INTERNATIONAL LAW OF THE SEA. UNIVERSITY OF DAR ES SALAAM PROF. CHRIS PETER MAINA
Maritime Zones
1. History of the law of the sea i.
1493 pope divided the sea.
ii.
1945 Harry Truman proclamation.
a. US policy in respect with respect to natural resources of the subsoil and the bed sea of the continental shelf b. US policy with respect to coastal fisheries fish eries in certain areas of the High seas iii.
1952 Latin American state Proclamation.
- Agreed to extend the territorial territorial sea for 200 Nautical Nautical Miles iv.
1958 The UN conference (UNCLOS I, Geneva).
Questions.
1. Is it “3 nautical miles ” or or “3 miles” in in the Canon shot rule? 2. Why law of the “sea” and not law of the “ocean”
April 13, 2016 Zoology Lab
1958 conference Geneva UNCLOS I. In this conference 4 convention were drawn up 1. The convention on the territorial sea and the contiguous zone 1958
The Convention on the Territorial Sea and Contiguous Zone of 1958 is an international treaty which entered into force on 10 September 1964, one of four agreed upon at the first United Nations Convention on the Law of the Sea (UNCLOS I). The convention was ratified by 52 states. Note: Many states have ratified the UNCLOS III convention, which came into force in 1994 and supersedes this convention .
2. Convention on the High sea
This was created to codify the rules of international law relating to the high seas, The treaty was one of four treaties created at the United Nations Conference on the Law of the Sea (UNCLOS I). The treaty was signed 29 April 1958 and entered into force 30 September 1962. As of 2013, the treaty had been ratified by 63 states
3. Convention on fishing and conservation of the living resources of the high seas.
The Convention on Fishing and Conservation of Living Resources of the High Seas is an agreement that was designed to solve through international cooperation the problems involved in the conservation of living resources of the high seas, considering that because of the development of modern technology some of these resources are in danger of being overexploited. -
Opened for signature - 29 April 1958
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Entered into force - 20 March 1966
4. Convention on the continental shelf.
The Convention on the Continental Shelf was an international treaty created to codify the rules of international law relating to continental shelves. The treaty, after entering into force 10 June 1964, established the rights of a sovereign state over the continental shelf surrounding it, if there be any. The treaty was one of three agreed upon at the first United Nations Convention on the Law of the Sea (UNCLOS I). The treaty dealt with seven topics: the regime governing the superjacent waters and airspace; laying or maintenance of submarine cables or pipelines; the regime governing navigation, fishing, scientific research and the coastal state's competence in these areas; delimitation; tunneling 1 Note: It has since been superseded by a new agreement reached in 1982 at UNCLOS III .
This conventions were signed and later ratified and all acceded to by various member of the international community. Apart from this convention there were addition optional protocol. Optional protocol from compulsory settlement of dispute. Many of the provisions of the four conventions where a clear evidence of customary international law and could be clear used even by state which even they did not sign them. Although it was very successfully, UNCLOS I did not agree on the variety of issues. The most disturbing was the width of the territorial sea; and therefore second UN conference was convened in 1960 ( UNCLOS II). UNCLOS II was less successfully compared with UNCLOS I. Still there were no agreement on the width, in addition not all states were satisfied with what was agreed in UNCLOS I. Advancement in science and technology was demanding the revision of the rules governing international sea.
1
Dupuy, René Jean; Daniel Vignes (1991). A Handbook on the New Law of the Sea. Martinus Nijhoff Publishers. p. 328.
It became apparent that the international community needed a third conference (UNCLOS III). UNCLOS III was convened in 1973. The aim of UNCLOS III was to come up with a single and comprehensive convention on the law of the sea. After many sessions over 9 years of negotiations eventually a convention conven tion was ready for adoption by the UNGA in New York 1982. 1982 . The signing ceremony for the UN convention on the law of the seas “UNCLOS “UNCLOS 1982” 1982” (UNCLOS (UNCLOS 1982 is 1982 is not a conference it is the convention, do not confuse them )
The UNCLOS (conference) it was the compromise of various issues, it was the matter of ‘give and take’ between various interest group; the major interest groups in the law of
the seas were:1. Coastal states 2. Landlocked states (country without coastal) 3. Geographically disadvantaged states (A very difficult access to the sea) 4. Island states e.g. cuba 5. Archipelagos (A group of islands) e.g. the Comoros, Seychelles etc. Give and take means means not to be very stiff. Therefore the law of the sea convention was a ‘package deal’ (a typical package deal is to agree i n certain parameters.). Because it
was a package deal, there were delays into coming into force of the agreement so as to reach agreement not by majority but by consensus. The convention was to come into force after getting 60 ratifications or accessions. However, many developed countries were not happy with part 11 of the convention. Part eleven deals with the deep seabed (AREA), particularly in relation to seabed mining, the question of exploration and exploitation of the resources of the sea bed. They were not ready to ratify the convention because they were worried about the new term which was introduced in these area. This concept is called “ Common Heritage of Mankind” Mankind” it was introduced into the law of the sea negotiations or language in i n 1967
by Ambassador Arvid Pardo of Malta. (Malta is North of Libya and South of Italy)
UN Ambassador Arvid Pardo (Malta): 1 November 1967 speech to the UN General Assembly Pardo ended with a called for "an effective international regime over the seabed and the ocean floor beyond a learly defined national jurisdiction". "It is the only alternative by which we can hope to avoid the escalating tension that will be inevitable if the present situation is allowed to continue", he said. After Ambassador Pardo's death in 1999, former UN Secretary General Kofi Annan wrote to his family and said: Ambassador Pardo was rightly known as the Father of the Law of the Sea Conference. He did more than anyone of his generation to enlighten the world about what he called the common heritage of mankind. Ambassador Pardo opposed the 200 mile Exclusive Economic Zone, which left the most valuable fish and mineral resources to the coastal states. As the Law of the Sea Conference drew to a close in 1982, Pardo observed: "All that´s left of the common heritage of mankind´ is a few fish and a little seaweed."
