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Week 12 - Law of the Sea (LOS)

sea divided into 3 zones:
• internal waters
• territorial waters
• high seas

Sources

Custom
1958 Geneva Conventions (4)
UNCLOS II

Custom

Most LOS was developed as customary law.
Custom continues to play important role, regulating relations of states not parties to treaties & in filling in gaps in treaties

• certain coastal states claimed sovereignty over stretches of ocean during 15th-18th centuries
• Grotius – doctrine of ‘open seas'; seas as res communis
• claims to high seas discredited by mid-19th century after being contested by maritime powers – freedom of high seas established
• emergence of dual regime forming basis of the law of the sea today – certain sovereign rights enjoyed by coastal states over waters off coast (principle of contiguity) exist alongside freedom of high seas enjoyed by all states, coastal or not

1958 Geneva Conventions (UNCLOS I)

Territorial Sea & Contiguous Zone
• CIF 1964

Continental Shelf
• CIF 1964

High Seas
• CIF 1962
• reaffirms customary regime of high seas

Fishing & Conservation of Living Resources of High Seas
• CIF 1966

• binding if two states are parties to Geneva Conventions & not UNCLOS
• much of their content represents codification of customary IL – to that extent, binding on all parties, not just signatories

United Nations Convention on the Law of the Sea (UNCLOS II) (1982)

• 159 signatories
• CIF 1994 (after required 60 ratifications)
• slow ratification rate due to resistance to deep seabed regime – support reached after it was watered down in protocol)
• dispute between developed & developing nations
• comprehensive codification & progressive development of the law of the sea
• Canada has signed, not ratified (same with USA)

Territorial Sea

Waters landward of baselines are internal waters, subject to full sovereignty
Waters seaward of baselines constitute territorial sea.

Exceptions to Full Sovereignty Regime on Territorial Sea

Innocent Passage:
• 3rd party right of innocent passage through territorial sea: custom/Geneva/UNCLOS
• "innocent" difficult to define
• UNCLOS defines it as passage unprejudiced to peace, good order, security (15)
• non-innocent passage: anything aimed at interfering with coastal state or for purposes unrelated to passage (19)
• right can be suspended in emergency

Warships:
• many states require warships to gain consent before passage (note: bilateral transit treaties)
• at the time of Geneva/UNCLOS there was no customary basis for innocent passage by warships, but it may become custom
• disputes between Soviets & developing countries on one side, and western, developed countries on other re right of innocent passage for warships – Soviets came on board in 1989
• neither Geneva Convention nor UNCLOS expressly deals with warships – whether warships can be inferred depends on meaning of "ships"
• it is unclear whether innocent passage of warships would be a right or a privilege
• if right/privilege does exist, it could be suspended in emergency

Jurisdictional Immunity of Warships/State Vessels:
• warships & other state vessels enjoy general immunity from criminal & civil jurisdiction of coastal state – possible source of unwillingness to extend right of innocent passage of warships in territorial waters
• treated as ‘floating islands' of flag state

Jurisdictional Immunity of Merchant Ships:
• coastal state presumed not to have criminal or civil jurisdiction over merchant vessels engaged in innocent passage through territorial sea (custom/UNCLOS) unless:
• consequences of crime extend to state
• crime disturbs peace, good order, or safety of state
• shipmaster requests assistance (thus waiving immunity)
• state acts to suppress drug trafficking (potentially broad)
• civil liabilities incurred by vessel itself in course (or for purpose) of passage
• crime was committed in & ship is departing from internal waters

Baselines Delimiting Territorial Sea

Territorial sea measured seaward from baselines (inner limit of territorial belt)
Default baseline is the low-water mark along coast: custom/Geneva/UNCLOS. If coastline is rugged or fringed by islands:
• coastal state chooses appropriate method of drawing baselines for its geography
• baselines should not greatly depart from general direction/shape of coast
• must be a close geographical relationship between land formations & seas between them
• long-established peculiar economic interests may be relevant to the use of baselines to create territorial waters
• source – Anglo-Norwegian Fisheries Case (ICJ, 1951)/practice/Geneva/UNCLOS

