Law of Sea

Introduction
The seas have historically performed two important
functions:
first, as a medium of communication, and
secondly as a vast reservoir of resources, both living
and non-living.
Grotius who elaborated the doctrine of the open
seas, whereby the oceans as res commtinis were to be
accessible to all nations
Mare clausum (closed sea)- 15th to 17th centuryjurist- J.Selden
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 Why would States negotiate to a Law of Sea?

Some useful ideas from Scholars :
Balancing of Interest
Mc Dougal and Burke
The exclusive Interest of coastal or flag state ( e.g.
Coastal fisheries or control of flag vessels on the high
seas)
Inclusive interest (general) interest of all States( e.g.
Freedom of navigation or high sea fishing)
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 Gidel, Le Droit There can be false opposition: a coastal state can

also be a flag state- it wants both control over its
water and freedom of navigation in others state
waters.
Reciprocity plays a role here. You propose rules you
are prepared to be bound by.

Law of Sea in 20 th Century

Today, It is both codified ( existing rules in writing )
and progressive development(negotiating new rules).
Both League of Nations and UN have provided a
forum for Lot of Sea, Largely through treaty making
HISTORY
League of Nations Hague codification
conference(1930)
The first UN Conference on the LOS (1958)
The second UN Conference on LOS (1960)
The Third UN Conference on the LOS(1973-1982)
(UNCLOS)
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 1930 League of Nations Hague codification

conference
Territorial sea debated but no treaty adopted
A majority support the idea of sovereignty over the
territorial sea
However, no consensus on the breach of territorial
sea
Should the old cannon shot rule be replaced by a
three, four , or six nautical mile rule?

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First UN Conference
Following the WWII , control over maritime natural
resources
President Truman( UN) issues his proclamation on
the continental shelf and on fisheries
Codification of LOS became an imp issue, UN
International Law Commission began a project to
produce draft articles on the topic
ILC works on the issue from 1949-1956 and
produced its Articles Concerning the LOS for the
UN GA.
The ILC Articles form the basis for negotiations in
Geneva in 1958;(UNCLOS I)
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 Conventions are produced on

The territorial sea and the contiguous zone
The high sea
Fishing and conservation of the living resources of the
high sea
The continental shelf
As well as optional protocol concerning the
compulsory settlement of disputes
One key issue was unsolved: the width of the
territorial sea( However, the contiguous zone could
not exceed 12 nm from baselines.)
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UNCLOS II and UNCLOS III

Called to resolve the deadlock on the width of the
territorial sea.
A proposal for a 6 mile territorial sea plus 6 mile
contiguous zone, failed by one vote.
UNCLOS III
Several developments suggested the need for a new
convention:
Seabed resources (nickel, cobalt, etc)
Fisheries
Protection of the marine environment
Decolonisation (emergence of newly independent states)
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UNCLOS III
Tommy Koh- a constitution for the oceans
320 Articles, 9 Annexes, 167 parties
N o Reservations- accept all or none of it, no picking
and choosing
The adoption of the final text was not adopted by US
Though US accepts much of UNCLOS as binding
customary international law and is bound by 1958
Geneva Conventions.

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Important areas
Baseline
Internal waters
Territorial waters
Archipelagic waters
Contiguous zone
Exclusive economic zones (EEZs)
Continental shelf
Bays
Islands

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Baseline
A low water mark around the coasts of the state
Article 3 of the Geneva Convention on the
Territorial Sea and Contiguous Zone in 1958 and
Article 5 of the UNCLOS- low water line along the
coasts
At times, it is difficult to locate the low water line
which is to act as the baseline
By virtue of the 1958 Convention on the Territorial
Sea and the 1982 Law of the Sea Convention, the
low-water line of a low-tide elevation may now be
used as a baseline for measuring the breadth of the
territorial sea if it is situated wholly or partly at a
distance not exceeding the breadth of the territorial
sea from the mainland or an island

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 When a low tide elevation is situated in the

overlapping area of the territorial sea of two states,
both are in principle entitled to use this as part of
the relevant low-water line in measuring their
respective territorial sea
However it does not apply for islands
Where the coastline is deeply indented or there are
numerous islands running parallel to the coast,
special rules have evolved
Low tide elevation- A naturally formed area of land
(rock, reef etc) surrounded by water , above water at
low tide but submerged at high tide (Art 13 ,
UNCLOS)
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 Anglo- Norwegian Fisheries case ICJ Rep.,1951

