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STAFF COLLEGE ENTRANCE EXAM PREPARATION - PAPER-III

BANGLADESH MERCHANT SHIPPING ORDINANCE

Q.1 What is a special Trade Passenger Ship? What are the rules and regulations
for the services of medical officer and attendants for such a ship? How the master
of a Special Trade Passenger Ship is punished if he does not comply with the
provisions of the ordinance?
ANSWER
Special Trade Passenger means a passenger carried in special trades in spaces
1.
on the weather deck, upper deck or between decks which accommodate more than 8
passengers.
2.
Special Trade Passenger Ship means a mechanically propelled passenger ship
which carries more than 30 special trade passengers.
The Rules and Regulations for the Services of MO and Attendants for such a Ship
Every special trade passenger ship which has on board more than one hundred
1.
persons, which number shall include special trade passengers, cabin passengers and
crew, shall have on board a Medical Officer possessing such qualifications as may be
prescribed. If the number of such persons exceeds one thousand, two such Medical
Officers shall be carried and if the number exceeds two thousand, three such Medical
Officers there shall also be carried such attendants as may be prescribed.
2.
The services of all such Medical Officers and attendants shall be provided
without charge to all special trade passengers on board.
3.
Any person who charges a special trade passenger for the services of a Medical
Officer or attendant shall, for each offence, be punishable with fine which may extend
to two thousand taka.
4.
Every such Medical Officer shall keep diaries and submit reports or other returns
as may be prescribed.
5.
If Medical Officers and attendants are not carried on special trade passenger ship
in accordance with the above provisions (Para 1), the master and owner shall each be
liable to a fine not exceeding twenty thousand taka.

IF Master of a Passenger Ship does not comply with the Provisions of Ordinance
1.
If the Master knowingly keeps on board any pilgrim or article ordered to be
removed under this section, he shall be punishable with fine which may extend to ten
thousand taka for each such pilgrim or one thousand taka for each such article or with
imprisonment for a term which may extend to one year, or with both.

Q.2 What are the general rules concerning life saving appliances and fire
appliances to be carried by every Bangladesh ship going to sea?
ANSWER
Life Saving Appliances
The government may, by notification in the official gazette, make rules
1.
prescribing the life saving appliances and fire appliances to be carried by every
Bangladesh ship going to sea.
2.
In particular and without prejudice to the generality of the foregoing power, such
rules may provide for all or any of the following matters, namely:
a.
The arranging of ships into classes, having regard to the services in which
they are employed, the nature and duration of the voyage and the number of
persons carried.
b.
The number, description and mode of construction of the boats, life-rafts,
line throwing appliances, life-jackets, life-buoys and buoyant appliances to be
carried by ships according to the classes in which the ships are arranged.
c.
The equipment to be carried by any such boats and rafts and the method to
be provided to get the boats and other life saving appliances into the water,
including oil for use in stormy weather.
d.
The provision in ships of a proper supply of lights and smoke signals
inextinguishable in water and fitted for attachment to life-buoys.
e.
The position and means of securing the boats, life-rafts, life-jackets, lifebuoys and buoyant apparatus.
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f.
The marking of boats, life-rafts, and buoyant apparatus so as to show their
dimensions and the number of persons authorized to be carried on them.
g.

Manning of life boats and the qualification and certificates of life-boatmen.

h.
The provision to be made for mustering the persons on board and for
embarking them in the boats (including provision for the lighting of, and the
means of ingress to and egress from, different parts of the ship).
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The provision of suitable means situated outside the engine room whereby
any discharge of water into the boats can be prevented.
k.

Assignment of specific duty to each member of crew in case of emergency.

l.
The methods to be adopted and the appliances to be carried on ships for the
prevention, detection and extinction of fire.
m.
The provision in ships of plans and other information and relating to the
means of preventing, detecting, controlling and extinguishing outbreak of fire.
n.

The practice in ships of boat drills, and fire drills.

p.
The provision in ships of means of making effective distress signals by day
and by night.
q.
The provision in ships, engaged on voyages in which pilots are likely to be
embarked, of suitable pilot ladders, and of ropes, light and other appliances
designed to make the use of such ladders safe.
r.
The periodical examination and maintenance of any appliances or
equipment required by any rules made under this Act to be carried by ships, and
s.
The manner in which a notice given shall be communicated to the collector
of customs.
t.
The charging of fees for the grant of the certificates and the amount of such
fees and the manner in which they shall be recoverable.
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3.

Inspection of life saving appliances and fire appliances:


a.
A surveyor may, at any reasonable time, inspect any ship for the purpose of
seeing that she is properly provided with life saving and fire appliances in
conformity with the rules made under this Act.
b.
If the said surveyor finds that the ship is not so provided he shall give to
the master or owner notice in writing pointing out the deficiency and also
pointing out what in his opinion is requisite to remedy the same.
c.
Every notice so given shall be communicated in the prescribed manner to
the customs collector of any port at which the ship may seek to obtain a clearance
and the ship shall be detained until a certificate signed by such surveyor is
produced to the effect that the ship is properly provided with life-saving and fire
appliances in conformity with the said rules.

Q.3 What is meant by Unseaworthy Ships? What punishment is due if


unseaworthy ship is sent to sea? State the details of obligation of owner to crew
with respect to seaworthiness.
ANSWER
Unseaworthy Ship
1.

A ship is unseaworthy within the meaning of this Ordinance, when


a.

The materials of which she is made

b.

Her construction

c.

The qualifications of the crew including officers

d.

The weight, description and stowage of the cargo and ballast, the condition

of her hull and equipment, boilers and machinery


-

Are not such as to render her in respect of fitness for the proposed

voyage or service.

Punishment for Sending Unseaworthy Ship to Sea


1.
Every person who sends or attempts to send a Bangladesh ship to sea from any
port or place in Bangladesh in such a unseaworthy state that the life of any person is
likely to be thereby endangered shall, unless he proves that he used all reasonable
means to ensure her being sent to sea in a seaworthy state or that her going to sea in
such unseaworthy state was under the circumstances reasonable and justifiable, be
punishable with imprisonment which may extend to two years, or with fine which
may extend to forty thousand taka, or with both.
2.
Every master of a Bangladesh ship who knowingly takes such ship to sea in such
unseaworthy state that the life of any person is likely to be thereby endangered shall,
unless he proves that her going to sea in such unseaworthy state was, under the
circumstances, reasonable and justifiable, be punishable with imprisonment which may
extend to two years, or with fine which may extend to forty thousand taka, or with both.
3.
For the purpose of giving such proof, every person charged under this section
may give evidence in the same manner as any other witness.
4.
No prosecution under this section shall be instituted except by, or with the
consent of, the government.
Obligation of Owner to Crew with Respect to Seaworthiness
In every contract of service, express or implied between the owner of a
1.
Bangladesh ship and the master or any seaman thereof, and in every contract of
apprenticeship whereby any person is bound to serve as an apprentice on board any such
ship, there shall be implied, notwithstanding any agreement to the contrary, an
obligation on the owner that such owner and the master, and every agent charged with
loading of such ship or the preparing thereof for sea, or sending thereof to sea, shall use
all reasonable means to ensure the seaworthiness of such ship for the voyage at the time
when such voyage commences, and to keep her in a seaworthy state during the voyage.
2.
For the purpose of seeing that the provisions of this section have been complied
with the government may, either at the request of the owner or otherwise, arrange for a
survey of the hull, equipment or machinery of any sea-going ship by a surveyor.

Q.4 What is the criteria and procedure for keeping Official Log books by
Bangladesh Ships according to our shipping ordinance?
ANSWER
Procedure for Keeping Official Log
1.
Except in the case of a coasting ship not exceeding 200 tons gross and a sailing
vessel or a fishing vessel an official log in prescribed form shall be kept in each Bd ship.
2.

The official log shall be kept distinct from the ordinary ship's log.

3.
Any entry required by this Ordinance in the official log book shall be made as
soon as possible after the occurrence to which it relates, and, if not made on the same
day as that occurrence, shall be made and dated so as to show the date of the occurrence
and of the entry respecting it and if made in respect of a occurrence happening before
the arrival of the ship at her final port of discharge, shall not be made more than twentyfour hours after that arrival.
4.
Every entry in the official log book shall be signed by the master and by the
senior mate available on board and also:
a.
If it is an entry of illness, injury or death, by the surgeon or medical
practitioner on board, if any, and
b.
If it is an entr1y of wages due to or the property of a seaman or apprentice
who dies, by some other member of the crew.
c.
If it is an entry of wages due to a seaman who enters service in the
Bangladesh navy, by the seaman or by the officer authorized to receive the
seaman into that service.
5.
Every entry made in an official log book in the manner provided by the
Ordinance shall be admissible in evidence.
Entries to be made in the Official Log/ Contents of Merchant Ships Log
The master of a ship for which an official log is required shall enter or cause to be
entered in the official log book the following matters, namely:
1.

On Discipline
a.

Every offence committed by any crew.


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b.

Every offence tried on board with punishment inflicted.

c.
Every Conviction of any crew with punishment by any court or by any
other authority.
d.
Statement on character, conduct and qualification of every crew on board
and a report on the quality of work of each member of his crew.
e.
Every disrating of sailors with statement of fact and acknowledgement by
the individual.
2.

Birth, Marriage and Death


a.

Every Birth onboard with the sex of the infant and the names of the

parents.

3.

b.

Every marriage onboard with name and ages of parties.

c.

Every case of death onboard and the cause thereof.

Health and Hygiene


Every case of illness or injury with the nature thereof and the medical
a.
treatment adopted, if any.
b.
Record of examination of provision and water and the result of such
examination.
c.
A record of inspection of crew accommodation and the result of such
inspection.

4.

Pay and Money Concerned


The name of every seaman or apprentice who ceases to be a member of the
a.
crew otherwise than by death, with the place, time, manner and cause thereof.
b.
The wages due to any seaman or apprentice who dies during the voyage or
otherwise ceases to be a member of the crew, and the gross amount of all
deductions to be made there from.
c.
The wages due to any seaman who enters service in the Bangladesh Navy
during the voyage and the gross amount of all deductions to be made there from.
d.
Money or other property of a sailor who died recently during the voyage
and any money recovered from the items sold, item wise.
e.
Statement of personnel effects and mainly left behind by a sailor (entering
or leaving the ship) and amount of his wages due to him.
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5.

Training
a.
A record of all drills and inspections required by any rule made under this
ordinance with an explicit record of any defects disclosed.

6.

Accident
Any collision with another ship with circumstance under which the same
a.
occurred.
b.
Every fire or boiler explosion with circumstance under which the same
occurred.
c.
A statement of any damage sustained due to fire, boiler explosion, perils of
the seas or any other reason during the voyage.
d.
Name and amount of cargo jettisoned for the safety of the crew, passenger
or the ship.
e.
Time of opening or closing of any door hinge, port holes, gangway etc
which is normally required to be kept close/open for safe navigation.

7.

Safety and Distress


a.

Any distress signal at sea received by the Master.

b.
Any occasion for not rendering assistance to any vessel or aircraft or
person in distress at sea together with his reasons for inability.
8.

Ships Particulars
a.

Certificate of deck line and load line.

b.
Particular of depth to which the ship is loaded prior sailing for the purpose
of proceeding to the sea.
c.
9.

Tonnage/space occupied by cargo.

Administration
a.

Any order made by a Marine Board.

b.

Statement of any stow away found on board.

c.

A list of documents delivered to him on taking command of the ship and

d.

Any other matter prescribed for entry in the official log.


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Q.5

When a shipping casualty is deemed to have occurred?


ANSWER

1.

Shipping Casualties.

A shipping casualty shall be deemed to occur when:

On or near the coasts of Bangladesh, any ship is lost, abandoned, stranded


a.
or materially damaged.
b.
Any ship causes loss or material damage to any other ship on or near such
coasts or within such waters.
c.
Any loss of life ensued (as a result) by reason of any casualty happening to
or on board any ship on or near those coasts or within such waters.
d.
In any place, any such loss, abandonment, stranding, material damage or
casualty as above mentioned occurs to or on board any Bangladesh ship, and any
competent witness thereof is found in Bangladesh.
e.
Any Bangladesh ship is lost or is supposed to have been lost and any
evidence is obtainable in Bangladesh as to the circumstance under which she
proceeded to sea or was last heard of.
2.
Preliminary Inquiry into Shipping Casualties. On receipt of information that
a shipping casualty has occurred, a preliminary inquiry may be held by:
a.
The Principal Officer at or near the place where the casualty occurs, or a
surveyor authorized by him if the shipping casualty occurs on or near the coasts
of Bangladesh, including the territorial waters.
b.
The Principal Officer to whom the casualty has been reported or a
Surveyor authorized by him if the shipping casualty occurs elsewhere.
3.
However, the government may appoint any person to hold a preliminary inquiry
regarding any shipping casualty.
4.

