PUBLIC INTERNATIONAL LAW 2:

THE LAW OF THE SEA

ASSIGNMENT 5 (WEEK 8)

NAME

MUHAMAD NAZIR ROSMERA

1129627

MUHAMAD ZAQQUAN ABDUL LATIB 1128589

LECTURER

ASSOC. PROF. DR. MOHD HISHAM MOHD KAMAL

SUBJECT

PUBLIC INTERNATIONAL LAW 2

SECTION

TUTORIAL

THURSDAY (3-4 PM)

No.

CONTENTS

Facts of the case

Page number

Assignment 5 (a)
Assignment 5 (b)

Submissions
First Submission
Second Submission

References

3
8

12

Facts of the Case

(a) Pulau Spitnique is an Island State. The northern coastline of Pulau Spitnique is indented,
with many small rocks jutting out into the sea. Two of these rocks are observable only
during low-tide. One of them is located 2 nautical miles from the otherwise straight base
line drawn around the indented coastline; the other is 11 nautical miles from the first
rock.
The Mary Rose is a merchant vessel flying the flag of Ruritania, traversing the sea
surrounding the second rock. During its passage, it has been releasing oil all the way,
polluting the vast maritime areas around Pulau Spitnique.
A Pulau Spitnique naval vessel has spotted The Mary Rose while she was near the first
rock, boarded and seized the vessel and arrested the crew. The Government of Ruritania
has lodged a complaint against Pulau Spitnique, arguing that the The Mary Rose was not
within its territorial waters at the time of the alleged pollution and that Pulau Spitnique
has no right under the UNCLOS 1982 to arrest the ship or take any legal action against
the owner and the crew.

Advise the Pulau Spitnique Government.

(b) The Titanic, a liner vessel flying the flag of State A, was passing through the Malaysia
territorial sea. The Master and the crew of the vessel were all nationals of State A. Bully,
a crewmember, stabbed and killed another crewmember, jumped into the sea, and swam
to the nearest shore. Later, Malaysian police arrested him and were preparing to initiate
proceedings against him for violations of Immigration laws and also for murder he
committed on board the Titanic. State A strongly protests against the attempt by the
Malaysian authorities to exercise jurisdiction over Bully and requests the extradition of
Bully under the 1996 Extradition Treaty between Malaysia and State A in order that
Bully could be tried in State A under State As criminal law.

Advise the Foreign Minister of Malaysia.

Would your answer be different if the deceased were a Malaysian permanent resident?

First Submission
Based on the facts given, there are three issues that need to be dealt with which are
discussed under the topic of Law of The Sea. With regard to these issues, the main law that must
be referred to is the United Nation Conference on the Law of the Sea (UNCLOS 1982). Whether
The Mary Rose was within the territorial sea of Pulau Spitnique at the time of the alleged
pollution or not.
The first issue is whether The Mary Rose was within the territorial sea of Pulau
Spitnique at the time of the alleged pollution or not. According to Article 2(1) of the
UNCLOS 1982, the territorial sea can be defined as a belt of the sea surrounding the coast of a
State over which international law permits the coastal State to exercise sovereignty, subject to
the right of innocent passage of foreign ships.1 It has been further explained under Article 3 of
the UNCLOS 1982 with regards to the breadth of the territorial sea whereby, Every State has
the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles,
measured from baselines determined in accordance with this convention. Based on this
provision, it is a common practice of most of the States to accept the new law imposed about the
12-nautical miles territorial sea limit.
By virtue of Article 5 of the UNCLOS 1982, the normal baseline from which the
breadth of the sea is measured is the low-water line along the coast as marked on large scale
charts officially recognised by the coastal state. Low-water line means the line along the coast of
a State at the time of low tide.2 Meanwhile, under Article 7(1) of the UNCLOS 1982, it
recognises the straight baseline method by stating, in localities where the coastline is deeply
indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity,
the method of straight baselines joining appropriate points may be employed in drawing the
baseline from which the breadth of the territorial sea is measured. Basically, normal baseline is
the general rule for the coastal state to apply. However, it is permissible to draw straight baselines by joining the appropriate points on the shore or from island to island. In other words, this
method is applied to draw baseline from one prominent coastal feature to another so as to by1