Skjaergaard (Fringe of Island and Rocks)
Straight baselines joining appropriate points may
be employed in case of the coastlines which are
deeply indented and cut into.
The system of straight lines can be applied- (Art 7)
1. straight baseline must not depart to any extent
from general direction
2. sea areas lying must have sufficient close link with
land domain
Economic interest must be taken into consideration
It should not be applied in a manner that it cuts off
the territorial sea of another State.
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Internal Waters
Article 8(1) defines internal waters as waters on the
landward side of the baseline of the territorial sea
The coast state enjoys the complete territorial sovereignty
over the internal waters as it does over its land domain
Mostly water in a port area are part of internal waters
because the baseline is usually drawn along the outer
perimeter of the port
Water bodies like rivers, lakes, bay waters etc
Foreign ships do not have right to enter into port ,must
obtain inward clearance
Or, bodies not considered as internal water before
establishment of the system of straight baselines, and are
subject to right of innocent passage of foreign ships
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(Art8(2))

State Jurisdiction
It has criminal as well as civil jurisdiction over any
foreign merchant ships within its territorial internal
waters or docked in its ports or harbour
The warships and other non commercial govt vessels
are immune from jurisdiction of costal state
A merchant ship in a foreign port or in foreign
internal waters is automatically subject to local
jurisdiction( unless any express agreement)
Purely disciplinarian issues (ships crew) not related
to peace within territory flag ship
Wildenhus case,1887,
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Archipelagic waters
AS- it is a island state, consisting of more than one
archipelago, islands are closely related
Art 46(a) AS is a state constituted wholly by one or more
archipelagos and may include other islands
Water enclosed by archipelagic baselines are called as
archipelagic water (Art 50)
Sovereignty of an AS extends to its AW, airspace above
seabed and subsoil(including resources) (Art49)
Limitations Existing agreements with other states must be respected
(art 51(1)
Traditional fishing rights and other legitimate activities
of immediate neighbouring states in certain parts of AW
must be recognised (Art 51(1))
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 Existing submarine cables laid by other states must be

respected and the maintenance and replacement of the
cables must be permitted subject to due notice in the
regard (art 51(2))
Ships of all states have the right to innocent passage
through the AW (Art 52)
AS may designate sea lanes and air routes above AW for
the continuous and expeditious passage of the foreign ships
and aircrafts through the AW and the adjacent territorial
sea (Art 53(1))
AS may draw straight archipelagic baselines joining the
outermost points of the outermost islands and dying reefs
of the archipelago

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Territorial Sea
TS is a continuous belt of even breadth (around the
entire coastline of a state)
Breadth of TS( Article 3)
All states have the right to establish the breadth of
the TS up to a limit of not exceeding 12nm from the
baseline
Art 12- roadstead, which are normally used for
loading , unloading and anchoring of ships, and
which would otherwise be situated wholly or partly
outside the outer limit of the TS , are including in the
territorial sea
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 Delimitation between States with adjacent or opposite

coasts (Art 15)- states with opposite or adjacent coasts may
determine boundaries of their respective TS by means of
mutual agreement.
In absence of mutual agreement, equidistant from nearest
point on the baseline of respective states.
Legal Status of Territorial Sea
TS is bound to the coast to which it is naturally connected; State sovereignty over a coastal land automatically exercise
sovereignty over the connecting TS
Coastal state enjoys absolute sovereignty over TS. The
sovereignty extend to the airspace above as well as to the
seabed and subsoil under the TS including resources (Art
7)

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 Sovereignty implies that coastal state has exclusive right to

exploitation natural resources of the territorial sea
including fish stock, minerals, gravels and hydrocarbons,
etc
Right of Innocent Passage Imp exception to state sovereignty Right of innocent
passage of the foreign ships
Passage- (art 18) navigation through territorial sea for Travel through the TS without entering internal waters
Proceeding to and fro from internal waters
Passage should be continuous, however, stopping and
anchoring of ships is permissible if it is incidental to
ordinary navigation or rendered necessary , or for the
purpose of rendering assistance to persons, ships or
aircrafts in distress
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 Innocent persons
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:

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 (a) any threat or use of force against the sovereignty,

territorial integrity or political independence of the
coastal State, or in any other manner in violation of
the principles of international law embodied in the
Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the
prejudice of the defence or security of the coastal
State;
(d) any act of propaganda aimed at affecting the
defence or security of the coastal State;
(e) the launching, landing or taking on board of any
aircraft;
(f) the launching, landing or taking on board of any
military device;
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 any act of wilful and serious pollution contrary to

this Convention;
any fishing activities;
the carrying out of research or survey activities;
any act aimed at interfering with any systems of
communication or any other facilities or installations
of the coastal State;
any other activity not having a direct bearing on
passage