Any person holding an inquiry under this section:


a.
May go on board any ship and inspect it, not unnecessarily detaining or
delaying her from proceeding on any voyage.
b.
May, by summons under his hand, require the attendance of all such
persons as he thinks fit to call before him and examine for such purpose and may
require answers or returns to any inquires he thinks fit to make.
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c.

May enter or inspect any premises, which appear necessary for inquiry.

d.
May require and enforce the production of all books, papers or
documents, which he considers important for such purpose and,
e.
May administer oaths or may in lieu of requiring or administering an
oath, require any person examined by him to make and subscribe a
declaration of the truth of the statement made by him in his examinations.
5.
An officer making a preliminary inquiry under this section shall send a report
thereof to the government.

Q.6 What are the occasions in which a Marine Board is to be constituted for
merchant ship operating outside Bangladesh as per the provision of Bangladesh
Merchant Shipping Ordinance 1983?
ANSWER
Occasions for Constituting a Marine Board Outside Bangladesh
1.

Following occasions requires to constitute a Marine Board outside Bangladesh:


A complaint is made to a Bangladesh consular officer or senior officer of
a.
any ship of the Bangladesh Navy in the vicinity by the master or any member of
the crew of a Bangladesh ship and such complaint appears to the Bangladesh
consular officer or naval officer (, as the case may be, ) to require immediate
investigation, or
b.
The interest of the owner of a Bangladesh ship or of the cargo thereof
appears to a Bangladesh consular officer or naval officer(, as the case may be, ) to
require such inquiry, or
c.
An allegation or incompetence or misconduct (complaint) is made to a
Bangladesh consular officer or a naval officer against the master or any of the
officers of a Bangladesh ship, or
d.
Any Bangladesh ship is lost, abandoned or stranded at or near the place
where a Bangladesh consular officer or naval officer may be (?) or whenever the
crew or part of the crew of any Bangladesh ship which has been lost, abandoned
or stranded arrives at that place, or
e.
Any loss of life or any serious injury to any person has occurred on board a
Bangladesh ship at or near that place.
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2.
(The Bangladesh consular officer or the naval officer, as the case maybe, may, in
his discretion, convene a Board of Marine Inquiry to investigate the said complaint or
allegation or the matter affecting the said interest or the cause of the loss, abandonment
or the stranding of the ship or of the loss of life or of the injury to the person.)
Constitution and Procedure of Marine Board
A Marine Board shall consist of the officer convening the Board and two other
1.
members.
2.
The two other members of the Marine Board shall be appointed by the officer
convening the Marine Board from among persons conversant with maritime or
mercantile affairs.
3.

The officer convening the Marine Board shall be the presiding officer thereof.

4.
A Marine Board, shall, subject to the provisions of the Act, have power to
regulate its own procedure.
Powers of Marine Board
(While holding an enquiry, a marine board may exercise all or any of the powers
1.
specified in Section 416 (3), as may be necessary in the circumstances of the case.)
2.

A Marine Board may, after investigating and hearing the casea.


(If it is of opinion that the safety of a Bangladesh ship or her cargo or crew
or the interest of the owner of a Bangladesh ship or of the owner of the cargo
thereof requires it,) remove the master and appoint another qualified person
to act in his stead.
b.
(If it is of opinion that any master or officer of a Bangladesh ship is
incompetent or has been guilty of any act of misconduct or in a case of collision
has failed to render such assistance or that loss, abandonment or stranding of or
serious damage to any person has been caused by the wrongful act or default of
any master or ship's officer of a Bangladesh ship,) suspend the certificate of
that master or ship's officer for a stated period.
c.
Discharges a seaman from a Bangladesh ship and order the wages of any
seaman so discharged or any part of those wages to be forfeited.
d.
Decide any question as to wages, fines or forfeitures arising between any of
the parties to the proceedings.
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e.
Direct that any or all of the costs incurred by the master or owner of a
Bangladesh ship or on the maintenance of a seaman or apprentice while in prison
outside Bangladesh shall be paid out of, and deducted from, the wages of that
seaman or apprentice, whether then or subsequently earned.
f.
If it considers such a step expedient, order a survey to be made of any
Bangladesh ship which is the subject of investigation.
g.
Order the costs of proceedings before it or any part or those costs, to be
paid by any of the parties thereto, and may order any person making frivolous or
unjustified complaint.
3.
(All orders, made by a Marine Board shall be entered in the official log book of
the ship which is the subject of investigation or on board which the casualty or
occurrence or investigation took place, and be signed by presiding officer of the Board.)
A marine board, shall, in the case of every inquiry under this chapter, transmit to
4.
the government a full report to the conclusions at which it has arrived, together with
the evidence and any orders passed under this section.

Q.7 According to our merchant Shipping ordinance, what is the prescribed


procedure for registering power driven fishing vessel? What happens if such a
fishing vessel does not have a certificate of registry?
ANSWER
According to the act, every power driven seagoing fishing vessel shall be
1.
registered.
2.
The owner shall make application in prescribed form to the Register for the grant
of a Certificate of Registry in respect of the vessel. Tonnage of the vessel has to be
mentioned in the form.
3.
The Register, after enquiring, will enter in the fishing vessel register, following
particulars:
a.
b.
c.
d.
e.
f.
g.

Name of the vessel, place of built and port to which she belongs.
The tonnage ascertained.
Type of engine.
Name, occupation and address of the owner.
The letter and number assigned to the vessel.
The mortgages, if any, affected by owner in respect of the vessel.
Such other particulars as may be prescribed.
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4.
The Register will then grant the Certificate of Registry in prescribed form on
payment of specific fee.
5.

If a fishing vessel does not have a Certificate of Registry, she


a.
Shall be arrested by the Principal Officer, Surveyor or Collector of
Customs until the certificate is produced.
b.
If the vessel is not registered, then the owner or master or skipper shall be
liable to pay a fine which may extend up to 20,000/00 Taka.

Q.8

Write short note on Court of Survey


ANSWER

The owner, master or agent of a Bangladesh ship may appeal to a Court of


1.
Survey, if a Surveyor, authorized to inspect a ship
a.
Makes a statement in his report of inspection with which the owner or his
agent or the master is dissatisfied, or
b.

Gives notice under the ordinance of any defect in any ship, or

c.

Declines to give any certificate under the ordinance.

2.
A court of survey for a port shall consist of a judge sitting with two assessors.
The assessors shall be persons with nautical, engineering or other special skill
experience. One of the assessors shall be appointed by the government either generally
or for any specified case and the other shall be summoned by the Judge, out of a list of
persons prepared by the government for the purpose from time to time. If there is no
such list or if it is impracticable to procure the attendance of any person named in such
list, shall be appointed by the Judge.
3.

Powers and Procedure of Court of Survey


The judge shall, on receiving notice, appeal or a reference from the
a.
government immediately summon the assessors to meet forthwith in the
prescribed manner.
b.

The court of survey shall hear every case in open court.

c.
The judge and each assessor shall, have the same powers of inspection,
and of enforcing the attendance of witness and the production of evidence.
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d.
The judge may appoint any competent person to survey the ship and
report to the court.
e.
The judge shall have the same power as the government to order ship to be
released or finally detained; but for detaining one of the assessors has to concur.
f.
The owner and master of the ship and any person appointed by the
owner or master and also any person appointed by the government may
attend at any inspection or survey made in pursuance of this section.
g.
The judge shall report the proceedings of the court to the government
and each assessor shall either sign such report or report to the government the
reasons for his dissent.
Q.9 What do you mean by Salvage Services? Enumerate the procedure for
rendering Salvage Services to private ships in the home water of Bangladesh. 03
Q.
BNT KHADEM is ordered to render salvage service to a Singapore origin
ship near breakwater. What are the duties of CO before rendering salvage service?
ANSWER
Salvage Services
Salvage services are services rendered by persons by whose assistance a ship,
1.
its apparel (Structure), cargo, or wreck, has been saved when in danger, either at sea or
in tidal waters or on the shores thereof. It is not necessary that the danger should be
imminent. It is sufficient if, at the time when the services are rendered, the ship has
encountered any danger or misfortune which might possibly expose her to injury or
destruction if the services were not rendered.
Procedure to Render Salvage Service to Private/ Singapore Origin Ship
All officers of Bangladesh Navy ships are to afford every possible aid to vessel in
2.
danger, distress, or in want of assistance, and in saving life.
3.

They are to use their best efforts in this regard.

4.
In time of peace BN ships should not take action to the prejudice of any merchant
ship registered in the Commonwealth which may be present and capable of affording
effective help.
5.
When assistance from naval sources has been dispatched and has been accepted
by the master of the vessel, salvage operations are to proceed without delay in order to
prevent deterioration in the ships position.
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6.
Whether or not any salvage agreement has been signed, nothing which may be
done to assist the vessel can in any way prejudice the governments right to discontinue
operations or to continue on such terms only as may be agreed between the parties.
7.
When a salvage service is rendered to a private vessel by any BN ships or vessels,
the Captain or owner or agent of the private vessel should be asked to sign Salvage
Agreement Form (Lloyds Open Form).
8.
This agreement should be signed before the operations commence if reasonably
possible.
9.
Where insistence on this condition would entail danger to human life, or is for
other reasons impracticable, every endeavour should be made clear to the owner or
captain of the vessel that the services are being rendered, should then be signed later,
and, if practicable, before the termination of the salvage operations.
10. The government is entitled to claim salvage in respect of services rendered by any
government ship. Officers and men can also make claims subject to government
sanction.

Q.10 What are the contents of a salvage report made by a naval ship to the NHQ?
ANSWER
Salvage Report to NHQ
A short report of the services is to be made immediately to Naval Headquarters
1.
by signal stating in addition to the nature of the service:
a.
b.
c.
d.
e.
f.
g.
h.
j.
j.
k.

Name of the salvaged ship


Owners name
Port of Registration
Nature of Cargo
Position of the ship (where she lies)
Whether Lloyds open form signed
Whether bail or Security has been given
What is the amount of Bail or security or should be required
If Lloyds open form not signed whether arrested
Name of the agent
If salvage operation requires more than a day, it is to be informed to NHQ

2.
Arrest vessels and their crews shall be promptly released upon posting of
reasonable bond or other security.
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Q.11 How salvage claims will be recovered from a ship of foreign origin and how
will it be distributed? Write in details. What steps are required to be taken for
recovery of claims with salvage service rendered?
ANSWER
Recovery of Salvage claims from a Foreign Ship and its Distribution
All claims in respect of a particular salvage should be dealt with through an
1.
agency. When salvage is carried out to a foreign ship the government lawyer will
normally obtain bail (Payable money) to cover the claims of the government and
officers and men involved in salvage operation. Ships agent will provide the bail for
the claim.
2.
If no salvage agreement is signed or if the salvage is completed before signing
any agreement the salvage ship/cargo may be arrested until bail or security is given.
3.
If ship after salvage tries to escape without bail than an officer may be placed on
board to exercise force.
4.
If the intention of a ship is to escape without bail or security, legal actions may be
taken until bail/security has been given.
5.
However if the owner is well reputed, whether foreign or national, and salvage
agreement has been signed then such ship cannot be arrested without the authority of the
government. This provision also applies to vessels belonging to Bangladesh owners of
good reputation even if salvage agreement has not been signed.
Salvage Rendered Abroad

If the rules applicable within the country cannot be implemented abroad or if it is


not possible to communicate with the agent then some agreement to be made with the
master of the vessel to be salvaged to abide by the decision of court, should be written.

If the owner is not a Bangladeshi then the master must provide a guarantee of
reliable bank or other security to satisfy the agreement. The sum mentioned in the
agreement will depend on the circumstance but never more than of the salved
property value.