Abdul Ghafur Hamid @ KhinMaungSein (2011). Public International Law: A Practical Approach. (3rd revised ed.),
Petaling Jaya: Thompson Reuters, Sweet & Maxwell Asia, p. 257.
2
Ibid, p. 258.

pass the irregularities in between. Refer to the case of Anglo-Norwegian Fisheries Case
(United Kingdom v Norway) (1951) ICJ Rep 116, the International Court of Justice held that
the straight baseline method developed by Norway was permissible under international law for
countries whose coasts were deeply indented or infringed with islands.3
In addition, according to Article 13(1) and (2) of the UNCLOS 1982, it had stated the
explanation of low-tide elevation as a naturally formed area of land which is surrounded by and
above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly
or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an
island, the low-water line on that elevation may be used as the baseline for measuring the breadth
of the territorial sea. Meanwhile, if a low-tide elevation is wholly situated at a distance exceeding
the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its
own. In the case of Maritime Delimitation and Territorial Questions Between Qatar and
Bahrain (2001) ICJ Rep 40, the International Court of Justice ruled that whereas a low tide
elevation is situated within the limits of the territory sea may be used for the determination of its
breadth, this does not hold for a low-tide elevation which is situated less than 12 nautical miles
from that low-tide elevation but id beyond the limits of the territorial sea. The law of the sea does
not in these circumstances allow application of the so-called leap-frogging method.
Applying to our present case, since the northern coastline of Pulau Spitnique is indented
with many small rocks jutting out into the sea, the proper method of measuring the baseline of its
territorial sea is by using the straight baseline system. As the first rock is still within the 12
nautical-mile limit of the breadth of the territorial sea from the islands coastline, its low-water
tide can be used as the baseline to measure the territorial waters. On the other hand, as the second
rock is not within the 12 nautical mile limit of the breadth of the territorial sea from the islands
coastline, it cannot be used as the baseline to measure the territorial waters as the international
law does not permit leap-frogging in doing the measurement.
The second issue is whether The Mary Rose has the right of innocent passage and
what are the duties and obligations imposed on it. By virtue of Article 2(3) of the UNCLOS
1982, the coastal state exercises sovereignty over its territorial sea subject to this Convention and
3

Mohammad Naqib Ishan Jan (2008). Principles of Public International Law: A Modern Approach, IIUM, IIUM
Press, p 256.

to other rules of international law. However, although a coastal state can exercise such
sovereignty, it is subject to a very important limitation to the coastal States sovereignty is that it
has to allow ships of all States the right of innocent passage through its territorial sea as provided
under Article 17 of the UNCLOS 1982 whereby, subject to this convention, ships of all States,
whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.

In other words, foreign ships have a right of innocent passage through the territorial sea.
The meaning of passage can be found in Article 18 of the UNCLOS 1982 whereby
passage means navigation through the territorial sea for the purpose of just traversing that sea or
proceeding to or from internal waters, which shall be continuous and expeditious, except where
stopping or anchoring is necessary by force majeure (Act of God) or distress or to render
assistance to persons, ships, or aircrafts in danger. With regards to the innocent passage, it is
further explained in Article 19 of the UNCLOS 1982 which stated that passage is innocent so
long as it is not prejudicial to the peace, good order, or security of the coastal States if in the
territorial sea it engages in any fishing activities, or carries research or survey activities, and
other harmful activities including the threat or use of force, weapons exercises, collecting
information prejudicial to the coastal States, pollution and interference with the systems of
communication.
Applying to our present case, Pulau Spitnique must allow the innocent passage as it is the
limitation imposed on the sovereignty over territorial sea. The merchant vessel was only
traversing the sea surrounding the second rock. Hence, the passage was continuous and
expeditious as it did not stop or hover or anchor or cruise in the territorial sea of Pulau Spitnique.
The Mary Rose has been releasing oil all the way, polluting the vast maritime areas around Pulau
Spitnique. Hence, the passage was not innocent as it came with pollution and also harmful
activities from the release of the oil.
The third and last issue is whether Pulau Spitnique has the right or jurisdiction under
UNCLOS 1982 to arrest the ship or take legal action against the owner and the crew or not.
By virtue of Article 32 of the UNCLOS 1982, it was stated that, with such exceptions as are
contained in subsection A and in articles 30 and 31, nothing in this Convention affects the

