Professional Documents
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Introduction To Law of Sea and ITLOS
Introduction To Law of Sea and ITLOS
the Sea
Prof. Dr. M. Gandhi,
Dean,VIT School of Law ,VIT
University, Chennai Campus
Chennai 600127
Baseline
12
24
WATER
200
350
LAND
Internal
Territorial
Contiguous
EEZ
Continental
Shelf
(Art. 76(5))
Territorial Sea
Coastal States exercise sovereignty over
their territorial sea which they have the
right to establish its breadth up to a limit
not to exceed 12 nautical miles; foreign
vessels are allowed "innocent passage"
through those waters;
Ships and aircraft of all countries are
allowed "transit passage" through straits
used for international navigation; States
bordering the straits can regulate
navigational and other aspects of passage;
Land-locked
and
geographically
disadvantaged States have the right to
participate on an equitable basis in
exploitation of an appropriate part of
the surplus of the living resources of
the EEZ's of coastal States of the same
region or sub-region; highly migratory
species of fish and marine mammals
are accorded special protection
Normal baselines
Delimitation of continental
shelf
General Principles
Relevant circumstances
The general configuration of the coasts of
the parties;
Disregarding or giving less than full effect to
incidental features (e.g. minor offshore
islands) which would otherwise have a
disproportionate effect on the delimitation;
Disparity of coastal lengths in the relevant
area;
The general geographical framework or
context;
The principles of equitable access to the
natural resources of the disputed area.
Jurisdiction
Measurements of Areas of
Sea
Baseline
Territorial
Sea
12
24
Land
Internal
Waters
Water
Contiguous
Zone
High Seas
EEZ
200
CS
By agreement
Median line/equidistance line
Application of equitable Principles
There are 14 decisions of ICJ dealing with this
issue (Equidistance special circumstances
rule)
Equidistance relevant circumstances rule
One decision by ITLOS dealt with this issue
(Myanmar v Bangladesh)
Territorial Sea
Overview
1.
2.
3.
4.
Sovereign authority
Breadth & Measurement
Rights of Ships (innocent passage)
Rights and jurisdiction of coastal
state
Territorial Sea
Sovereignty, subject to the Law of the
Sea Convention (Art. 2)
1. The sovereignty of a coastal State extends, beyond its
land territory and internal waters and, in the case of an
archipelagic State, its archipelagic waters, to an adjacent
belt of sea, described as the territorial sea.
2. This sovereignty extends to the air space over the
territorial sea as well as to its bed and subsoil.
3. The sovereignty over the territorial sea is exercised
subject to this Convention and to other rules of international
law.
Territorial Sea
Breadth (Art. 3)
Up to 12 nautical miles from baseline
Territorial Sea
Art. 17: Subject to this Convention, ships of all Statesenjoy the right of
innocent passage through the territorial sea.
Art. 18: 1. Passage means navigation through the territorial sea for the
purpose of:
(a) traversing that sea without entering internal waters or calling at a
roadstead or port facility outside internal waters; or
(b) proceeding to or from internal waters or a call at such roadstead or
port facility.
2. Passage shall be continuous and expeditious. However, passage
includes stopping and anchoring, but only in so far as the same are
incidental to ordinary navigation or are rendered necessary by force
majeure or distress or for the purpose of rendering assistance to
persons, ships or aircraft in danger or distress .
Territorial Sea
Meaning of Innocent Passage (Art. 19):
1. Passage is innocent so long as it is not prejudicial to the
peace, good order or security of the coastal State. Such
passage shall take place in conformity with this Convention
and with other rules of international law.
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 territorial sea it engages in any of the following
activities:
[Paraphrased: threat or use of force, weapon exercise,
espionage, launching or landing of aircraft or other military
device, violation of customs, fiscal, immigration or sanitary
laws, willful and serious pollution, fishing, research or
surveying activities, interfering with communications or
other facilities, or any other activity not having a direct
bearing on passage]
Territorial Sea
Rights and Jurisdiction of Coastal
State prevent or suspend innocent
passage
Territorial Sea
Civil Jurisdiction in Relation to Foreign
Ships (Art. 28)
1. The coastal State should not stop or divert a foreign ship
passing through the territorial sea for the purpose of
exercising civil jurisdiction in relation to a person on board
the ship.
2. The coastal State may not levy execution against or
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 or for the purpose of
its voyage through the waters of the coastal State.
3. Paragraph 2 is without prejudice to the right of the
coastal State, in accordance with its laws, to levy execution
against or 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.
Territorial Sea
Criminal Jurisdiction on Board a Foreign
Ship (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 territorial sea;
(c) if the assistance of the local authorities has been
requested by the master of the ship or by a diplomatic
agent or consular officer of the flag State; or
(d) if such measures are necessary for the suppression of
illicit traffic in narcotic drugs or psychotropic substances.
Breadth
Art. 57 - The exclusive economic zone shall not extend
beyond 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured.
Continental Shelf
Overview
1.
2.
3.
4.