The salver and the master then make statement in writing, which need not be on
oath specifying, so as far as possible, particulars of the ship, cargo, salvage service etc.

The salver must, as soon as practicable, transmit the agreement and statement to
the court in Bangladesh in which the agreement is to be adjudicated upon.
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If the salver cannot obtain an agreement or does not get satisfactory guarantee
from the master, owner or the agent, then he may detain the property salved.

He must therefore take the vessel to a foreign port where there is a Bangladeshi
consular officer or to some port where there is a court of admiralty or a vice admiralty
court. In doing so the salver shall take into account the navigational convenience of the
ship salved as far as possible.

Within 24 hours of reaching such place, both salver and the master are to deliver
a statement containing the particulars. The statement must be on oath.

Upon receiving these statements, the consular officer or the judge must proceed
within 4 days to fix the amount of the bond for the salvage service and to cover any
additional claim to costs.

Should either party fail to give statement within 24 hours, the consular officer or
the judge may proceed exparte, but he should not, except in pressing circumstances, do
so without giving notice. If the property or vessel is to be sold he is to allow a
reasonable time for the purpose of giving the particulars of the sale. He has no power
ever to require the cargo to be unloaded.

When the amount has been determined, the parties are to be given notices to
prepare the bond.

If the owner resides in any foreign country, such additional security must be
given as the consular officer or judge may approve.

If the master or other person in charge of the salved property is still unable or
unwilling to execute the bond, in such amount on the consular officer or judge shall fix,
the salver is free to take proceedings to court and may detain the salved vessel or
property through the proper officer of the court until claim is satisfied or security given.

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Q.12 What is prize money? Narrate the procedure for distributing prize money?
ANSWER
Prize Money - 95, 98
The term Prize Money includes following all awards distributable to the naval
1.
personnel:
a.

Salvage.

b.

Awards for seizure under the:

c.

(1)

Prize Act

(2)

Foreign Enlistment Act

(3)

Customs Acts

(4)

Merchant Shipping Acts

(5)

Piracy Acts

Award from any other special service for which any reward is payable.

Salvage Awards and Distribution of Prize Money


No salvage payment/remuneration for the services of officers and men of BN
1.
without the approval of the government.
2.
Any money received to be taken on charge by Supply Officer in his cash account
under the head Naval Prize Remittance and reported immediately to the controller of
naval account for transfer to Naval Prize Account for distribution.
3.
No assignment of prize or salvage money may be made in respect of any advance
or consideration.
4.

Awards when ready for distribution to be notified in FO.

5.

Application for share to be made to NHQ.

6.
If share not claimed within 6 years from the 1st day of July following the date of
award when ready for distribution will be considered as invalid.
7.
The account is to be closed within 10 years. However, Chief of Naval Staff can
valid the invalid application within this 10 years if he wishes.
18

Q.13 What is the rule regarding salvage of government stores or property?


ANSWER
1.
If any article is lost from one of the BN ships and subsequently the article is
brought on board and the captain is satisfied that the person who brings them did not
obtain them by improper means, then he is to give a receipt for them. Particulars as to
the description, quantity and condition of the articles recovered are to be shown on
receipt and a copy is to be kept with ships store accounts in which they are taken on
charge.
2.
When losses occur of important stores which cannot be recovered by the ship or
the local naval authorities and employment of private individual or local authorities is
desirable, it should be carefully considered before a contact is entered into whether the
expenses are justified.
3.
The captain is authorized to make small payments for salvage by private
individuals without previous submission to the CNS.
4.

The following documents are required to authorize the payment:


a.

Duplicate copy of the receipt given for the articles salved.

b.

Report of survey showing condition and estimated present value of articles.

c.

Statement indicating:
(1)

The services for which the articles are expected to be required.

(2) Whether the parties claiming salvage were assisted by part of the
crew of any BN ships.
(3)

Why the crew had not been able to recover the article.

(4)

The proper amount of salvage to be paid and proposed to be paid.

5.
If the salvage value exceeds taka 75/00 then these documents are to be forwarded
by the CO to the CNS through Admin Authorities.

19

Q.14 What is Wreck? What to be done by CO of BN ships if he finds:


a.
b.
c.

A derelict or abandoned vessel at sea.


Uncharted Danger.
Navigational Danger.
ANSWER

1.
Wreck.
on the shore:

Wreck includes following when found in the sea or in tidal waters or

a.
Goods, which have been cast into sea and then sink and remain under
water.
b.

Goods, which have been cast into sea and remain floating on the surface.

c.
Goods, which are sunk in the sea but are attached to a floating object in
order that they may be found again.

2.

d.

Goods, which are thrown or abandoned.

e.

A vessel abandoned without hope or intention of recovery.

Rules to be observed by CO, if he finds a.


Derelict. If a BN ship comes across a water-logged vessel, abandoned
at sea which constitute a danger to navigation, then she is to carefully examine
whether the vessel can be towed into port or not. If not, then every effort to be
made to sink or otherwise to destroy her. While doing so, care must be taken so
that her cargo does not become a danger after release.
b.
Uncharted Danger.
If a BN ship comes across any danger in the
ordinary track of shipping which is not charted, the Captain is to collect detail
information on the danger and report the same to NHQ by signal. The info should
contain the nature, extent, position and depth of water in respect of the danger.
c.
Navigational Danger.
If a navigational danger is discovered, the
matter has to be reported to NHQ immediately by the CO of the ship. NHQ will
then arrange for necessary navigational warning to be broadcasted. The CO is
also to forward ASAP the full details of the danger on prescribed form (Form H
102- Hydrographical Note) to the NHQ for transmission to the RN Hydrographer
and for publication in the Notices to Mariners.

20

LAW OF THE SEA


Q.15 What is the legal status of Territorial Sea? What should be the maximum

breadth of the Territorial Sea? What is the outer limit of the Territorial Sea?
ANSWER
Legal Status of Territorial Sea
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 UNCLOS and to
other rules of international law.
Breadth of the Territorial Sea
Every State has the right to establish the breadth of its territorial sea up to a limit
1.
not exceeding 12 nautical miles, measured from baselines determined in accordance
with UNCLOS.
Outer Limit of the Territorial Sea
The outer limit of the territorial sea is the line every point of which is at a
1.
distance from the nearest point of the baseline equal to the breadth of the territorial sea.
Q.16 What do you mean by baseline? What is the authority of baseline for
Bangladesh? Does this authority (the Bangladesh Territorial Waters and Maritime
Zones Act 1974) have any conformation with UNCLOS-III? If so, what is your
suggestion for its solution?
Q.
How baseline of Bangladesh is measured/determined? What kind of Baseline
is applicable for Bangladesh? Give reasons in favor of your arguments. - 97
ANSWER
Baseline
A baseline is the datum line of a State from where territorial water and other
1.
maritime zones of the State are measured.
21

Authority for the Baseline of Bangladesh


1.
The authority for Baseline of Bangladesh is Bangladesh Territorial and Maritime
Zone Act 1974. Bangladesh government submitted the proposal for measuring the
baseline considering the depth method in the year of 1974 by government notification
(Order XXVI) due to the deltaic and unstable condition of our coastline. Bangladesh has
fixed the same geographical position on 10 fathom line through those coordinates the
baseline is measured. (If possible read also LOS by Rear Admiral M K Alam pages 34).
Confirmation/Conflict of Authority with UNCLOS III
1.

Base line Determination has following conflicts with UNCLOS III:


a.
Depth criteria are not in conformity with provisions of these laws. Till
1982, when the UNCLOS III was adopted, Bangladesh could not get the concept
of depth criteria accepted by the world community or our neighbors.
b.
Moreover, being a deltaic country Bangladesh adopted a method of
geographical coordinates for determining the baseline and nothing is mentioned
for the shifting of such baseline in the Territorial Waters and Maritime Zone Act
of Bangladesh.

2.

Suggestions for solution:


a.
As the depth criteria is not accepted internationally, so we have to find out
some other way in accordance with the provisions of UNCOLS-III.
b.
The law of equity may be followed to solve the dispute with the
neighboring countries.

Methods/Basis for Measuring Baseline of Bangladesh


3.

Following methods are the basis for measuring baseline of Bangaldesh:


a.
Bangladesh is a deltaic country and almost all of its entire area constitutes a
drainage basin. This geological feature of the Bangladesh coastline creates a
problem for fixing of the baseline from which the maritime zone is measured.
b.
The rules for the drawing of straight baseline are provided for in Article 7
of UNCLOS-III which states that appropriate points may be selected along the
furthest seaward extent of the low water line. Bangladesh has drawn straight
baseline under this article considering the depth criteria which was very unique
but was not adopted by any other countries. Total 8 points are selected for setting
the baseline. The line appears to follow the course of the 10 fathom line through
those coordinates the baseline is measured.
22

Q.17 Describe various kinds of Baselines in picto-graphical details.


ANSWER
Various Kinds of Baselines
1.

Baselines are determined by the following methods:


a.

Low water line or the normal baseline.

b.

Straight baseline.

c.

Unstable coastline.

d.

River mouths.

e.

Bays and Gulfs.

f.

Historic bay.

g.

Low tide elevation.

h.

Estuary

j.

Reefs.

k.

Harbors works.

l.

Rock/Islands.

m.

Roadsteads.

Low Water Line or Normal Baseline


Unless special rules apply (Except where otherwise provided in UNCLOS), the
1.
normal baseline for measuring the breadth of the territorial sea is the low water line
along the coast as marked on large scale charts officially recognized by the coastal
State.

High water level

Low water level

23

Straight Baseline - How straight baseline is drawn? (following 6 points)


1.
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
baseline joining appropriate points may be adopted in drawing baseline from which the
breadth of the territorial sea is measured.

Deeply indented

Baseline

2.
Where because of the presence of a delta and other natural conditions the
coastline is highly unstable, the appropriate points may be selected along the furthest
seaward extent of the low-water line and, notwithstanding subsequent regression of the
low-water line, the straight baselines shall remain effective until changed by the coastal
State in accordance with UNCLOS.
3.
The drawing of straight baselines must not depart to any appreciable extent
from the general direction of the coast, and the sea areas lying within the lines must be
sufficiently closely linked to land domain to be subject to the regime of internal waters.
4.
Straight baselines shall not be drawn to and from low-tide elevations, unless
lighthouses or similar installations which are permanently above sea level have been
built on them or except in instances where the drawing of baselines to and from such
elevations has received general international recognition.
5.
Where the method of straight baselines is applicable under paragraph 1, account
may be taken, in determining particular baselines, of economic interests peculiar to
the region concerned, the reality and the importance of which are clearly
evidenced by long usage.
6.
The system of straight baselines may not be applied by a State in such a manner
as to cut off the territorial sea of another State from the high seas or an exclusive
economic zone.

24

Unstable Coast Line


1.
Where because of the presence of a delta and other natural conditions the
coastline is highly unstable, the appropriate points may be selected along the furthest
seaward extent of the low-water line and, notwithstanding subsequent regression of the
low-water line, the straight baselines shall remain effective until changed by the coastal
State in accordance with UNCLOS.

Unstable coastline
River Mouths
If a river flows directly into the sea, the baseline shall be a straight line across the
1.
mouth of the river between the points on the low water line of its banks. If a river enters
the sea via estuaries (where there is tidal flow) then the baseline may be formed by the
provisions of bay theory. Again if the river mouth flows through a delta, then the
baseline may be formed by low water mark or by straight baseline.

River mouth
Bays and Gulfs
The straight line drawn at / (across) the mouth of a bay or gulf at low tide is the
1.
baseline, provided:
a.
The area of the locked water within the bay is greater than the area of a
semi circle whose diameter is equal to the length of the bay mouth.
b.
If the bay has several mouths due to island in between, same formula
applies with the only difference is, the diameter of the semi circle is taken as the
summation of the lengths of all mouths.
25

2.
If any way the locked water area is smaller than the semicircle area then this
formula does not apply.

Not applicable
Applicable
3.
However the bay mouth cannot exceed 24 NM. If the bay mouth is more than 24
NM then a closing line which makes 24 NM and the semi circle of 24 NM diameters
has an area less than the locked water within that 24 NM line, will be considered as
baseline. Two examples are given below:
a.