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 Right to designate sea lanes and traffic separation

schemes for passage of foreign ships through their
territorial sea as may be necessary for safety of
navigation (Art 22)
Right to protection( Art 25)
Non innocent passage, violations of any conditions
or internal waters or port, suspend temporarily , the
innocent passage

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 Duties of coastal states concerning innocent passage

(Art 24)
Not to hamper right of innocent passage
Cant discriminate against ships of any state
Appropriate to any publicity to any danger to
navigation, within territorial sea of which it has
knowledge of.
Warships (only definition given in Art 29)

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State Jurisdiction
State has exclusive jurisdiction over its TS.
Foreign ships: Criminal Jurisdiction(Art 27)
Crime committed in Foreign ship- while passing TS,
jurisdiction of CS will not be applied except Consequence of crime extended to CS
Disturb the peace and good order of the CS
Assistant of local authorities of CS has been requested
by master of the ship or a diplomatic or consular
agent of flag state
Illicit traffic or in narcotic drugs etc
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 If crime committed on board , a foreign ship passing

through TS after leaving internal waters, CS can take any
step authorized by its laws for the purpose of an arrest or
investigation of such crime
Crime committed on board a foreign ship before the ship
entered the TS , the concerned CS may not take steps to
arrest or investigate ( unless concerned with protection
and preservation of Marine environment or EEZ), CS
may exercise jurisdiction

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Warship and other Govt ships for non

commercial purpose
Foreign warships and other Governmental ships for
non commercial purpose enjoy immunity from
jurisdiction of CS
If Foreign warships fails to comply with the laws and
regulations of the CS, while in its TS, CS may ask
him to leave the TS immediately (Art 30)
In case of loss or damage because of non compliance
of its laws and regulations , the concerned flag state
incurs international responsibility for such loss (art
31)

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Islands
Art 10(1) of 1958 Convention on the Territorial Sea
and Art 121(1) of the UNCLOS as a naturally
formed area of land, surrounded by water , which is
above water at high tide
They can have or generate a territorial sea,
contiguous zone, exclusive economic zone and
continental shelf where relevant( Art 121(2))
Art 121(3) rocks which cannot sustain human
habitation or economic life of their own shall have no
EEZ or continental shelf

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Contiguous zone
Belt of sea which is beyond and adjacent to
territorial sea of a coastal state and on which CS has
limited jurisdiction (like customs, immigration,
sanitation etc)
Historical Development It has its roots in the practice of some states like US
and UK to extend the operation of some domestic
laws, like revenue or sanitary laws, beyond the TS
Internationally acceptable rule was laid by Gidel in
1930
Breadth of CZ (Art 33(2))
The CZ may not extend beyond 24nm from the baseline
from which the breadth of the TS is measured
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 Legal Status
Unlike TS, the CZ is not naturally attached to the land
territory, a coastal state has to claim it in order to avail
it.
Limited State Jurisdiction
CS does not enjoy territorial sovereignty over the CZ
Although the CS may exercise limited jurisdiction to
the extent necessary (Art 33(1))
Prevent infringement of customs, fiscal, immigration
or sanitary laws
Punish infringement of above laws and regulations

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 Part of High Sea or EEZ

CZ as a part of High Sea
o Under the 1958 Convention on TS, the CZ was
considered as a part of HS (Art 24(1))
CZ as a part of EEZ
The 1982 Convention If CS claims CZ as well as EEZ, the CZ forms a part
of the EEZ
If CS claims only CZ without claiming EEZ, the CZ
will be considered as a part of the High seas

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Exclusive Economic Zone ( EEZ)

Stretch of sea beyond and adjacent to the territorial
sea that the CS may claim for exercising exclusive
rights (art 55)
The sovereign economic rights include rights to
explore, exploit and conserve the living and nonliving resources available within the EEZ
EEZ is the latest addition to the series of maritime
zones developed under the law of seas.

