled to fly
(art. 91)
• Ships shall sail under the flag of one state only --- subject to its
exclusive jurisdiction on the high seas (art. 92)

“Phantom Ships”
• Literally is not type of ship
• Is a situation where a foreign ship committed a violation in another state
territory sea or high seas. Ex. PIRACY

Law imposed on the ships

Warships (art. 95), Government non-commercial service (art. 96) > complete
immunity from the jurisdiction of any state other than the flag state

Security and Order on the Ships

• Ships security had been ruled under UNCLOS 1982 such as: All state are
responsibly or have a liability to apprehend pirate & Only military or
warship can seizure the pirate.
• Ship are not allowed to transport slave.

WEEK 3-4
TERRITORIAL SEA & CONTIGOUS ZONE
Jurisdictional Zones in the Law of the Sea: Internal Waters, Territorial Sea,
Contiguous Zone, Exclusive Economic Zone, Continental Shelf, High Seas, The
International Seabed

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, describe as the
territorial sea.”
• Breadth (Art. 3): 12 nautical miles from the baselines
• Territorial Sea: full sovereignty except for rights of innocent passage

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 Baseline
• 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….

The Rights of Coastal States

• Fish in Internal Waters/Territorial
Sea: Exclusive Rights for the Coast State
• Navigation:
- Internal Waters: exclusive Right of Coastal State to define rights for
navigation
-Territorial Sea: right for innocent passage of foreign ships; Passage is
innocent so long as it is not prejudicial to the peace, good order or
security of the coastal state (Art. 19)
• Oil/gas/mineral resources in Internal Waters/Territorial Sea: Exclusive
Rights for Exploitation
• Cables and pipelines in Internal Waters/Territorial Sea: Exclusive
Jurisdiction of Coastal State
 • Renewable energies and installations in Internal Waters/Territorial Sea:
Exclusive Right of Coastal State to build installations and artificial
islands

AnglAnglo-Norwegian Fisheries case (1951) IICJ 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.

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.

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 off ‘‘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.

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).

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:
(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…
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]
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 Zone
Contiguous Zone (up to 24 seamiles) : territory outside the territorial sea
where coastal states may exercise the control necessary to punish or prevent
infringements of its customs, fiscal, immigration or sanitary laws and regulation
within its territory or territorial sea
Within the contiguous zone, the coastal state is invested with the power
- to prevent infringement of its customs, fiscal, immigration, or sanitary laws
and regulations within its territory or territorial sea (Article 33, Subparagraph
1(a));
-to punish infringement of the above laws and regulations committed within its
territory or territorial sea (Article 33, Subparagraph 1(b))

WEEK 5-7
Exclusive Economic Zone Continental Shelf High Seas
Exclusive Economic Zone
Exclusive Economic Zone/Continental Shelf
- Coastal States can establish a 200-nautical-mile Exclusive Economic Zone
(EEZ)/a claim for a continental shelf is not necessary
- The Coastal state have the right for the use of the living and non-living natural
resources, to use the EEZ and the continental shelf for other economic
purposes and the right to construct, authorize and regulate the construction of
artificial islands and certain installations and structures
- in EEZs , all states have freedom of navigation and overflight , as well as
freedom to lay submarine cables and pipelines

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

Exclusive Economic Zone

-Special Management System (Art. 61/ Art. 62)
-Freedom of navigation (Art. 58 (1), Art. 87)
-Exclusive Rights for Exploitation, but no right of exploitation if conflicting
with recognised sea lanes
-All States enjoy freedom of laying submarine cables and pipelines, but
delineation of the course of the laying of a pipeline is subject of the consent of
the coastal state (Art. 79 (3))
-Coastal state may lay down conditions for cables and pipelines entering its
territorial sea
-To build Installations and artificial islands for economic use (including
renewable resources) (Art. 60), but the right for other states to build
installation necessary for pipelines and no right to build installations and
artificial islands if conflicting with recognised sea lanes

Rights and duties of the coastal State[Art 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. 58

1. 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,…
2. 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 State Art. 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.
3. Coastal State penalties for violations of fisheries laws and regulations…
may not include imprisonment.

Islands and EEZ

“rocks which can not sustain human habitation or economic life of their own
shall have no exclusive economic zone or continental shelf” (Art. 123 (3))

Right of transit passage in straits used for international navigation

• Applies generally to all straits connecting high seas or EEZs with other
areas of high seas or EEZs which are used for international navigation
(Art. 37)
• Ships shall
– proceed without delay
– refrain from any force or threat of force against the coast state
– pass the strait in the normal mode of continuous and expeditious
transit (Art. 39)
 Continental Shelf
• Legal Definition of Continental Shelf (Art. 76)
• Continental Shelf extends to:
– 200 miles from the baselines or
– to the outer edge of the continental margin … whichever is further
• 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.

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

• The continental shelf of a coastal State comprises the sea-bed and
subsoil of the sub-marine areas that extend beyond its territorial sea (1)
throughout the natural prolongation of its land territory to the outer
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 and Maximum Limit of CS

• Art.76(1): 200 nautical miles from the base the minimum limit of the legal
shelf for all coastal states regardless extent of their natural shelf.
• 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. 77:
• 1 …[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”.

Case Law on CS
• 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.]

Case law on CS
• 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.”
 Case law on CS
• 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’]

The UNCLOS 1982 [Art. 83]

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].

Settlement of disputes (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.

High Seas
• Waters beyond territorial sea which is free for use by all.
• “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.” (Art.86)
• Flag State jurisdiction
• Exceptions to the flag state jurisdiction : Visit,Piracy, Hot
pursuit, Broadcasting, Slavery, Drugs trafficking

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

The general rules

• 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

Piracy
• 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.”

Right of hot pursuit (Art.111)

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

Case Law on Hot Pursuit

• The M//V Saiiga (No.. 2) case [ITLOS,, case No. 2,1999]
 • Held: “The conditions for the exercise of the right 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.

Case Law on Hot Pursuit

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

Case Law on Hot Pursuit

• 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 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.

1994 New York Implementation Agreement [Amending Part XI]

• The four major Amendments made are:
(1) Enterprise shall conduct its initial deep sea-bed operations through
joint ventures with private corporations from developed countries.
(2) Must act in accordance with “sound commercial principles”.
(3) No setting of production levels to protect land based producers.
(4) No transfer of technology to developing countries.