6NM

6NM

12NM

6+6+12+=24 NM. This case can be taken as base line if it is more than 24 NM then
cannot be taken as base line.

b.
24Nm22

24nm

>24nm

24NM line is the baseline but 28 NM line is not the baseline.


26

Historic Bay
1.
The theory of semi circle and 24 NM enclosure line rule does not apply to historic
bays. To meet the international standard for establishing a claim to a historic bay, a
nation must demonstrates the open of the bay effective, long-terms and condition of
authority over the bay and other foreign nations must agree the authority exercised by
that nation.
Low Tide Elevation
1.
A low tide elevation is a naturally formed area of land which is surrounded by
and above waters at low tide but submerged at high tide. Straight baselines are
generally not drawn from low tide elevations unless there is any permanent structure
like light house or similar installations. 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.
2.
Where 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.

Estuaries
An estuary is a partly enclosed coastal body of water with one or more rivers or
1.
streams flowing into it, and with a free connection to the open sea.
2.
If a river flows directly into the sea, the baseline shall be a straight line across the
mouth of the river between the points on the low water line of its banks. If a river enters
the sea via estuaries (where there is tidal flow) then the baseline may be formed by the
provisions of bay theory. Again if the river mouth flows through a delta, then the
baseline may be formed by low water mark or by straight baseline.

27

Reefs
1.
In the case of island situated on atolls (ring shaped islands) or of islands having
fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward
low-water line of the reef, as shown by the appropriate symbol on charts officially
recognized by the coastal State.
Drying Reefs
1.

Drying reefs means an area of reef exposed at low tide.

Rock/Islands/Regime of Island
An island is a naturally formed area of land, surrounded by water, which is above
1.
water at high tide. Island will have TS, CZ, EEZ and CS of its own, similar to land in
accordance with UNCLOS. Rocks, which cannot sustain human habitation or economic
life of their own, shall not be considered as island and therefore will have no EEZ or
continental shelf of its own.
Harbor Work/Ports/Harbors
For the purpose of delimiting the territorial sea, the outermost permanent harbor
1.
works that form an integral part of the harbor are regarded as a forming part of the
coast. Here baselines are drawn as the low water line. Example of harbor works are,
jetties, break waters etc. Off-shore installations and artificial islands shall not be
considered as permanent harbor works.

Roadsteads
Roadsteads which are normally used for the loading, unloading and anchoring of
1.
ships, and which would otherwise be situated wholly or partly outside the outer limit of
the territorial sea, are included in the territorial sea.

28

Q.18 How does Bangladesh determine her territorial water?


ANSWER
1.
According to the Bangladesh Territorial Waters and Maritime Zones Act 1974
Bangladesh decided the territorial water under the following conditions:
a.
The government may declare the limits of the territorial water beyond the
land territory and internal water of Bangladesh which shall be the territorial
waters of Bangladesh specifying 12 NM from the baseline:
(1)

From which such limits shall be measured.

(2) The waters on the landward side of which shall form part of the
internal waters of Bangladesh.
(3) Since the breadth of the territorial sea is relatively narrow, sufficient
accuracy normally is obtained by plotting the limits directly on a chart.

Q.19 How Delimitation of the Exclusive Economic Zone between States with
opposite or adjacent coasts to be done?
ANSWER
The delimitation of the exclusive economic zone between States with opposite or
1.
adjacent coasts shall be effected by agreement on the basis of international law, as
referred to the Statute of the International Court of Justice, in order to achieve an
equitable solution.
2.
If no agreement can be reached within a reasonable period of time, the States
concerned shall resort to the procedures provided for settlement of dispute.
3.
(Pending agreement as provided for in paragraph 1,) The States concerned (, in a
spirit of understanding and cooperation,) shall make every effort to enter into
provisional arrangements of a practical nature and, during this transitional period,
not to jeopardize or hamper the reaching of the final agreement. Such arrangements
shall be without prejudice to the final delimitation.
4.
Where there is an agreement in force between the States concerned, questions
relating to the delimitation of the EEZ shall be determined in accordance with the
provisions of that agreement.

29

Q.20 How delimitation of the territorial sea to be done between States with
opposite or adjacent coasts?
ANSWER
Delimitation of Territorial Sea Between States with Opposite or Adjacent Coasts
Where the coasts of two States are opposite or adjacent to each other, neither of
1.
the two States is entitled, failing agreement between them to the contrary, to extend its
territorial sea beyond the median line every point of which is equidistant from the
nearest points on the baselines from which the breadth of the territorial seas of each of
the two States is measured. The above provision does not apply, however, where it is
necessary by reason of historic title or other special circumstances to delimit the
territorial seas of the two States in a way which is at variance therewith.

Q.21 How Delimitation of the continental shelf between States with opposite or
adjacent coasts to be done? - 94, 98
ANSWER
The delimitation of the continental shelf between States with opposite or adjacent
1.
coasts shall be effected by agreement on the basis of international law, as referred to in
Article 38 of the Statute of the International Court of Justice, in order to achieve an
equitable solution.
2.
If no agreement can be reached within a reasonable period of time, the States
concerned shall resort to procedures provided for settlement of dispute under UNCLOS.
3.
(Pending agreement as provided for in paragraph 1,) The States concerned, (in a
spirit of understanding and cooperation,) shall make every effort to enter into
provisional arrangements of a practical nature and, during this transitional period, not to
jeopardize or hamper the reaching of the final agreement. Such arrangements shall be
without prejudice to the final delimitation.
4.
Where there is an agreement in force between the States concerned, questions
relating to the delimitation of the continental shelf shall be determined in accordance
with the provisions of that agreement.

30

Q.22 What is passage and innocent passage? When passage shall be considered
not innocent?
ANSWER
Passage - 00, 03
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.
Innocent Passage - 94 -96, 00-03
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 UNCLOS
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:
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.
The loading or unloading of any commodity, currency or person contrary
to the customs, fiscal, immigration or sanitary laws and regulations of coastal
State.
c.

Any exercise or practice with weapons of any kind.

d.

Any fishing activities.

e.

The carrying out of research or survey activities.

f.

The launching, landing or taking on board of any aircraft.


31

g.

The launching, landing or taking on board of any military device.

h.
Any act aimed at collecting information to the prejudice of the defence or
security of the coastal State.
j.
Any act of propaganda aimed at affecting defence or security of coastal
State.
k.
Any act aimed at interfering with any systems of communication or any
other facilities or installations of the coastal State.
l.

Any act of willful and serious pollution contrary to this Convention.

m.

Any other activity not having a direct bearing on passage.

Q.23 What rights do coastal State have in making rules regarding innocent
passage?
ANSWER
Laws and Regulations of the Coastal State relating to Innocent Passage
The coastal State may adopt laws and regulations, in conformity with the
1.
provisions of this Convention and other rules of international law, relating to innocent
passage through the territorial sea, in respect of all or any of the following:
a.
The prevention of infringement of the fisheries laws and regulations of the
coastal State.
b.
The prevention of infringement of the customs, fiscal, immigration or
sanitary laws and regulations of the coastal State.
c.
The preservation of the environment of the coastal State and the
prevention, reduction and control of pollution thereof.
d.

The conservation of the living resources of the sea.

e.

The protection of cables and pipelines.

f.

Marine scientific research and hydrographic surveys.

g.

The safety of navigation and the regulation of maritime traffic.

h.
The protection of navigational aids and facilities and other facilities or
installations.
32

2.
Such laws and regulations shall not apply to the design, construction, manning or
equipment of foreign ships unless they are giving effect to generally accepted
international rules or standards.
3.

The coastal State shall give due publicity to all such laws and regulations.

4.
Foreign ships exercising the right of innocent passage through the territorial sea
shall comply with all such laws and regulations and all generally accepted international
regulations relating to the prevention of collisions at sea.

Q.24 On what accounts the coastal State can suspend innocent passage and up to
what time?
ANSWER
Suspension of Innocent Passage
The coastal State may suspend temporarily in specified areas of its territorial sea,
1.
the innocent passage of foreign ships if:
a.
Such suspension is without discrimination in form or in fact among foreign
ships.
b.
Such suspension is essential for the protection of its security, including
weapon exercises.
c.

Such suspension takes effect only after having been duly published.

Q.25 What is transit Passage? What are the rights of other states relating to such
passage? What is the duty of States bordering States?
ANSWER
Transit Passage - 94, 96, 98, 98
Transit passage means the exercise in accordance with this part of the freedom of
1.
navigation and overflight solely for the purpose of continuous and expeditious transit of
the strait between one part of the high seas or an exclusive economic zone and another
part of the high seas or an exclusive economic zone. However, the requirement of
continuous and expeditious transit does not preclude passage through the strait for the
purpose of entering, leaving or returning from a State bordering the strait, subject to the
conditions of entry to that State.

33

Right of other States during Transit Passage


1.
Ships and aircraft enjoy the right of transit passage, which shall not be impeded;
except that, if the strait is formed by an island of a State bordering the strait and its
mainland, transit passage shall not apply if there exists seaward of the island a route
through the high seas or through an exclusive economic zone of similar convenience
with respect to navigational and hydrographical characteristics.
Duties of States Bordering Straits
1.
States bordering straits shall not hamper transit passage and shall give appropriate
publicity to any danger to navigation or overflight within or over the strait of which they
have knowledge. There shall be no suspension of transit passage.

Q.26 What are the duties of a ship or aircraft while transiting passage through an
International Strait?
ANSWER
Duties of Ships and Aircrafts during Transit Passage - 98, 99
1.

Ships and aircraft, while exercising the right of transit passage, shall:
a.

Proceed without delay through or over the strait.

b.
Refrain from any threat or use of force against the sovereignty, territorial
integrity or political independence of States bordering the strait, or in any other
manner in violation of the principles of international law embodied in the Charter
of the United Nations.
c.
Refrain from any activities other than those incidents to their normal
modes of continuous and expeditious transit unless rendered necessary by force
majeure or by distress.
d.
2.

Comply with other relevant provisions of this Part.

Ships in transit passage shall:


a.
Comply with generally accepted international regulations, procedures and
practices for safety at sea, including the International Regulations for Preventing
Collisions at Sea.
b.
Comply with generally accepted international regulations, procedures and
practices for the prevention, reduction and control of pollution from ships.
34

3.

Aircraft in transit passage shall:


a.
Observe the Rules of the Air established by the International Civil Aviation
Organization as they apply to civil aircraft; state aircraft will normally comply
with such safety measures and will at all times operate with due regard for the
safety of navigation.
b.
At all times monitor the radio frequency assigned by the competent
internationally designated air traffic control authority or the appropriate
international distress radio frequency.