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 Historical Development
Art 6(1) of the 1958 Convention on Fishing and
Conservation of the Living Resources of the High
Seas(CFCLR) recognised that a coastal state had
special interest in maintenance of the productivity of
the living resources in any area of the HS adjacent to
its TS
Due to fast depleting of fishes of HS, states started
extending the claims of exclusive fishing zones
Clash between states (1958-1982) desire to extend the
limits of exclusive fishing zones and TS
1982 gave legal status to EEZ
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 Breadth of EEZ (Art 57)

EEZ cannot extend beyond 200 nm from the baseline
from which the breadth of the TS is measured
Delimitation between Opposite or Adjacent States
(Art 74)
- mutual agreement to achieve equitable solution.
If fail to reach an agreement , settle the dispute
according to part XV of the 1982 convention (Will
be discussed at the end)
Legal Status It is not attached to the land territory. The states do
not enjoy ipso facto rights in EEZ, It has to claim
EEZ

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Rights , Jurisdiction and Duties OF Coastal

State
Exploration and Exploitation of Natural Resources
(Art 56(1)(a))
Conservation and Management of Natural Resources
(Art 56(1)(a))
Other activities for Economic Exploitation(Art 56(1))
(example- production of energy from water, currents,
etc)
Marine Scientific Research 9Art 56 (1)(b)(iii))
Enforcement of Rules and Regulations (Art 73)
Establishment of Structures, artificial Islands(Art
56(1)(b)(i)) (subject to navigation, marine
environment etc..)
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Rights, freedom and Duties of

Other States(Art 58)
Navigation and Over flight ( Art 87)
Laying of Submarine Cables and Pipelines

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Continental Shelf

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 The continental shelf of a coastal State comprises the

seabed and subsoil of the submarine areas that extend
beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the
continental margin, or to a distance of 200 nautical miles
from the baselines from which the breadth of the
territorial sea is measured (Art 76)
continental margin comprises the submerged
prolongation of the land mass of the coastal State, and
consists of the seabed and subsoil of the shelf, the slope
and the rise

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 the coastal State shall establish the outer edge of the

continental margin wherever the margin extends beyond
200 nautical miles from the baselines from which the
breadth of the territorial sea is measured, by either:
Where the continental margin actually extends beyond
200 miles, geographical factors are to be taken into
account in establishing the limit,
which in any event shall not exceed either 350 miles
from the baselines or
100 miles from the 2,500-metre isobaths
(An imaginary surface passing through all points in a
body of water which have the same depth below the
surface.)
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 Information on the limits of the continental shelf beyond

200 nautical miles from the baselines from which the
breadth of the territorial sea is measured shall be
submitted by the coastal State to the Commission on the
Limits of the Continental Shelf set up under Annex II on
the basis of equitable geographical representation.
The Commission shall make recommendations to
coastal States on matters related to the establishment of
the outer limits of their continental shelf. The limits of
the shelf established by a coastal State on the basis of
these recommendations shall be final and binding
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 The coastal State shall deposit with the SecretaryGeneral of the United Nations charts and relevant
information, including geodetic data, permanently
describing the outer limits of its continental shelf. The
Secretary-General shall give due publicity thereto

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 Rights of the coastal State over the continental shelf

(Art 77)
coastal State exercises over the continental shelf
sovereign rights for the purpose of exploring it and
exploiting its natural resources
natural resources referred here consist of the mineral
and other non-living resources of the seabed and subsoil
together with living organisms
coastal State shall have the exclusive right to authorize
and regulate drilling on the continental shelf for all
purposes(Art 81)
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 Legal status (Art 78)

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
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

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Delimitation of the continental shelf

between States with opposite or adjacent coasts
(Art 83)
by agreement
If no agreement can be reached, the States concerned
shall resort to the procedures provided for in Part XV

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High Sea
high seas were defined in Article 1 of the Geneva
Convention on the High Seas, 1958 as all parts of the
sea that were not included in the territorial sea or in
the internal waters of a state.
article 86 of the 1982 Convention includes: all parts
of the sea that are not included in the exclusive
economic zone, in the territorial sea or in the
internal waters of a state, or in the archipelagic
waters of an archipelagic state
It includes inter alia the freedoms of navigation,
overflight, the laying of submarine cables and
pipelines,fishing,scientific research (Art 87)

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 freedoms are to be exercised with due regard for the

interests of other states in their exercise of the
freedom of the high seas, (art87)
The 1963 Nuclear Test Ban Treaty prohibited the
testing of nuclear weapons on the high seas as well as
on land,
article 88 of the 1982 Convention provides that the
high seas shall be reserved for peaceful purposes

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Jurisdiction on the High Sea

No territorial jurisdiction doesnt mean lawlessness
Art 92 of 1982 convention exclusive jurisdiction of
flag state over ships that fly its flag
Duties of Flag state-(art 92)
Exceptions Right to visit (art 95 and 96, 110(4)and(5))
Piracy (art100-107)
Unauthorised broadcasting (art109)
Slave trade(art 99)
Collision(art 97)
Special treaty rights

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