Ibid, p. 260.

immunities of warships and other government ships operated for non-commercial purposes.
There are laws and regulations that may be adopted by the coastal state relating to innocent
passage. Under Article 21 (1)(f) of the UNCLOS 1982, the coastal State may adopt laws and
regulations, in conformity with the provisions of this Convention and other rules of international
law, relating to innocent passage through the territorial sea in respect of preservation of the
environment of the coastal State and the prevention, reduction and control of pollution thereof.
On the other hand, there are rules applicable to merchant ships and government ships
operated for commercial purposes. According to Article 27 (1) of the UNCLOS 1982, 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
which are first; if the consequences of the crime extend to the coastal State concerned, second; if
the crime is of a kind to disturb the peace of the country or the good order of the territorial sea,
third; 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 fourth; if such measures are necessary
for the suppression of illicit traffic in narcotic drugs or psychotropic substances.
By virtue of Article 28(1) and (2) of the UNCLOS 1982, it mentions that 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. Besides, it also mentions
that 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. It is
further explained in Article 28(3) of the UNCLOS 1982 whereby it reserves a right for the
coastal State to levy execution against or to arrest for the purpose of any civil proceeding, a
foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal
waters.5

Mohammad Naqib Ishan Jan (2008). Principles of Public International Law: A Modern Approach, IIUM, IIUM
Press, p 263.

Applying to our present case, The Mary Rose as a merchant vessel flying the flag of
Ruritania does not have the immunity from the coastal States jurisdiction because the ship was
traversing with a commercial purpose. As it did not exercise innocent passage, the ship is subject
to all Pulau Spitnique laws. Assuming that the local law permits the arrest of the ship and the
legal action against the owner and the crews, Pulau Spitnique Government has the right under the
UNCLOS 1982 to arrest the ship and take legal action against the owner and the crew. This is
because it falls under one of the circumstances stated in Article 28 that is 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. The Mary Rose has failed to observe its duty to exercise the right of
innocent passage by doing the pollution.

Second Submission.
1st Issue : Can Malaysia can initiate proceedings against Bully, who is a national of State A, for
the offences he committed on the Titanic, while the vessel was passing through Malaysia
territorial sea?
As the facts mentioned above, the vessel liner flying flag of State A was passing through
the Malaysian territorial sea. Under Article 2(1) of United Nations Convention on the Law of the
Sea 1982, it stated that the sovereignty of coastal State extends, beyond its land territory and
internal waters, and in case of an archipelagic State, its archipelagic waters, to an adjacent belt of
sea, described as the territorial sea. The definition of territorial sea further elaborate in Article 3
of United Nations Convention on the Law of the Sea where it stated that every State has the right
to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles,
measured from baselines determined in accordance with this Convention. In era of 18th Century,
the Dutch Jurist in his book De Dominio Maris Dissertatio (1702) suggested that the doctrine the
power of the territorial sovereign extended by measuring the distance range covered by cannon
which mounted on the shore. This principle has known as cannon-shot rule. 6It was determined
that the range of the cannon shot was 3 miles. Later, during 19th Century most of the States
accepted those 3 miles as the range of territorial sovereignty. However, in 20th Century, the range
has been extended from 3 miles to 12 miles. In present day, most of States claim 12 nautical
miles as their territorial sea and this approved by United Nations Convention on the Law of the
Sea 1982 in its Article 3.
As for the Malaysia, the State has adopted the 12 nautical miles as range of territorial
sea by promulgating the Emergency (Essential Powers) Ordinance, No 7, 1969. Under this
Ordinance, Malaysia may exercise its own authority over the sovereign territorial sea in so far in
restriction, prohibition or obligation of the vessel passing through in territorial of Malaysia 7. The
measurement of 12 nautical miles shall be measured in accordance with Articles 3, 4, 6, 7, 8, 9,
10, 11, 12 and 13 of the Geneva Convention on the Territorial Sea and Contiguous Zone (1958).
The term of baseline is defined as the starting place from which a coastal States internal
waters, territorial sea and other maritime zone can be measured and this was divided into normal
baseline and straight baseline. The Normal Baseline for measuring the breadth of territorial sea
is the low water line along the coast which marked on large-scale chart officially recognized by
the State. 8 The Straight Baseline is an alternative method of measuring the breadth of territorial
sea. This method used when there are irregularities in coastal area by drawing straight line
baseline to by-pass the irregularities in between. In the case of Anglo-Norwegian Fisheries Case
(United Kingdom v Norway)9 the International Court of Justice held that straight baseline
6