Q.27 What is Hot Pursuit? Describe Right of Hot Pursuit. - 98, 00-03
ANSWER
Hot Pursuit
The hot pursuit of a foreign ship may be undertaken when the competent
1.
authorities of the coastal State have good reason to believe that the ship has violated the
laws and regulations of that State. Such pursuit must be commenced when the foreign
ship or one of its boats is within the internal waters, the archipelagic waters, the
territorial sea or the contiguous zone of the pursuing State, and may only be continued
outside the territorial sea or the contiguous zone if the pursuit has not been interrupted.
It is not necessary that, at the time when the foreign ship within the territorial sea or the
contiguous zone receives the order to stop, the ship giving the order should likewise be
within the territorial sea or the contiguous zone. If the foreign ship is within a
contiguous zone, the pursuit may only be undertaken if there has been a violation of the
rights for the protection of which the zone was established.
Right of Hot Pursuit - 98, 00-03
1.
The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive
economic zone or on the continental shelf, including safety zones around continental
shelf installations.
2.
The right of hot pursuit ceases as soon as the ship pursued enters the territorial
sea of its own State or of a third State.
3.
Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied
itself by such practicable means as may be available that the ship pursued or one of its
boats or other craft working as a team and using the ship pursued as a mother ship is
within the limits of the territorial sea, or, as the case may be, within the contiguous zone
or the exclusive economic zone or above the continental shelf. The pursuit may only be
commenced after a visual or auditory signal to stop has been given at a distance which
enables it to be seen or heard by the foreign ship.
35

4.
The right of hot pursuit may be exercised only by warships or military aircraft, or
other ships or aircraft clearly marked and identifiable as being on government service
and authorized to that effect.
5.
The release of a ship arrested within the jurisdiction of a State and escorted to a
port of that State for the purposes of an inquiry before the competent authorities may
not be claimed solely on the ground that the ship, in the course of its voyage, was
escorted across a portion of the exclusive economic zone or the high seas, if the
circumstances rendered this necessary.
6.
Where a ship has been stopped or arrested outside the territorial sea in
circumstances which do not justify the exercise of the right of hot pursuit, it shall be
compensated for any loss or damage that may have been thereby sustained.
Q.28 Define Warships. What action a coastal State may take if a warship does not
comply with its rules and regulations?
ANSWER
Warships (Art 29, 30) - 95
For the purposes of this Convention, "Warship" means a ship belonging to the
1.
armed forces of a State bearing the external marks distinguishing such ships of its
nationality, under the command of an officer duly commissioned by the government of
the State and whose name appears in the appropriate service list or its equivalent, and
manned by a crew which is under regular armed forces discipline.
Non-compliance by Warships with the Laws and Regulations of the Coastal State
If any warship does not comply with the laws and regulations of the coastal State
2.
concerning passage through the territorial sea and disregards any request for compliance
therewith which is made to it, coastal State may require it to leave the TS immediately.
Responsibility of Flag State for Damage caused by Warship or Government Ship
The flag State shall bear international responsibility for any loss or damage to the
3.
coastal State resulting from the non-compliance by a warship or other government ship
operated for non-commercial purposes with the laws and regulations of the coastal State
concerning passage through the territorial sea or with the provisions of this Convention
or other rules of international law.
Immunities of Warships and other Government Ships
With such exceptions as are contained in paragraph 2 and 3, nothing in this
1.
Convention affects the immunities of warships and other government ships operated for
non-commercial purposes.
36

Q.29 What is the specific legal regime of the exclusive economic zone? Do we have
any authority to punish any foreign ship illegally entering into our EEZ for fishing
or exploration? - 96
ANSWER
Specific Legal Regime of the Exclusive Economic Zone - 94, 95, 96
1.
The exclusive economic zone is an area beyond and adjacent to the territorial sea,
subject to the specific legal regime (established in this Part), under which the rights and
jurisdiction of the coastal State and the rights and freedoms of other States are governed
by the relevant provisions of this Convention.
Authority to Punish any Foreign Ship Illegally Entering into Our EEZ
The coastal State may, in the exercise of its sovereign rights to explore, exploit,
1.
conserve and manage the natural resources in the EEZ, take such measures, including
boarding, inspection, arrest and judicial proceeding, as may be necessary to ensure
compliances with the laws and regulations adopted by it in conformity with UNCLOS.
2.
Coastal State penalties for violations of fishery laws and regulations in the EEZ
may not include imprisonment in the absence of the country by the States concerned or
any form of corporal punishment. In case of arrest or detention of foreign vessels the
coastal State shall promptly notify the flag State of the action taken and of any penalty
subsequently imposed.

Q.30 What should be the basis of conflict resolution regarding the attribution of
rights and Jurisdictions in the EEZ?
ANSWER
Basis for the Resolution of Conflicts Regarding the Attribution of Rights and
Jurisdiction in the EEZ
In cases where this Convention does not attribute rights or jurisdiction to the
1.
coastal State or to other States within the exclusive economic zone, and a conflict arises
between the interests of the coastal State and any other State or States, the conflict
should be resolved on the basis of equity1 and in the light of all the relevant
circumstances, taking into account the respective importance of the interests involved to
the parties as well as to the international community as a whole.

a. fairness. b. principles of justice used to correct or supplement the law.


[Latin aequitas: related to equal]

37

Q.31 What right other State has on a coastal States EEZ?


ANSWER

Rights and Duties of other States in the EEZ - 00, 01, 03


1.
In the exclusive economic zone, all States, whether coastal or land-locked, enjoy,
subject to the relevant provisions of this Convention:
a.

The freedoms of navigation and overflight.

b.

The laying of submarine cables and pipelines, and

c.
Other internationally lawful uses of the sea related to these freedoms, such
as those associated with the operation of ships, aircraft and submarine cables and
pipelines, and compatible with the other provisions of this Convention.
2.
In exercising their rights and performing their duties under this Convention in the
EEZ, states shall have due regard to the rights and duties of the coastal State and shall
comply with the laws and regulations adopted by the coastal State in accordance with
the provisions of this Convention and other rules of international law in so far as they
are not incompatible with relevant part of UNCLOS.

Q.32 Discuss the rights, jurisdiction and duties of a coastal State in EEZ.
ANSWER
The Rights, Jurisdiction and Duties of a Coastal State in EEZ - 94, 95, 98-03
1.

In the exclusive economic zone, the coastal State (like Bangladesh) has:
a.
Sovereign rights for the purpose of exploring and exploiting, conserving
and managing the natural resources, whether living or non-living, of the waters
superjacent to the seabed and of the seabed and its subsoil, and with regard to
other activities for the economic exploitation and exploration of the zone, such as
the production of energy from the water, currents and winds.
b.
Jurisdiction as provided for in the relevant provisions of this Convention
with regard to:
(1) The establishment and use of artificial islands, installations and
structures.

c.

(2)

Marine scientific research.

(3)

The protection and preservation of the marine environment.

Other rights and duties provided for in UNCLOS.


38

2.
In exercising its rights and performing its duties under this Convention in the
EEZ, the coastal State shall have due regard to the rights and duties of other States and
shall act in a manner compatible with the provisions of this Convention.

Q.33 What rights a coastal State has over its contiguous zone? - 94, 99, 03
ANSWER

1.

The coastal State may exercise the control necessary to:


a.
Prevent infringement of its customs, fiscal, immigration or sanitary laws
and regulations within its territory or territorial sea.
b.
Punish infringement of the above laws and regulations committed within
its territory or territorial sea.

Q.34 What rights a coastal State has over her continental shelf? What rights other
States have over it?
ANSWER
Rights of the coastal State over the Continental Shelf - 00
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 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 nonliving resources of the seabed and subsoil together with living organisms belonging to
sedentary species.
Drilling on the Continental Shelf
The coastal State shall have the exclusive right to authorize and regulate drilling
1.
on the continental shelf for all purposes.
39

Rights of other States over Continental Shelf and Legal status of Superjacent
Waters and Air Space
1.
The rights of the coastal State over the continental shelf do not affect the legal
status of 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
freedom of other States as provided for in this convention.

Q.35 What is the right and jurisdiction of coastal State to construct Artificial
Islands, Installations and Structures in the EEZ?
ANSWER
Right and Jurisdiction of CS to Construct Artificial Islands, Installations and
Structures in the EEZ
In the EEZ, the coastal State shall have the exclusive right to construct and to
1.
authorize and regulate the construction, operation and use of:
a.

Artificial islands.

b.
Installations and structures for (the purposes provided for in article 56 and)
other economic purposes.
c.
Installations and structures which may interfere with the exercise of the
rights of the coastal State in the zone.
2.
The coastal State shall have exclusive jurisdiction over such artificial islands,
installations and structures, including jurisdiction with regard to customs, fiscal, health,
safety and immigration laws and regulations.
3.
Due notice must be given of the construction of such artificial islands,
installations or structures, and permanent means for giving warning of their presence
must be maintained. Any installations or structures which are abandoned or disused
shall be removed to ensure safety of navigation, taking into account any generally
accepted international standards established in this regard by the competent
international organization. Such removal shall also have due regard to fishing, the
protection of the marine environment and the rights and duties of other States.
Appropriate publicity shall be given to the depth, position and dimensions of any
installations or structures not entirely removed.
40

4.
The coastal State may, where necessary, establish reasonable safety zones
around such artificial islands, installations and structures in which it may take
appropriate measures to ensure the safety both of navigation and of the artificial islands,
installations and structures.
5.
The breadth of the safety zones shall be determined by the coastal State, taking
into account applicable international standards. Such zones shall be designed to ensure
that they are reasonably related to the nature and function of the artificial islands,
installations or structures, and shall not exceed a distance of 500 metres around them,
measured from each point of their outer edge, except as authorized by generally
accepted international standards or as recommended by the competent international
organization. Due notice shall be given of the extent of safety zones.
6.
All ships must respect these safety zones and shall comply with generally
accepted international standards regarding navigation in the vicinity of artificial islands,
installations, structures and safety zones.
7.
Artificial islands, installations and structures and the safety zones around them
may NOT be established where interference may be caused to the use of
recognized sea lanes essential to international navigation.
8.
Artificial islands, installations and structures DO NOT possess the status of
islands. They have no territorial sea of their own, and their presence does not affect the
delimitation of the territorial sea, the exclusive economic zone or the continental shelf.

Q.36 How a coastal State is responsible for conservation of the living resources of
her EEZ?
ANSWER
Conservation of the Living Resources of EEZ (Article 61)
The coastal State shall determine the allowable catch of the living resources in
1.
its exclusive economic zone.
2.
The coastal State, taking into account the best scientific evidence available to it,
shall ensure through proper conservation and management measures that the
maintenance of the living resources in the EEZ is NOT endangered by overexploitation. As appropriate, the coastal State and competent international
organizations, whether sub-regional, regional or global, shall cooperate to this end.
3.
Such measures shall also be designed to maintain or restore populations of
harvested species at levels which can produce the maximum sustainable yield, as
41

qualified by relevant environmental and economic factors, including the economic


needs of coastal fishing communities and the special requirements of developing States,
and taking into account fishing patterns, the interdependence of stocks and any
generally recommended international minimum standards, whether subregional,
regional or global.
4.
In taking such measures the coastal State shall take into consideration the effects
on species associated with or dependent upon harvested species with a view to
maintaining or restoring populations of such associated or dependent species
above levels at which their reproduction may become seriously threatened.
5.
Available scientific information, catch and fishing effort statistics and other data
relevant to the conservation of fish stocks shall be contributed and exchanged on a
regular basis through competent international organizations, whether subregional,
regional or global, where appropriate and with participation by all States concerned,
including States whose nationals are allowed to fish in the exclusive economic zone.

Q.37 What rights a land-locked State like Nepal and Bhutan has under LOS
convention of 1982 in the EEZ of a coastal State?
ANSWER
Rights of Land-Locked States in the EEZ - 94, 95
1.
Land-locked States shall have the right to participate, on an equitable basis, in the
exploitation of an appropriate part of the surplus of the living resources of the exclusive
economic zones of coastal States of the same sub-region or region, taking into account
the relevant economic and geographical circumstances of all the States concerned and in
conformity with the provisions of (relevant articles of) UNCLOS.
2.
The terms and modalities of such participation shall be established by the States
concerned through bilateral, sub-regional or regional agreements taking into account,
inter alia2:
a.
The need to avoid effects detrimental to fishing communities or fishing
industries of the coastal State.
b.
The extent to which the land-locked State (, in accordance with the
provisions of relevant articles of UNCLOS,) is participating or is entitled to
participate under existing bilateral, sub-regional or regional agreements in the
exploitation of living resources of the EEZ of other coastal States.
2

Among other things. [Latin]

42

c.
The extent to which other land-locked States and geographically
disadvantaged States are participating in the exploitation of the living resources of
the EEZ of the coastal State and the consequent need to avoid a particular
burden for any single coastal State or a part of it.
d.

The nutritional needs of the populations of the respective States.

3.
When the harvesting capacity of a coastal State approaches a point which would
enable it to harvest the entire allowable catch of the living resources in its exclusive
economic zone, the coastal State and other States concerned shall cooperate in the
establishment of equitable arrangements on a bilateral, sub regional or regional basis to
allow for participation of developing land-locked States of the same sub region or
region in the exploitation of the living resources of the exclusive economic zones of
coastal States of the sub region or region, as may be appropriate in the circumstances
and on terms satisfactory to all parties. In the implementation of this provision the
factors mentioned in paragraph 2 shall also be taken into account.
4.
Developed land-locked States shall, under the provisions of this article, be
entitled to participate in the exploitation of living resources only in the exclusive
economic zones of developed coastal States of the same sub region or region having
regard to the extent to which the coastal State, in giving access to other States to the
living resources of its exclusive economic zone, has taken into account the need to
minimize detrimental effects on fishing communities and economic dislocation in States
whose nationals have habitually fished in the zone.
5.
The above provisions are without prejudice to arrangements agreed upon in sub
regions or regions where the coastal States may grant to land-locked States of the same
sub region or region equal or preferential rights for the exploitation of the living
resources in the exclusive economic zones.