Interpretation of the concept of common heritage of mankind .
There were two interpretation The first was; If an item is characterized as common heritage of mankind, it then belongs to the entire mankind, everyone have right to enjoy it, and therefore those with capacity to exploit the item, should exploit it on behalf of mankind in general. The first interpretation was championed by developing countries and particularly the large number of international community The second was; if it belongs to allover us, those who have capacity to exploit the common heritage can rush and exploit there share. The second was championed by the developed countries and particularly the US: what was been contested was the
resources of the deep see bed ( the deep seabed is very rich on what is called Manganes Nodules ). ).
The UN Secretary General has to enter into series of negotiations between states between 1990 and 1994 in order to find an acceptable formula, eventually consensus was reached and the convention was ratified and come into force in November, 16 1994. The law of the sea convention is the current law on the sea. In Tanzania. Judge Joseph Sinde Warioba and Ambassador James Kateka participated throughout the 9 years of negotiations on the law of the sea. And both they have seated as judge in the international tribunal on the law of the sea, Hamburg German.
April 20, 2016 Zoology The sea and ocean question?
The sea is a larger body of water, more broadly the sea is interconnected system of earth salt oceanic water. Considered as one global or as several principle princi ple oceanic division. Law of the sea is a branch of international law concerned with public order at sea. Much of this law is codified in the United Nations convention on the law of the sea signed in December 1992. Ocean On earth an ocean is one of the major conventional divisions of the world ocean which cover almost 71 percent of its surface. This divisional are in descending orders by area are the pacific Atlantic Indian southern and Actic oceans. An ocean can be defined as a geographic part of the sea. sea. The question of signing and unsigning of the Rome statute.
Not the bill Clinton administration which unsigned the Rome statute. The question of Canon-shot rule is it three miles or three na utical miles?
Still on research.
TERRITORIAL SEA
The territorial sea is that area of water adjacent to the coast which the coastal state is permitted by international law to exercise sovereign competency for purpose of 3 things:1. Jurisdiction 2. Control and 3. Exploitation There is one exception it relates to foreign ships; foreign ship sealing near the coastal states is allowed to exercise the so called “ the right of innocent passage ” (transit
passage). Passage is characterized as innocent passage, if it is not prejudicial to the interest of the coastal state. Innocent passage is characterized with moving purposely. The legal limit on the breadth of the territorial sea has been varied from time to time, currently the breadth is not supposed to exceeds 12 nautical miles based on the baseline or the lower water mark of the coastal state. According to the Geneva Convention on the territorial sea and contagious zone 1958 the territorial sea covers not only the water but also the air space as well as the sea bed and sub-soil that is provided in Article 2. There has been a variety of views as to the juridical character of the territorial sea.
Some authors in international law have argued that the territorial sea is just an “aggregation “aggregation ” of jurisdictions right but remains a “res “ res communis (communal and ” ”
therefore belongs to allover us) and thus outside national domain of the coastal state. Therefore according to this view the coastal state is not the owner nor the sovereign of this regime Another View
The territorial sea belongs to the coastal state and is subject to dominium and imperium of the coastal state only subject to a right of a way for ships of all national states. The modern view on the status of the territorial sea is based on the notion of “accommodation “accommodation of the coastal state exclusive claim of authority over access and
passage in the territorial sea to the right of other state passage free of undue undu e restriction of coastal state. As international law allows coastal state to exercise sovereignty over the territorial sea, the coastal state is thus entitled to treat this area of the sea as part of its territory.