rd

Public International Law : A Practical Approach, Abdul Ghafur Hamid @ Khin Maung Sein, 3 Edition, 2011, page
258
7
Section 3 of Emergency (Essential Powers) Ordinance, No 7, 1969
8
Article 5 of United Nations Convention on the Law of the Sea 1982
9
(1951) ICJ Rep. 116

method developed by the Norway was permissible under international law for any countries
whose coasts were deeply indented or infringed with islands. The method also recognized under
United Nations Convention on the Law of the Sea which provided that in any localities were the
coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its
immediate vicinity, the method of straight baselines joining appropriate points may be employed
in drawing the baseline from which the breadth of the territorial sea is measured. 10 The coastal
State can exercise sovereignty over its territorial sea. In Military and Paramilitary Activities
Case11, the ICJ stated that the basic legal concept of State sovereignty in customary international
law as expressed in Article 2 of United Nations Charter extends to internal waters and territorial
sea of every State and the airspace above its territory. Basically, the coastal State has sovereign
right to regulate matters within its territorial sea. This included transit between its coastal ports,
navigation, Health laws, Custom laws and immigration. The law and regulation set out by the
coastal State on the said matters should be observed and respected by foreign ships exercising
the right of innocent passage.
The right of innocent passage was limitation to the sovereign control of territorial sea
where in 1982 Convention, the ship of all States enjoy the right of innocent passage through
territorial sea.12 Under Article 18 of United Nations Convention on the Law of the Sea, Innocent
Passage means navigation through the territorial sea for the purpose of just traversing that sea or
proceeding to or from internal waters, which shall be continuous and expeditious, except where
stopping or anchoring is necessary by force majeure or distress. In subsequent Article 19(1), a
passage is innocent so long as it is not prejudicial to the peace, good order or security of the
coastal Sea. This laws and regulation which in conformity with international law must be
complied with by foreign ship in exercising the right of innocent passage and shall not violated
or engaged in activities which prejudicial to the peace, good order or security of coastal State as
expressed in Article 19(2) of United Nations Convention on the Law of the Sea. Based on the
facts, there is nothing which states that the Titanic was anchoring within Malaysia territorial sea.
The facts also indicate that the Titanic is not engaging in activities which are prejudicial to the
peace, good order or security of the coastal State. Hence, assuming that the vessel is a
commercial and not a war ship or government-related, the Titanic is engaged within the right of
the innocent passage. Under Article 21(1) of United Nations Convention on the Law of the Sea
allows the Coastal State to adopt laws and regulations, in respect of all or any of the following:
a)
b)
c)
d)
e)

The safety of navigation and the regulation of maritime traffic

The protection of navigational aids and facilities and other facilities or installations
The protection of cables and pipelines
The conservation of the living resources of the sea
The prevention of infringement of the fisheries laws and regulations of the coastal State

10

Article 7(1) of United Nations Convention on the Law of the Sea.