Q.38 What measures should a State take for the conservation of the living
resources in the high seas?
ANSWER
Conservation of the Living Resources of the High Seas -98
1.
In determining the allowable catch and establishing other conservation measures
for the living resources in the high seas, States shall:
a.
Take measures which are designed, on the best scientific evidence
available to the States concerned, to maintain or restore populations of
harvested species at levels which can produce the maximum sustainable
43

yield, as qualified by relevant environmental and economic factors, including the


special requirements of developing States, and taking into account fishing
patterns, the interdependence of stocks and any generally recommended
international minimum standards, whether subregional, regional or global.
b.
Take into consideration the effects on species associated with or
dependent upon harvested species with a view to maintaining or restoring
populations of such associated or dependent species above levels at which their
reproduction may become seriously threatened.
2.
Available scientific information, catch and fishing effort statistics and other data
relevant to the conservation of fish stocks shall be contributed and exchanged on a
regular basis through competent international organizations, whether sub-regional,
regional or global, where appropriate and with participation by all States concerned.
3.
States concerned shall ensure that conservation measures and their
implementation do not discriminate in form or in fact against fishermen of any State.

Q.39 What rights a geographically disadvantaged State like Nepal and Bhutan has
under LOS convention of 1982 in the EEZ of a coastal State?
ANSWER
Rights of Geographically Disadvantaged States - 95
Geographically disadvantaged States shall have the right to participate, on an
1.
equitable basis, in the exploitation of an appropriate part of the surplus of the living
resources of the EEZ of coastal States of the same sub-region or region, taking into
account the relevant economic and geographical circumstances of all the States
concerned and in conformity with the provisions of UNCLOS.
2.
For the purposes of UNCLOS, "geographically disadvantaged States" means
coastal States, including States bordering enclosed or semi-enclosed seas, whose
geographical situation makes them dependent upon the exploitation of the living
resources of the exclusive economic zones of other States in the sub-region or region for
adequate supplies of fish for the nutritional purposes of their populations or parts
thereof, and coastal States which can claim no EEZ of their own.
3.
The terms and modalities of such participation shall be established by the States
concerned through bilateral, subregional or regional agreements taking into account,
inter alia:
44

a.
The need to avoid effects detrimental to fishing communities or fishing
industries of the coastal State.
b.
The extent to which the geographically disadvantaged State, in accordance
with the provisions of UNCLOS, is participating or is entitled to participate under
existing bilateral, subregional or regional agreements in the exploitation of living
resources of the exclusive economic zones of other coastal States.
c.
The extent to which other geographically disadvantaged States and landlocked States are participating in the exploitation of the living resources of the
exclusive economic zone of the coastal State and the consequent need to avoid a
particular burden for any single coastal State or a part of it.
d.

The nutritional needs of the populations of the respective States.

(Thereafter may add para 3and 4 of last question.)

Q.40 Define High seas. What are the freedoms of High Seas? On which principle
our fishing fleets do fishing at High Sea?
ANSWER
High Seas - 99
All parts of the sea that is not included in the exclusive economic zone, in the
1.
territorial sea or in the internal waters of a State, or in the archipelagic waters of an
archipelagic State are called High Seas.
Freedom of the High Seas (What rights do Nepal has on High Sea?)
The high seas are open to all States, whether coastal or land-locked. Freedom of
1.
high seas is exercised under the conditions laid down by UNCLOS and by other rules of
international law. It comprises, inter alia, both for coastal and land-locked States:
a.

Freedom of navigation.

b.

Freedom of overflight.

c.

Freedom to lay submarine cables and pipelines, subject to Part VI.

d.
Freedom to construct artificial islands and other installations permitted
under international law, subject to Part VI.
e.

Freedom of fishing, subject to the conditions laid down in section 2.

f.

Freedom of scientific research, subject to Parts VI and XIII.


45

2.
These freedoms shall be exercised by all States with due regard for the interests
of other States in their exercise of the freedom of the high seas, and also with due regard
for the rights under this Convention with respect to activities in the Area. Above all the
high seas shall be reserved for peaceful purposes.
Right to Fish on the High Seas
All states have the right for their nationals to engage in fishing on the high seas
1.
subject to:
a.

Their treaty obligations.

b.

The rights and duties as well as the interests of coastal States.

c.

The provisions of UNCLOS.

Q.41 What is unauthorized broadcasting from the high seas? How unauthorized
broadcasting can be prosecuted before the Court?
ANSWER
Unauthorized Broadcasting from the High Seas
All States shall cooperate in the suppression of unauthorized broadcasting from
1.
the high seas.
2.
For the purposes of this Convention, "unauthorized broadcasting" means the
transmission of sound radio or television broadcasts from a ship or installation on the
high seas intended for reception by the general public contrary to international
regulations, but excluding the transmission of distress calls.
3.
Any person engaged in unauthorized broadcasting may be prosecuted before the
court of:
a.

The flag State of the ship.

b.

The State of registry of the installation.

c.

The State of which the person is a national.

d.

Any State where the transmissions can be received, or

e.

Any State where authorized radio communication is suffering interference.

4.
On the high seas, a State having jurisdiction in accordance with paragraph 3 may,
in conformity with article 110 UNCLOS, arrest any person or ship engaged in
unauthorized broadcasting and seize the broadcasting apparatus.
46

Q.42 What is Flag State? What is Nationality of Ship and Ship without
Nationality? What are the duties of a flag state?
ANSWER
Flag State
According to UNCLOS, ships shall sail under the flag of one state only and that
1.
one state is her Flag State. Ships shall be subject to the states exclusive jurisdiction on
the high sea.
Nationality of Ships
Ships have the nationality of the State whose flag they are entitled to fly. There
1.
must exist a genuine link between the State and the ship. Every State shall fix the
conditions for the grant of its nationality to ships, for the registration of ships in its
territory, and for the right to fly its flag.
Ship without Nationality
A ship which sails under the flags of two or more States, using them according to
1.
convenience, may not claim any of the nationalities in question with respect to any other
State, and may be assimilated to a ship without nationality.
Duties of the flag State
Every State shall effectively exercise its jurisdiction and control in administrative,
1.
technical and social matters over ships flying its flag.
2.

In particular every State shall:


a.
Maintain a register of ships containing the names and particulars of ships
flying its flag, except those which are excluded from generally accepted
international regulations on account of their small size, and
b.
Assume jurisdiction under its internal law over each ship flying its flag and
its master, officers and crew in respect of administrative, technical and social
matters concerning the ship.

3.
Every State shall take such measures for ships flying its flag as are necessary to
ensure safety at sea with regard, inter alia, to:
a.

The construction, equipment and seaworthiness of ships.

b.
The manning of ships, labour conditions and the training of crews, taking
into account the applicable international instruments.
47

c.
The use of signals, the maintenance of communications and the prevention
of collisions.
4.

Such measures shall include those necessary to ensure:


a.
That each ship, before registration and thereafter at appropriate intervals, is
surveyed by a qualified surveyor of ships, and has on board such charts, nautical
publications and navigational equipment and instruments as are appropriate for
the safe navigation of the ship.
b.
That each ship is in the charge of a master and officers who possess
appropriate qualifications, in particular in seamanship, navigation,
communications and marine engineering, and that the crew is appropriate in
qualification and number for the type, size, machinery and equipment of the ship.
c.
That the master, officers and, to the extent appropriate, the crew are fully
conversant with and required to observe the applicable international regulations
concerning the safety of life at sea, the prevention of collisions, the prevention,
reduction and control of marine pollution, and the maintenance of
communications by radio.

5.
The flag State and the other State shall cooperate in the conduct of any inquiry
held by that other State into any such marine casualty or incident of navigation.
Q.43 Write short note on Piracy and Pirate Ship or Aircraft. Who may siege a

pirate ship/aircraft at high sea?


ANSWER
Piracy- 96
1.

Piracy consists of any of the following acts:


a.
Any illegal acts of violence or detention, or any act of depredation3,
committed for private ends by the crew or the passengers of a private ship or a
private aircraft, and directed:
(1) On the high seas, against another ship or aircraft, or against persons
or property on board such ship or aircraft.
(2) Against a ship, aircraft, persons or property in a place outside the
jurisdiction of any State.
b.
Any act of voluntary participation in the operation of a ship or of an
aircraft with knowledge of facts making it a pirate ship or aircraft.

n. despoiling, ravaging, robbing. [Latin: related to prey]

48

c.
Any act of inciting or of intentionally facilitating an act described in
subparagraph a or b.
Pirate Ship or Aircraft
1.
A ship or aircraft is considered a pirate ship or aircraft if it is intended by the
persons in dominant control to be used for the purpose of committing one of the acts of
piracy. The same applies if the ship or aircraft has been used to commit any such act, so
long as it remains under the control of the persons guilty of that act.
Seizure of a Pirate Ship or Aircraft
On the high seas, or in any other place outside the jurisdiction of any State, every
1.
State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under
the control of pirates, and arrest the persons and seize the property on board. The courts
of the State which carried out the seizure may decide upon the penalties to be imposed,
and may also determine the action to be taken with regard to the ships, aircraft or
property, subject to the rights of third parties acting in good faith.
Ships and Aircraft which are Entitled to Seize on Account of Piracy
A seizure on account of piracy may be carried out only by warships or military
1.
aircraft, or other ships or aircraft clearly marked and identifiable as being on
government service and authorized to that effect.
2.
Any State which has responsible grounds for believing that a ship flying its flag is
engaged in illicit traffic in narcotic, drugs or such substances may request the cooperation of any other State to suppress such traffic.

Q.44 On what occasions the coastal State may exercise Criminal jurisdiction on
board a foreign ship through its territorial sea?
ANSWER
Occasions for Exercising Criminal Jurisdiction (Art 27) - 95
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.
49

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.
2.
The above provisions do not affect the right of the coastal State to take any steps
authorized by its laws for the purpose of an arrest or investigation on board a foreign
ship passing through the territorial sea after leaving internal waters.

Q.45 On what occasions a foreign ship can be boarded (visited) at high seas? - 01
ANSWER
Right of Visit (You may go through paragraph 2 5 as additional study)
1.
Except where acts of interference derive from powers conferred by treaty, a
warship which encounters on the high seas a foreign ship, other than a ship entitled to
complete immunity, is not justified in boarding it unless there is reasonable ground for
suspecting that:
a.

The ship is engaged in piracy.

b.

The ship is engaged in the slave trade.

c.
The ship is engaged in unauthorized broadcasting and the flag State of the
warship has jurisdiction.
d.

The ship is without nationality, or

e.
Though flying a foreign flag or refusing to show its flag, the ship is, in
reality, of the same nationality as the warship.
2.
In the cases provided for in paragraph 1, the warship may proceed to verify the
ship's right to fly its flag. To this end, it may send a boat under the command of an
officer to the suspected ship. If suspicion remains after the documents have been
checked, it may proceed to a further examination on board the ship, which must be
carried out with all possible consideration.
3.
If the suspicions prove to be unfounded, and provided that the ship boarded has
not committed any act justifying them, it shall be compensated for any loss or damage
that may have been sustained.
4.

These provisions apply mutatis mutandis4 to military aircraft.

5.
These provisions also apply to any other duly authorized ships or aircraft clearly
marked and identifiable as being on government service.
4

adv. (in comparing cases) making the necessary alterations. [Latin]

50

Q.46 Describe various Sea Zones in accordance with the LOS convention of 1982
and discuss the rights and obligations of a coastal State in each zone separately. -97
Q.
What is Continental Shelf? How a coastal State should establish the
continental margin?
ANSWER
Introduction
The Oceans of the world traditionally have been classified under the broad
1.
heading of:
a.
b.
c.

Internal waters.
Territorial seas, and
High seas.

2.
In recent year new concept of exclusive economic zone and archipelagic water
has been introduced to expand jurisdictional claims of the coastal and island States.
Maritime/Sea Zone
Under UNCLOS III waters of the Oceans have been divided into six distinct
3.
zones for a coastal or island State. These are:
a.
b.
c.
d.
e.
f.

Internal Waters.
Archipelagos Waters.
Territorial Seas.
Contiguous Zone.
Excessive Economic Zone (EEZ), and
Continental Shelf.

