Chapter 8 Territory: Law of the Sea Importance of the seas flows from two factors 1. 2.

. They are a medium of communication; and They contain vast natural resources

Anglo-Norwegian Fisheries Case (UK vs. Norway)- for the purpose of measuring the breadth of the territorial sea, it is the low-water mark as opposed to the high-water mark, or the mean between the two tides which has generally been adopted in the practice of States. This criterion is the most favorable to the coastal State and clearly shows the character of territorial waters as appurtenant to the land territory. Article 47, LOS- allows the use of the straight baseline method for archipelagic states within certain limitaitions. Sovereignty over territorial seas Article 2, LOS- the sovereignty of the coastal state over its territorial sea and the airspace above it as well as the seabed under is the same as its sovereignty over its land territory. Right of innocent passage o Passage that is not prejudicial to the peace, good or security of the coastal state. Applies to ships and aircrafts Submarines, in order to avail such right, must surface.

Doctrine of the open seas o o Considers the high seas as res communis accessible to all; Recognized as permissible the delineation of a maritime belt by littoral states as an indivisible part of its domain. This belt is the territorial sea.

Convention on the Law of the Sea of 1982 (LOS)prevailing law on maritime domain Article 2, LOS describes the extent of a states sovereignty over waters: 1. 2. 3. Sovereignty of coastal state- extends beyond its land territory and internal waters to the territorial sea. Sovereignty of archipelagic state- extends beyond its archipelagic waters to the territorial sea. Sovereignty extends to the air space over the territorial seas as well as to its bed and subsoil.

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What are not considered innocent passage (Article 19(2), LOS) Passage of foreign ship shall be considered prejudicial to the peace, good order or security of the coastal State if in the territorial sea, it engages in any of the following activities: 1. Any threat or use of force against the sovereignty, territorial integrity or political independence coastal State, or in any other manner in violation of the principles of international law embodied in the UN Charter; 2. Any exercise or practice with weapons of any kind; 3. Any act aimed at collecting information to the prejudice of the coastal State; 4. Any act of propaganda aimed at affecting the defense or security of the coastal State; 5. The launching, landing or taking on board of any military device; 6. The loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; 7. Any act of willful and serious pollution contrary to this Convention; 8. Any fishing activities; 9. The carrying out of research or survey activities; 10. Any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; 11. Any other activity not having a direct bearing on passage. Rights of the Coastal states 1. 2. The unilateral right to verify the innocent character of passage; and May take the necessary steps to prevent passage that it determines to be not innocent.

TERRITORIAL SEA A belt of sea outwards from the baseline and up to 12 nautical miles beyond. Methods of determining the extent of the territorial sea 1. 2. 3. 4. Cannon shot rule- the width of water was measured in terms of the range of shore-based artillery. Three-mile rule Twelve-mile rule (Article 3)- what is being used now Equidistance rule (Article 15) o Used when application of the 12-mile rule to neighboring litorral states would result in overlapping o The dividing line is a median line equidistant from the opposite baseline o Does not apply where historic title or other special circumstances require a different measurement

Baselines: normal or straight Baseline- the low-water line along the coast as marked on large scale charts officially recognized by the coastal State. The width of the territorial sea is measured from the baseline. Two ways of drawing the baseline 1. Normal baseline o One drawn following the low-water line along the coast as marked on large scale charts officially recognized by the coastal State. o Follows the curvature of the coast and therefore would normally not consist of straight lines. Straight baselines o What is followed by archipelagic states. o Instead of following the curvatures of the coast, straight lines are drawn connecting selected points on the coast without appreciable departure from the general shape of the coast. o First upheld in the Anglo-Norwegian Fisheries Case (UK vs. Norway) which eventually became part of convention law (see Art. 7(1), LOS). o RA No. 3046 and RA No. 5446 have drawn straight baselines around the Philippines.

2.

The rule on innocent passage is also applicable to straits (Article 45, LOS) Corfu Channel Case- In time of peace, States have a right to send their warships through straits used for international navigation between two parts of the high seas without previous authorization of a coastal State, provided that the passage is innocent. INTERNAL WATERS All waters (part of the sea, rivers, lakes, etc) landwards from the baseline of the territory.

GR: No fixed norm for determining the low-water mark

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Sovereignty over internal waters is the same in extent as sovereignty over land. It is not subject to the right of innocent passage. Saudi Arabia vs. Aramco (1963)- Ports of every state must be open to foreign vessels and can only be closed when vital interests of the state so requires. Nicaragua vs. US- a coastal state may regulate access to its ports.

2.

To promote the objective of optimum utilization of the living resources. o The coastal State should determine the allowable catch of living resources; o If it does not have the capacity to harvest the allowable catch, it must grant access to other states.

Note: The delimitation of the overlapping EEZ between adjacent states is determined by agreement. THE CONTINENTAL (ARCHIPELAGIC SHELF) Refers to 1. The seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea, to a depth of 200 m or beyond that limit to where the depth allows exploitation; The seabed and subsoil of areas adjacent to islands.