In the case of islands:
• territorial seas can be measured around islands if not submerged at low tide: Geneva/UNCLOS
• territorial seas can be measured around submerged islands if within 12 nm of the coast: Geneva/UNCLOS
• or if permanent fixtures constructed thereupon (i.e. lighthouses)
• uninhabitable &/or economically exploitable not included

Harbour works can be considered part of coast for drawing baselines: UNCLOS

Bays cannot be closed using baselines if entrance exceeds 24 nm & if area of bay waters is greater than a semi-circle based on baseline across mouth: UNCLOS.
• does not apply to historic bays, internal waters established through historical use & acquiescence of other states: Fisheries Case

Canada applies default low-water baseline except:
• in the case of straight baselines off coasts of Labrador & Newfoundland, claiming straits as internal waters based on historic title
• after Nfld confederation, Gulf of St Lawrence declared an inland sea
• coastal British Columbia (with exception of the Queen Charlottes)
• Hudson's Bay
• high arctic archipelago

• maximum length of baselines is unsettled, except parties to UNCLOS bound by 24 nm

Breadth of Territorial Sea

• customary ‘cannon shot rule' – translated to 3 nm
• until late 50s/early 60s fishing zones limited to territorial waters
• developing countries persistent objectors (for economic reasons)
• for parties to Geneva Convention, unresolved (possibly 12 nm by now)
• for parties to UNCLOS, 12 nm

Canada possesses territorial sea of 12 nm, except in cases of deviation from low-water mark as prescribed by Oceans Act

International Straits

A connector between two high seas used for international navigation – need not be the only way of travelling between two high seas: Corfu Channel Case (ICJ, 1949).

All ships (including warships) enjoy right of innocent passage through international straits – cannot be interfered with or suspended by coastal states, even for security reasons: custom/Corfu Channel/Geneva.

Under UNCLOS:
(a) ships & aircraft may use international straits if passage continuous & expeditious (38)
(b) must confine activities solely to transit (39)
• if (a) and (b) coastal state cannot prevent, hamper or suspend passage
• enforcement measures for coastal state not provided

• removal of "innocence" & "enforcement" in UNCLOS strengthens right of passage
• USA, UK, & France assert that the UNCLOS regime is customary, but uncertain state practice elsewhere means content is in state of flux

Maritime Zones

Established to balance competing interests of coastal states (intent on extending power further seaward) & the international community (determined to protect freedom of the high seas).

Contiguous Zones (CZ)

Coastal states entitled to exercise certain limited forms of jurisdiction, although regime of the high seas still applies: custom/Geneva/UNCLOS.
CZs do not arise by operation of law – must be claimed

Inner limit of CZ = outer limit of territorial sea – outer limit is maximum allowed under IL (measured from baselines):
• 12 nm: Geneva
• 24 nm: UNCLOS

Coastal states permitted special rights of jurisdiction in CZ for functional purposes:
• fiscal/customs laws – smuggling: custom/Geneva/UNCLOS
• immigration – migrants: Geneva/UNCLOS
• sanitary laws – coastal pollution: Geneva/UNCLOS
• security purposes not recognised for fear of vagueness & potential abuse

Coastal states enjoy enforcement powers but not legislative jurisdiction – are given power to police their territorial laws

Canada claims 24 nm contiguous zone in which it can prevent entry on reasonable grounds & or apprehend in contiguous zone on reasonable grounds for believing an offence was committed in Canada

Exclusive Fisheries Zone (EFZ)

• 1960-1982 max. 12 nm
• post-UNCLOS, coastal states entitled to claim exclusive fisheries zone reaching maximum of 200 nm from baselines, although regime of high seas still applies: custom/Fisheries Case.
• EFZs do not arise by operation of law – must be claimed.

Exclusive Economic Zone (EEZ)

EEZs do not arise by operation of law – must be claimed
Coastal states entitled to claim EEZ to a maximum of 200 nm from baselines: UNCLOS.
High seas regime does not apply in the EEZ – neither high seas nor territorial/contiguous – regime sui generis (yet unsettled)

Rights of coastal state:
• exclusive economic rights to exploit living/non-living resources in water, subsurface & subsoil
• first dibs on fisheries resources – can require payment for sharing surplus
• creation of necessary infrastructure for exploitation

Duties of coastal state:
• not to interfere unreasonably with high seas freedoms
• conserve & manage living resources
• optimise their use by allowing 3rd party exploitation (favouring developing states)

Canada claims 200 nm EEZ: Oceans Act (1996)
• probably customary by now

Continental Shelf

Continental margin is shelf between the mainland & the deep seabed – includes continental shelf, continental slope, & continental rise.