Internal Waters
Waters on the landward side of the baseline of the territorial sea form part of the
1.
internal waters of the State.
2.
Where the establishment of a straight has the effect of enclosing as internal
waters areas which had not previously been considered as such, a right of innocent
passage as provided in UNCLOS shall exist in those waters.
3.

The State expresses her full sovereignty over internal waters.

Archipelagic Water
An Archipelagic State is a State which consists of one or more than one group of
4.
islands, for example, Indonesia is an archipelagic nation. Such nations may draw
51

straight Archipelagic baseline joining the outer most points of their outer most islands
and drying reefs of the archipelago provided that within such baselines are included the
main islands and the ratio of water to land within the baselines is between 1:1 to 9:1.
The water enclosed within the archipelagos baselines are called Archipelagic waters.
The Territorial sea for an archipelagic nation is measured seaward from archipelagic
baseline.
5.
Ships of other nations have the right of innocent passage through this area. Hence
the maintenance of law and order in this area become a matter of international
concerned.
6.
"Archipelagic State" means a State constituted wholly by one or more
archipelagos and may include other islands.
7.
"Archipelago" means a group of islands, including parts of islands,
interconnecting waters and other natural features which are so closely inter-related that
such islands, waters and other natural features form an intrinsic geographical, economic
and political entity, or which historically have been regarded as such. - 94, 95
Archipelagic Baselines
An archipelagic State may draw straight archipelagic baselines joining the
8.
outermost points of the outermost islands and drying reefs of the archipelago provided
that within such baselines are included the main islands and an area in which the ratio of
the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to
1.
9.
The length of such baselines shall not exceed 100 nautical miles, except that up to
3 per cent of the total number of baselines enclosing any archipelago may exceed that
length, up to a maximum length of 125 nautical miles.
10. The drawing of such baselines shall not depart to any appreciable extent from the
general configuration of the archipelago.
11. Such baselines shall not be drawn to and from low-tide elevations, unless light
houses or similar installations, which are permanently above sea level, have been built
on them or where a low-tide elevation is situated wholly or partly at a distance not
exceeding the breadth of the territorial sea from the nearest island.
12. The system of such baselines shall not be applied by an archipelagic State in such
a manner as to cut off from the high seas or the exclusive economic zone or the
territorial sea of another State.

52

Territorial Waters
13. The territorial sea/territorial waters can be extended to a distance of 12 NM from
the baseline.
14. The area within this limit is also a part of the sovereign territory of the State. A
State does not have the right to the resources in another States territorial waters.
Administrative control and law enforcement as required is provided by the coastal State
of the territorial waters. Foreign vessels do have the right of innocent passage through
the territorial water.
Few Exceptions on Territorial Water
15. Islands.
An island is a naturally formed area of land, surrounded by water,
which is above water at high tide. Island will have TS, CZ, EEZ and CS of its own,
similar to land in accordance with UNCLOS.
16. Rocks.
Rocks, which cannot sustain human habitation or economic life of
their own, shall not be considered as island and therefore will have no EEZ or CS of its
own.
17. Low tide Elevation.
A low tide elevation is a naturally formed area of land
which is surrounded by and above waters at low tide but submerged at high tide
(Straight baselines are generally not drawn from low tide elevations unless there is any
permanent structure like light house or similar installations). 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. Where 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.
Contiguous Zone - 94, 99, 03
18. This is a zone contiguous/touching to the territorial sea of a coastal State, which
may not extend beyond 24 nautical miles from the baselines from which the breadth of
the territorial sea is measured.
19. The zone is not a part of the territorial waters so the State does not possess any
right and responsibility over this zone, but the State is permitted to extend its
jurisdiction to cover the zone for the purpose of customs, fiscal, legislation,
immigrations and public health. The zone can also be used by the State to carryout
operations for prevention of smuggling, drug and illegal weapons trafficking, illegal
immigration and similar acts defined as illegal in the State concerned.
53

Exclusive Economic Zone


20. The exclusive economic zone is resource related zone which is extended beyond
and adjacent to the territorial sea up to 200 nm from the baseline from where the breadth
of territorial sea is measured.
21. Its main purpose is economic i,e, exploration, exploitation, management and
conservation of natural resources of water (from current and wind forces), sea bed and
subsoil of the zone. Coastal or island State of the EEZ has the sovereign right to enforce
its law in this area for the purpose of maintaining her economic activities as mentioned
above. In addition coastal State or island may exercise jurisdictions in the zone over the
establishment and use of artificial islands, installations and structures having economic
purposes, over marine scientific researches and over some aspects of marine
environment protection. But at the same time this coastal or island State cannot
suddenly restrict the exercise of freedom of navigation in the EEZ.
Continental Shelf - 94, 95, 99, 00
22. 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 NM from the baselines from which the breadth of the territorial sea is
measured where the outer edge of continental margin does not extend up to that
distance.
23. Establishing the Continental Margin.
The fixed points comprising the line
of the outer limits of the continental shelf on the seabed, either shall not exceed 350
nautical miles from the baselines from which the breadth of the territorial sea is
measured or shall not exceed 100 nautical miles from the 2,500 meter isobath, which is
a line connecting the depth of 2,500 meters.

Q.47 What do you mean by land locked State? What implications do recently
granted transit facilities to Nepal have on regional co-operation in south Asia? - 97
(Attention is drawn on the right of land locked country on the use of Transit Facility/EEZ
Resources)

ANSWER
Definitions
1.

Land locked State means a State which has no sea coast.

54

2.
Transit State means a State, with or without a sea coast, situated between a land
locked State and the sea, through whose territory, traffic in transit passes.
3.
Traffic in transit means transit of persons, baggage, goods and means of
transport across the territory of one or more transit States, when the passage across such
territory, with or without trans-shipment, warehousing, breaking bulk or change in the
mode of transport, is only a portion of a complete journey which begins or terminates
within the territory of the land-locked State.
4.

Means of transport means:


a.

Railway rolling stock, sea, lake and river craft, and road vehicles.

b.

Where local conditions so require, porters and pack animals.

5.
Land-locked States and transit States may, by agreement between them, include
as means of transport pipelines and gas lines and means of transport other than those
included in paragraph 4. - 99
Rights of Land locked States/Right of Access to and from the Sea and Freedom of
Transit (Art 125) - 98, 99
1.
Land-locked States shall have the right of access to and from the sea for the
purpose of exercising the rights relating to the freedom of the high seas and the common
heritage of mankind.
2.
To this end, land-locked States shall enjoy freedom of transit through the territory
of transit States by all means of transport.
3.
The terms and modalities for exercising freedom of transit shall be agreed
between the land-locked States and transit States concerned through bilateral, subregional or regional agreements.
4.
Transit States, in the exercise of their full sovereignty over their territory, shall
have the right to take all measures necessary to ensure that the rights and facilities
provided for in this part for land-locked States shall in no way infringe their legitimate
interests.
Extra Reading
Land locked States will not be charged for any customs duties, taxes or any such,
5.
for the items trafficking in transit, except any service charge which has been spent or
rendered by the transit State.
6.
Charges for the means of transport and other services rendered by the transit State
to land locked State shall not be higher than the rate of charge prevailing in transit State.
55

7.
For convenience of traffic in transit, land locked States may be provided with
some free zone or custom facilities at entry and exit ports by agreement between lands
locked State and the transit State.
8.
For providing an improved facility on transport and cargo handling at port for
freedom of transit to land locked State new construction, installation or means may be
arranged.
9.
It is the responsibility of transit State to take appropriate measures to avoid delays
and other technical difficulties in trafficking in transit. Competent authority from land
locked or/and transit State to be employed to expedite or to eliminate such difficulty.
10. Ships flying flag of land locked State will get all maritime facilities in foreign
ports as like those of coastal States.

Q.47a Nepal is a land locked country. Discuss the rights of land locked States. Has
she got any right over the Bay of Bengal? State in details. - 94
ANSWER
Rights of Land Locked State (like Nepal) over EEZ/Bay of Bengal
Land locked States shall have the right to participate on an equitable basis in
1.
exploitation of an appropriate part of the surplus of the living resources of EEZ of the
coastal State of the same sub region or region, paying due respect to:
a.

The allowable catch of living resources, which are determined by the CS.

b.
No match with the coastal State, which has the right of optimum utilization
of the living resources in EEZ.
Extra Reading (61, 62, 69, 71 & 72)
Every coastal State has the rights to harvest the living resources in the EEZ. If
2.
any area remains surplus for harvesting by the coastal State, the land locked State can
harvest this surplus area for living resources provided that there is the existence of
living resource in EEZ and the fishing community is not affected. At the same time this
right to land locked State does not become objectionable to other neighboring coastal
State. The above condition is also applicable to the geographically disadvantages States.
3.
However, if the economy and livelihood of a coastal State is greatly dependent on
the exploitation of the living resources of her EEZ, the above right for land locked
States and geographically disadvantages State will not be applicable.
4.
The right mentioned above is exclusively for the land locked State or
geographically disadvantages States. These rights cannot be transferred to a 3rd State.
56

Q.48 What is resource and mineral? What are the general principles to conduct
marine scientific research? - 96
ANSWER
Definition
"Resources" means all solid, liquid or gaseous mineral resources in situ5 in the
1.
Area at or beneath the seabed, including poly-metallic nodules6.
2.
Resources, when recovered from the Area, are referred to as "minerals".
Right to Conduct Marine Scientific Research - 00
All States, irrespective of their geographical location, and competent
3.
international organizations have the right to conduct marine scientific research subject
to the rights and duties of other States as provided for in this Convention.
General Principles for the Conduct of Marine Scientific Research - 00
4.

In the conduct of marine scientific research the following principles shall apply:
a.
Marine sc research shall be conducted exclusively for peaceful purposes.
b.
Marine scientific research shall be conducted with appropriate scientific
methods and means compatible with this Convention.
c.
Marine scientific research shall not unjustifiably interfere with other
legitimate uses of the sea compatible with this Convention and shall be duly
respected in the course of such uses.
d.
Marine scientific research shall be conducted in compliance with all
relevant regulations adopted in conformity with this Convention including those
for the protection and preservation of the marine environment.
e.
Other Principles.
(1) Coastal States, in the exercise of their sovereignty, have the
exclusive right to regulate, authorize and conduct marine scientific research
in their territorial sea. Marine scientific research in the TS shall be
conducted only with the express consent of and under the conditions set
forth by the coastal State.
(2) Coastal States, in the exercise of their jurisdiction, have the right to
regulate, authorize and conduct marine scientific research in their exclusive
economic zone and on their continental shelf in accordance with the
relevant provisions of this Convention. Marine scientific research in the
EEZ and on the Continental shelf shall be conducted with the consent of
the coastal State.

adv. In its proper or original place. [Latin]


one of the resources of Area consisting of any deposit or accretion of nodules,
on or just below the surface of deep seabed, which contain mg, ni, cblt and cpr.
6

57

Q.49 What do you understand by "Pollution of the marine environment"? What


measures a Coastal State may take to prevent, reduce and control pollution of the
marine environment? - 94, 96, 99
ANSWER
Pollution of the Marine Environment - 95, 96, 98, 99
1.
Pollution of the marine environment means the introduction by man, directly or
indirectly, of substances or energy into the marine environment, including estuaries,
which results or is likely to result in such deleterious effects as harm to living resources
and marine life, hazards to human health, hindrance to marine activities, including
fishing and other legitimate uses of the sea, impairment of quality for use of sea water
and reduction of amenities.
Measures to Prevent, Reduce and Control Pollution of the Marine Environment
States shall take, individually or jointly as appropriate, all measures consistent
1.
with UNCLOS that are necessary to prevent, reduce and control pollution of the marine
environment from any source, (using for this purpose the best practicable means at
their disposal and in accordance with their capabilities, and they shall endeavour to
harmonize their policies in this connection).
2.
States shall take all measures necessary to ensure that activities under their
jurisdiction or control are so conducted as not to cause damage by pollution to other
States and their environment, and that pollution arising from incidents or activities
under their jurisdiction or control does not spread beyond the areas where they exercise
sovereign rights in accordance with UNCLOS.
3.
The measures taken shall deal with all sources of pollution of the marine
environment. These measures shall include, inter alia, those designed to minimize to the
fullest possible extent:
a.
Release of toxic, harmful or noxious substances, especially those which are
persistent, from land-based sources, from or through atmosphere or by dumping.
b.
Pollution from vessels, (in particular measures for preventing accidents
and dealing with emergencies, ensuring the safety of operations at sea,
preventing intentional and unintentional discharges, and regulating the design,
construction, equipment, operation and manning of vessels).
c.
Pollution from installations and devices used in exploration or exploitation
of the natural resources of the seabed and subsoil, in particular measures for
preventing accidents and dealing with emergencies, ensuring the safety of
operations at sea, and regulating the design, construction, equipment, operation
and manning of such installations or devices.
58

d.
Pollution from other installations and devices operating in the marine
environment, in particular measures for preventing accidents and dealing with
emergencies, ensuring the safety of operations at sea, and regulating the design,
construction, equipment, operation and manning of such installations or devices.
4.
In taking measures to prevent, reduce or control pollution of the marine
environment, States shall refrain from unjustifiable interference with activities carried
out by other States in the exercise of their rights and in pursuance of their duties in
conformity with UNCLOS.
5.
The measures taken shall include those necessary to protect and preserve rare or
fragile ecosystems as well as the habitat of depleted, threatened or endangered species
and other forms of marine life.
Q.50 What do you mean by Dumping? What activities at sea are not included in
the Dumping? What binding coastal State has to prevent to reduce and to control
of marine environment by Dumping?
ANSWER
1.