(Nicaragua v USA), Merits, (1986) ICJ Rep. 14, 76 ILR 349 at 445, para. 212
12
Article 17 of United Nations Convention on the Law of the Sea
11

f) The preservation of the environment of the coastal State and the prevention, reduction
and control of pollution thereof
g) Marine scientific research of hydrographic surveys
h) The prevention of infringement of customs, fiscal, immigration or sanitary laws and
regulations of the coastal State
Since the provision Article 21 (1)(h) of the UNCLOS 1982 clearly allowed the coastal State to
adopt and apply such laws relating to innocent passage, and in our current case Malaysia has
adopted Immigration laws, Malaysia has the jurisdiction to initiate proceedings against Bully
with regard to the violation of Immigration laws as contended by Malaysian authority.
However, under Article 27 (1) of the UNCLOS 1982 provided that 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. The coastal State only has the jurisdiction
to try against criminal offences if it falls under all or one of the following cases:
a) If the consequences of the crime extend to 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
d) If such measures are necessary for the suppression of illicit traffic in narcotic drugs or
psychotropic substances
From the facts of the case, Malaysia has jurisdiction to initiate proceedings against Bully for
violating the Immigration laws only and criminal act of murder done by Bully will be tried by
State A since the offence committed by Bully did not fall under any of such circumstances
mentioned above. Therefore, Malaysia in exercising its sovereign of territorial sea upon any
foreign in conducting investigation or exercise its jurisdiction on board of the ship limited to
only what have been provided in Article 27(1) of United Nations Convention on the Law of the
Sea.

10

2nd Issue: Whether Malaysia is obliged to extradite Bully to State A or not?

In addressing this issue, the extradition in which claimed by State A from Malaysia was a
kind of cooperation between States, especially to obtain surrender of suspected criminals or
convicted criminal who are or fled abroad. Oppenheim defined extradition as delivery of an
accused or a convicted individual to the State where he is accused of, or has been convicted of, a
crime, by the State on whose territory he happens for the time to be.13 Under Customary
International law, there is no duty impose upon the States to surrender alleged offender to
another State in the absence of any treaties.14 Unless there is a treaty concluded between the
States concerned, the State is obliged to extradite the wanted criminal to the requesting State.
There has been a development in several multilateral conventions adopting the parties either to
prosecute or to extradite the convicted individual. In Malaysia, extradition of criminal requested
by another State governed under Extradition Act 1992. According to section 6 of the Act, a
fugitive criminal shall only returned for an extradition offence and an extradition offence is an
offence which is punishable by the laws of the requesting State as well as by the laws of
Malaysia.15 This was in conformity with general principles of law of extradition where the
application of principle of double criminality applies.
Since there is 1996 Extradition Treaty concluded between Malaysia and State A, then
Malaysia is under obligation to extradite Bully to State A, as requested by such State, provided
that the offence committed by Bully is an offence under both State As laws and Malaysias law.
3rd Issue : What if the victim is a Malaysian permanent resident?
Article 27 (1) of the UNCLOS 1982 set out criminal jurisdiction that can be exercise by
the coastal State as so far happened to be the case as expressed in the article. If it falls under one
of the exceptions, resulting in the coastal State may have the jurisdiction to initiate proceedings
against Bully. The exception is, Malaysia may have the jurisdiction to initiate criminal
proceedings against the accused if the crime is of a kind to disturb the peace of the country or
the good order of the territorial sea. It will affect the coastal State if its national has been killed
by another national within its territorial waters. Hence, it will prejudice the peace of the country,
even at its slightest, and cause disturbance to the good order of the territorial sea.Thus, if the
victim is Malaysian permanent resident, it will fall under one of the special exceptions in which
it allows the coastal State to initiate proceedings against Bully.

13

th

Oppenheims International Law, 9 edn, Vol 1,Peace(London: Longman, 1992), pp 948-949

14
Factor v Labubenheimer (1933) 290 US 176
15
PP v Ottavio Quattrocchi [2003] 1 MLJ 225

11

References
Abdul Ghafur Hamid @ KhinMaungSein (2011). Public International Law: A Practical Approach. (3rd
revised ed.), Petaling Jaya: Thompson Reuters, Sweet & Maxwell Asia.
Mohammad Naqib Ishan Jan (2008). Principles of Public International Law: A Modern Approach, IIUM,
IIUM Press.
Oppenheims International Law, 9th edn, Vol 1,Peace(London: Longman, 1992),

12