Coastal states possess sovereign/exclusive rights (by operation of law) to explore & exploit natural resources of continental shelf
• does not affect legal status of waters or airspace above continental shelf: custom/Geneva/UNCLOS.
• "Natural resources" are minerals, non-living resources of seabed & subsoil, & sedentary living resources: custom/Geneva/UNCLOS.

Extent of Continental Shelf

Comprises seabed & subsoil beyond the territorial sea throughout the natural prolongation of the land territory of the coastal state: custom/UNCLOS.

Maximum extent of continental shelf depends on source of law:
• Custom: to depth of 200 metres or to exploitable depth, but no further than end of the continental margin
• Geneva: to depth of 200 metres or to exploitable depth
• UNCLOS: to breadth of 200 nm from baselines or (if continental margin extends this far & permission is received from Commission) to 350 nm from baselines
• quid pro quo for claiming resources past 200 nm under UNCLOS (due to overlap with deep seabed regime, CHH) – percentage of income generated must be submitted to International Seabed Authority
• EEZ includes continental shelf out to 200 nm limit (complete overlap)
• while EEZ is optional, continental shelf rights arise by operation of law
• unlike EEZ, continental shelf may extend beyond 200 nm if criteria are met
• unlike continental shelf, EEZ is subject to sharing surplus with other states
• unlike continental shelf, EEZ confers substantial jurisdiction over pollution

High Seas

Not subject to appropriation – res communis regime
• all states enjoy freedom of high seas
• limited by obligation to show due regard for interests of other states in their exercise of freedom of the high seas: custom/Geneva/ UNCLOS
• custom does not provide for enforcement of "due regard" limitation – look to treaties for enforcement regimes

Extent of high seas:
• maritime area beyond the territorial sea: custom/Geneva
• maritime area beyond territorial sea or EEZ (if claimed): UNCLOS

Freedoms include, inter alia:
• navigation
• overflight
• lay cables & pipelines
• construct artificial islands
• (subject to EEZ/EFZ) fishing
• scientific research

Maintenance of Order on the High Seas

All ships must possess a nationality
"Nationality" requires genuine link – beneficial ownership usually suffices
Stateless ships enjoy virtually no protection at IL
• subject to the jurisdiction of all state vessels
• persons remain nationals for basic protection, but can be subject to procedural jurisdiction

Warships/government vessels enjoy:
• right of approach to verify flag: custom/UNCLOS
• absolute immunity from non-flag state ships on high seas

Flag state granted almost complete jurisdiction over its ships/crews/passengers to ensure maintenance of order on high seas
Exceptions:
• vessels engaged in piracy, slave trading, or unauthorised broadcasting can lose protection of flag state
• ship is flying two flags or inoperative flag
• coastal state vessels may enforce on the high seas (hot pursuit) if:
• good reason to believe ship has violated one of its laws
• pursuit began when the ship was in the relevant maritime zone for that law
• vessel signalled to stop by auditory or visual signal
• pursuit was uninterrupted
• note: pursuer cannot enter territorial waters of another state & cannot sink ship if apprehension impossible: I'm Alone Case

Deep Seabed

According to custom & Geneva Convention, deep seabed, subsoil & airspace above high seas governed by a res communis regime like the high seas.

With discovery of rare minerals & metals, & means for their exploitation, state parties to UNCLOS developed a common heritage of humankind (CHH) regime. Developed states persistent objectors to CHH regime for area – barrier to UNCLOS until 1994 Agreement on Implementation.

Area consists of deep seabed, ocean floor, subsoil (beyond territorial) & its resources. Exploitation of the deep seabed, ocean floor/subsoil, & its resources is to be for the benefit of all humankind – criteria set out in 150.

UNCLOS established bureaucratic management/exploitation/ sharing structure:
• International Seabed Authority
• part of exploitation proceeds to go into fund for common benefit of mankind
• developed states to "cooperate" with ISA to transfer technology at commercial rates