HISTORICAL EVALUATION OF THE LEGAL RULES REGARDING TERRITORIAL SEA
Historical the ocean of the world where at one time claimed for exclusive benefit of harmfully state. In the 16 th century state such as Spain Portugal and England asserted claim to territorial sovereignty over this oceans, this was done mainly for purpose of monopolizing three things 1. Fisheries 2. Trade and 3. Communication. Hugo Grotius he wrote a thesis which was called “ mare liberum” liberum” in 1609, (mare
liberum means freedom of the high seas). In this thesis he started the principle of the freedom of the seas and this thesis was accepted for many centuries. The conflict arouse as some states claimed the white range of maritime dominium while others opposed such claim in this conflict there was however a consensus that every coastal state has a right to authority over some area in the adjacent sea for their protection. Therefore from the very inception of the law of the sea the world community recognized the necessity of protecting reasonable interest of the coastal state.
This was justified for security purpose and even Grotius in his thesis recognized this right of the coastal state and therefore his thesis did not apply adjacent to the shore. The main question was how far seawards (toward the sea) the coastal state should be given, sometime back the cannon shot rule was suggested of three miles, this was suggested and found a considerable support from the international community. Some state and scholars even referred to this rule as a rule of customary international law. However not all state accepted and after 1914 state were making claims of the territorial seas going beyond 3 nautical miles, by 1958 when the first United Nations on the law of the seas was held in Geneva state practices was breaking the universality of the three nautical miles rule. The UN ILC in its commentary on its final draft on the breadth of the territorial seas was obliged to record that And that international law did not permit territorial sea to be extended beyond twelve nautical miles. States practices before UNCLOS I in 1958 indicated that states were claiming between 3 and 200 nautical miles of territorial seas as a results there is so much disagreement both in UNCLOS I and UNCLOS II and therefore it resulted to failure to resolve the question of the breadth of the territorial seas. The next step was UNCLOS III of 1973 – 1982 which resulted to adoption of the United Nation convention on the law of the seas, 1982 which came into force in 1984 and under this convention the breadth of the territorial seas is twelve nautical miles, that is in accordance with Art 3 of the convention.
TECHNIQUES OF THE LIMITATION OF THE TERRITORIAL SEA
As coast of the world world are not uniform and not always ideal ideal there various methods used to delimit the territorial sea. This methods are as follows:a. Lower water mark (Baseline)
The method of using the lower water mark or baseline is used by the coastal states, where the coast is normal and smooth (and measure 12 nautical miles). (There is no something like a shoreline, shorelin e, (the shoreline changes every time and everyday) to do work scientifically is to use the lower water mark, by using the shoreline every time there be demolishing house.)
b. Straight baseline
Are normally applied in rough coasts which are either curved cu rved or in the case or an inland. And it applies to K and tide. The question of straight baseline was discussed by ICJ in the case of fisheries (UK V. Norway). In this case the ICJ used the traditional technique of employing the lower water mark for measuring the depth of the territorial sea. It ruled that since the SKJAER GAARD was just an extension of the… The court explained that this solution of using the outer lines was dictated by geographical realities, in addition it was influence by the economic interests peculiar to a region. It was a reality and important to be noted and there was evidence of long usage.
Facts On 24 September 1949, the UK requested that the International Court of Justice determine how far Norway's territorial claim extended to sea, and to award the UK damages in compensation for Norwegian interference with UK fishing vessels in the disputed waters, claiming that Norway's claim to such an extent of waters was against international law.
Judgment On 18 December 1951, the ICJ decided that Norway's claims to the waters were not inconsistent with international laws concerning the ownership of local sea-space. The Court found that neither the method employed for the delimitation by the Decree, nor the lines themselves fixed by the said Decree, are contrary to international law; the first finding being adopted by ten votes to two, and the second by eight votes to four. Three Judges — MM. Alvarez, Hackworth and Hsu Mo appended to the Judgment a declaration or an individual opinion stating the particular reasons for which they reached their conclusions; two other Judges —Sir Arnold McNair and Mr. J. E. Read —appended to the Judgment statements of their dissenting Opi nions.
c. Archipelagic baselines. baselines.
The method of delimiting the territorial sea is that of joining the outer most points of the outer most inland and drying reefs. For purpose of facilitating navigation the archipelago must designate/indicate sea lanes to be followed by ships and other marine vessels exercising the right of innocent passage. d. Equidistance.
This is the method used to delimit the territorial seas of two adjacent and opposite states. The method begins normally with negotiations and agreement of the two states on delimitation in particular and specific circumstances the two states may resort to historical titles however in absence of an agreement on delimitations or absence of agreement on the application of historical titles then the solution is to resort to the application of the equidistance principle .
Equidistance principle relates to the distance measured from each side from the
points on baselines or from the lower water mark from which a breadth of the territorial seas is measured.