ARCHIPELAGIC WATERS Article 8(2), LOS- Where the establishment of a straight baseline (in archipelagic states) has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage shall exist in those waters. Article 53, LOS- an archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and adjacent territorial sea. Article 1, 1987 Philippine Constitutionconsiders all waters connecting the islands as internal waters. BAYS Considered internal waters of a coastal state Bay- a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. Historic bays- bays which are treated by the coastal state as internal waters on the basis of historic rights acknowledged by other states. CONTIGUOUS ZONES An area of water not exceeding 24 nautical miles from the baseline. It thus extends 12 nautical miles from the edge of the territorial sea. The coastal state exercises authority over that area to the extent necessary 1. 2. To prevent infringement of its customs, fiscal, immigration or sanitation authority over its territorial waters or territory; and To punish such infringement (Article 33(1 and 2), 1982 LOS).

2.

Rights of the coastal State 1. 2. 3. Right to explore and exploit its natural resources; Right to erect installations needed; Right to erect a safety zone over its installation with a radius of 500m

Caveat: The right of the coastal State over its continental shelf does not affect the right of navigation of others. Moreover, the right does not extend to non-resource material in the shelf. THE DEEP SEA: Common Heritage of Mankind These are areas of the sea-bed and the ocean floor and their subsoil, which lie beyond any national jurisdiction. o o These are common heritage of mankind and may not be appropriated by any state or person. Activities in the area are governed by Article 135 to 153 of the 1982 Convention.

ISLANDS (Article 121, LOS) Island- a naturally formed area of land, surrounded by water, which is above water at high tide. Islands have their own territorial sea, exclusive economic zone and continental shelf. However, rocks which cannot sustain human habitation or economic life only have a territorial sea. No clear international definition of economic life Artificial islands or installations- not islands in the sense of Article 121. However, coastal states may establish safety zones and prescribe safety measures around them. THE HIGH SEAS All parts of the sea that are not included in the territorial sea or in the internal waters of a State (Article 1, Geneva Conventions on the High Seas) The contiguous zone is part of the high seas. Six freedoms in the high seas 1. 2. 3. Freedom of navigation; Freedom of overflight- belongs to both civilian and military aircrafts. Freedom of fishing- also includes the duty to cooperate in taking measures to ensure the conservation and management of the living resources of the high seas. Freedom to lay submarine cables and pipeline; Freedom to construct artificial islands and structures; Freedom of scientific research

International Law Commissions Commentary on the Draft of the 1982 LOS The power of control given to the littoral state does not change the nature of the waters. Beyond the territorial sea, the waters are high sea and are not subject to the sovereignty of the coastal state. EXLUSIVE ECONOMIC ZONE OR PATRIMONIAL SEA An area extending not more than 200 nautical miles beyond the baseline. Right of the coastal State The coastal State has the right over the economic resources of the sea, seabed and subsoil but the right does not affect the right of navigation and overflight of other states. Obligations of the coastal State 1. To ensure through proper conservation and management measures that the living resources of the EEZ are not subjected to over-exploitaiton. o Includes the duty to maintain and restore populations of harvested fisheries at levels which produce a maximum suitable yield 4. 5. 6.

Ships in the high seas

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The flag state has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement. By legal fiction, a ship is a floating part of the flag state. The law of the flag state is applied on the pragmatic basis that there must be some law on shipboard, that it cannot change at every change of waters and no experience shpws a better rule than that of the state that owns it.

Article 86, 1982 LOS- the six freedoms applies to all parts of the sea that are not included in the exclusive economic zone, the territorial sea or in the internal waters of a state, or in the archipelagic waters of an archipelagic state. Hot pursuit Article 111, LOS- allows hot pursuit of a foreign vessel where there is good reason to believe that the ship has violated laws or regulations of a coastal State. Rules on hot pursuit 1. Must commence when the foreign vessel is within the internal waters, the archipelagic waters, the territorial waters or the contiguous zone of the pursuing state. May continue into the high seas if the pursuit has not been interrupted If the foreign ship is in the contiguous zone, it may be pursued only for violations of the right of the coastal state in the contiguous zone. Shall apply to violations of applicable laws and regulations of the coastal state in the exclusive economic zone or in the continental shelf including the safety zone of the shelf. Must stop as soon as the ship pursued enters the territorial waters of its own state or of a third state. May be carried out only by warships or military aircraft, or any other ship or aircraft properly marked for that purpose.

2. 3. 4.

5. 6.

The Im Alone (29 AJIL 326)- Although the pursuit was found to be legitimate, the sinking of the pursued vessel was found to not justified by anything in the Convention nor by any principle of international law. The Commission ordered the US to apologize to the Canadian government and to pay damages. Settlement of Disputes o o Peaceful settlement of disputes is compulsory (Part XV, LOS) If a bilateral settlement fails, the dispute is required to be submitted for compulsory settlement in one of the tribunals clothed with jurisdictions (Art. 285, LOS).

Alternatives 1. 2. 3. International Tribunal for the Law of the Sea; ICJ Arbitral tribunal constituted under the Convention