Continental Shelf
General Measurements
Continental Shelf
Isobath Rule
Continental Shelf
Art. 77 - Rights of the coastal State
over the continental shelf
1. The coastal State exercises over the continental shelf sovereign rights
for the purpose of exploring it and exploiting its natural resources.
2. The rights referred to in paragraph 1 are exclusive in the sense that if
the coastal State does not explore the continental shelf or exploit its
natural resources, no one may undertake these activities without the
express consent of the coastal State.
3. The rights of the coastal State over the continental shelf do not depend
on occupation, effective or notional, or on any express proclamation.
4. The natural resources referred to in this Part consist of the mineral and
other non-living resources of the seabed and subsoil together with living
organisms belonging to sedentary species, that is to say, organisms
which, at the harvestable stage, either are immobile on or under the
seabed or are unable to move except in constant physical contact with
the seabed or the subsoil.
Continental Shelf
Art. 78 - Legal status of the
superjacent waters and air space and
the rights and freedoms of other
States
1. The rights of the coastal State over the continental shelf
do not affect the legal status of the superjacent waters or of
the air space above those waters.
2. The exercise of the rights of the coastal State over the
continental shelf must not infringe or result in any
unjustifiable interference with navigation and other rights
and freedoms of other States as provided for in this
Convention.
ITLOS
The ITLOS functions as one of four dispute resolution
mechanisms in matters concerning the Conventions
interpretation and application. If direct talks between parties to
a dispute fail to produce a settlement, either party may submit
the matter to the ITLOS or to one of the other three
compulsory dispute resolution mechanisms set forth in Article
287 of the Convention.
Since it became fully operational at the end of 1996, Eighteen
cases have been submitted to the ITLOS. Its proceedings,
which are open to the public, consist of written and oral stages
and are conducted in either English or French, the official
languages of the Tribunal.
Composition
The ITLOS is made up of the Judges Chambers (main
Tribunal, Seabed Disputes Chamber, and special chambers),
and the Registry. The competencies of these organs are set
forth in the Convention, the Tribunal Statute, Rules of
Procedures, and other documents.
The Tribunal is composed of 21 judges who are elected for a
renewable nine year term at a meeting of States parties by
secret ballot from a list of nominees.
According to Article 2 of the Statute, all nominees shall have
the highest reputation for fairness and integrity and of
recognized competence in the field of the law of the sea.
Quorum
A quorum of at least 11 members is necessary to constitute the
Tribunal and hear disputes that fall within its general subject
matter jurisdiction in accordance with the Convention.
The ITLOS is also composed of a special chamber of judges,
the Seabed Disputes Chamber (SBDC), whose 11 members
resolve disputes involving the use of the resources found
within the International Seabed Area.
Other special chambers, composed of between 3 to 7
members, may be constituted to hear disputes on summary
procedure, fisheries disputes, marine environment disputes,
and other cases on the request of the parties.
Jurisdiction
All disputes over the interpretation or application of the UNCLOS fall within
the Tribunals jurisdiction provided local remedies have been exhausted in
accordance with international law. Similarly, the Tribunal has jurisdiction over
disputes involving an international agreement related to the purposes of the
Convention. In both instances, the parties to the dispute must first agree to the
Tribunals jurisdiction either through a declaration or special agreement.
The Seabed Dispute Chamber has jurisdiction over disputes involving the
Convention and the Agreement Relating to the Implementation of the Part XI
of the Convention and may issue advisory opinions on legal issues related to
seabed activities upon the request of the General Assembly, Security Council,
and the International Seabed Authority.
In addition to interpreting and applying the UNCLOS, the Tribunal may also
rely on principles of international law and the regulations of the International
Seabed Authority when deciding disputes and applications.
Cases dealt
Since 1998, when it received its first case, a total of 18
cases have been filed. Of these, 13 have been resolved, two
were discontinued and the last three cases, instituted in the
past 12 months, are under way.
On 14 March 2012, the Tribunal gave a judgment in its first maritime delimitation
case. With regard to the continental shelf beyond 200 nautical miles, the Tribunal
first established that it had jurisdiction to delimit the continental shelf in its
entirety. It then examined questions relating to, inter alia, the Parties entitlements
to a continental shelf beyond 200 nautical miles, and the meaning of natural
prolongation and how it inter-relates with that of continental margin. From this
examination, the Tribunal concluded that the Parties had overlapping entitlements
to the continental shelf beyond 200 nautical miles and the Tribunal proceeded to
effect the delimitation. In this connection the Tribunal stated:
Article 83 of the Convention applies equally to the delimitation of the continental
shelf
both
within
and
beyond
200
[nautical
miles].
The
Tribunal
further
observed:
Concluding Observations
The Montego Bay Convention establishes a
comprehensive, very detailed legal regime. It
must be read and applied carefully.
It creates several new, specially-regulated
areas.
It balances the rights of coastal states with
the rights of ocean users (other states, ships).
Overall the general pattern of UNCLOS is
that the closer one is to shore, the more
rights possessed by the coastal state; the
more distant one is from shore, the more
rights go to ocean users (ships, other
vessels).