Dumping means: - 00
a.
Any deliberate disposal of wastes or other matter from vessels, aircraft,
platforms or other man-made structures at sea.
b.
Any deliberate disposal of vessels, aircraft, platforms or other man-made
structures at sea.

2.

Dumping does not include:


a.
The disposal of wastes or other matter incidental to, or derived from the
normal operations of vessels, aircraft, platforms or other man-made structures at
sea and their equipment, other than wastes or other matter transported by or to
vessels, aircraft, platforms or other man-made structures at sea, operating for the
purpose of disposal of such matter or derived from the treatment of such wastes
or other matter on such vessels, aircraft, platforms or structures.
b.
Placement of matter for a purpose other than the mere disposal thereof,
provided that such placement is not contrary to the aims of this Convention.

Measures to Prevent, Reduce and to Control of Marine Environment by Dumping


States shall adopt laws and regulations to prevent, reduce and control pollution of
1.
the marine environment by dumping.
2.
States shall take other measures as may be necessary to prevent, reduce and
control such pollution.
59

3.
Such laws, regulations and measures shall ensure that dumping is not carried out
without the permission of the competent authorities of States.
4.
States, acting especially through competent international organizations or
diplomatic conference, shall endeavour to establish global and regional rules, standards
and recommended practices and procedures to prevent, reduce and control such
pollution. Such rules, standards and recommended practices and procedures shall be reexamined from time to time as necessary.
5.
Dumping within the territorial sea and the exclusive economic zone or onto the
continental shelf shall not be carried out without the express prior approval of the
coastal State, which has the right to permit, regulate and control such dumping after due
consideration of the matter with other States which by reason of their geographical
situation may be adversely affected thereby.
6.
National laws, regulations and measures shall be no less effective in preventing,
reducing and controlling such pollution than the global rules and standards.

Q.51 A vessel transiting from India to Myanmar through Bangladeshs territorial


waters, with no intention of stopping in a Bangladeshi port. The vessel
intentionally pumps out bilges (along with oil and other toxic chemicals) into water
19 miles from the Bangladeshs coast in a sensitive marine wildlife sanctuary.
Under International Law, does Bangladesh have jurisdiction? Why or why not?
ANSWER
Preservation of Marine Environment
As per UNCLOS-III Art 56 (EEZ) paragraph 1b, Coastal state has the jurisdiction
1.
as provided for in the relevant provisions of this convention with regard to the
protection and preservation of the marine environments. The Indian vessel was 19 from
BD coast, so she was within the EEZ area. And she was pumping out bilges along with
oil and other toxic chemicals which is be prevent under Art 194 (Measure to prevent,
reduce and control pollution of the marine environment) 3a.
Q.52 Write short note on Enclosed or Semi Enclosed Sea.

ANSWER
Enclosed or Semi Enclosed Sea - 96, 99, 03
1.
"Enclosed or semi-enclosed sea" means a gulf, basin or sea surrounded by two or
more States and connected to another sea or the ocean by a narrow outlet or consisting
entirely or primarily of the territorial seas and EEZ of two or more coastal States.
60

Q.53 Does Bangladesh Territorial Waters and Maritime Zones Act 1974 have any
conflict with UNCLOS III? Show, how? What is your suggestion for its solution?
ANSWER
Conflict of the Territorial Waters and Maritime Zones Act 1974 with UNCLOS III
1.

Yes, there are conflicts with UNCLOS III. Conflicts are mentioned below:
a.

Depth criteria are not in conformity with provisions of these laws.

b.
Till 1982, when the UNCLOS III was adopted, Bangladesh could not get
the concept of depth criteria accepted by the world community or our neighbors.
c.
Moreover, being a deltaic country Bangladesh adopted a method of
geographical coordinates for determining the baseline and nothing is mentioned
for the shifting of such baseline in the Territorial Waters and Maritime Zone Act
of Bangladesh.
2.

Suggestions for solution:


a.
It is difficult to recommend any precise principles for the delimitation of
maritime boundary as we observed in recent judgments. Following may be
considered:
(1) A review on the act may be carried out in conformity with provisions
of the law of the sea.
(2) Bangladesh may claim more Continental Shelf (during proceeding
with India) than what is declared in taking advantages of new method of
calculation of Continental Shelf under UNCLOS III.
(3) As the depth criteria is not accepted internationally, so we have to
revise it in accordance with the provisions of UNCOLS III.
(4)

The law of equity may be followed to solve the dispute with India.

61

Q.54 Describe the mechanism of dispute settlement in light of UNCLOS III.


ANSWER
Obligation to Settle Disputes by Peaceful Means
States Parties shall settle any dispute between them concerning the
1.
interpretation or application of UNCLOS by peaceful means in accordance with
relevant Article of the Charter of the United Nations and shall seek a solution by the
means indicated in Charter.
Settlement of Disputes by any Peaceful Means chosen by the Parties
States Parties have the right to agree at any time to settle a dispute between them
1.
concerning the interpretation or application of UNCLOS by any peaceful means of
their own choice.
Procedure where no Settlement has been Reached by the Parties
If the States Parties which are parties to a dispute concerning the interpretation or
1.
application of this Convention have agreed to seek settlement of the dispute by a
peaceful means of their own choice, the procedures provided for in this Part apply only
where no settlement has been reached by recourse to such means and the agreement
between the parties does not exclude any further procedure.
2.
If the parties have also agreed on a time-limit, paragraph 1 applies only upon the
expiration of that time-limit.
EXTRA READING
A state party, which is a party to a dispute, may invite the other party or parties to
1.
submit the dispute to conciliation procedure. If the invitation is accepted and if the
parties agree upon the conciliation procedure to be applied, any party may submit the
dispute to that procedure. The conciliation commission, after reviewing both parties
claim, will submit a report to the UN secretary general mentioning whether a settlement
is made or not.
2.
If the invitation is not accepted or the parties do not agree upon the procedure, the
conciliation proceeding shall be deemed to be terminated.
3.
The state parties may choose one or more of the following means for the
settlement of disputes:
a.
b.
c.
d.

The international tribunal for the law of the sea (ITLOS).


The international court of justice (ICJ).
An arbitral tribunal.
A special arbitral tribunal.
62

4.
If the parties to a dispute have accepted the same procedure for the settlement of
dispute, it may be submitted only to that procedure, unless the parties otherwise agree.
If the parties to a dispute have not accepted the same procedure for the settlement of the
dispute, it may be submitted only to arbitration unless the parties otherwise agree.
Obligations under General, Regional or Bilateral Agreements
If the states parties which are parties to a dispute concerning the interpretation or
5.
application of this convention have agreed, through a general, regional or bilateral
agreement or otherwise, that such dispute shall, at the request of any party to the
dispute, be submitted to a procedure that entails a binding decision, that procedure shall
apply in lieu of procedures provided for in this part, unless the parties to dispute
otherwise agree.
Jurisdiction
A court or tribunal shall have jurisdiction over any dispute concerning the
6.
interpretation or application of UNCLOS, which is submitted to it.
7.
The Sea Bed Disputes Chamber of the ITOL, and any other chamber or arbitral
shall have jurisdiction in any matter which is submitted to it.
8.
In the event of a dispute as to whether a court or tribunal has jurisdiction, the
matter shall be settled by decision of that court or tribunal.
Experts
In any dispute involving scientific or technical matters, a court or tribunal
9.
exercising jurisdiction may select in consultation with the parties no fewer than two
scientific or technical expert chosen preferably from the relevant list prepared in
accordance with UNCLOS to sit with the court or tribunal but without the right to vote.
Provisional Measures
10. The court or tribunal may prescribe any provisional measure, which it considers
appropriate under the circumstances to preserve the respective rights of the parties to the
dispute or to prevent serious harm to the marine environment pending the final decision.
Finality and binding force of decisions
11. Any decision rendered by a court or tribunal shall be final and shall be complied
with by all the parties to the dispute. Any such decision shall have no binding force
except between the parties and in respect of that particular dispute.

63

Q.55 Discuss the genesis of UNCLOS III with particular reference to success and
failure of UNCLOS I & II. What are the new issues incorporated in UNCLOS III?
Q.
UNCLOS III protected the rights and privileges of all developed nations - if
so, comment. Did Bangladesh ratify UNCLOS III?
Q.
What is Sea Bed Dispute Chamber? What is the purpose of creating a Sea
Bed Authority under the LOS convention of 1982? How the resources of the High
Seas can be exploited under the above convention? Give your views also.
ANSWER
Introduction
The Law of the Sea is perhaps the classic example of a system of regulations,
1.
which is based on traditional demand of all seafarer nations and practiced for centuries.
Previously, naval power used to dominate the international relationship between those
seafaring nations. It was 18th century when a systematic regulation was first drawn
where the right of a coastal State to control its maritime belt and the right of all States to
make use of high sea was established.
2.
By 1930, the international lawyers thought of some specific conventions on the
use of sea and air, since these two are the most important media of transportation. At
that period the League of Nation as a world body was in existence. Unfortunately, the
League of Nations failed to do something on the use of sea.
3.
UN came into being in 1945. Soon after the formation of United Nations, the
International Law Commission (ILC) of UN General Assembly took the task of
codifying the Law of the Sea (LOS).
UNCLOS-I
International Law Commission prepared draft of 4 conventions on the law of the
4.
sea. Those were discussed among the representatives of 87 States at UN conference on
the law of the sea (UNCLOS) in Geneva in Feb-April 1958. The Conventions were:
a.
Convention on the High Seas (30 Sep 62).
b.
Convention on the Continental Shelf (10 Jun 1964).
c.
Conventions on the Territorial Sea and the Contiguous Zone (10 Sep 1964).
d.
Convention on Fishing and Convention of the Living resources of High
Seas (20 Mar 66). These 4 conventions are considered as success of UNCLOS I.
5.
The four conventions were adopted by the UN in 1958 and termed as United
Nations Conventions on the Law of the Sea (UNCLOS I) 1958. All received sufficient
ratification or accessions by states to come into force by 1966.

64

Success and Failure of UNCLOS I


6.
The 1958 Convention (UNCLOS I) did agree upon the method of measuring the
territorial seas and also upon the notion of a Contiguous Zone outside the territorial sea
whilst it failed to agree upon:
a.
b.

The breath of the Territorial Sea.


The nature and the breadth of fishery limits.

UNCLOS II
To overcome the failure of the first convention, a second convention was held in
7.
Geneva in March-April 1960. The convention was attended by 88 States and it was
termed as UNCLOS-II. This narrowly failed by 1 vote to adopt a 6-mile Territorial Sea
plus a 6-mile Exclusive or Partially Exclusive Fishery Zone for a coastal State.
8.
However, the proposals put forwarded at UNCLOS II were subsequently used as
the basis of international agreements which is considered as the success of UNCLOS II.
Many States of course, did not accept the convention. They considered that the laws
should be such that those can bring radical Change in the economy and social condition
of the International community. Some of the nations were not happy with the
conventions about the extent of Territorial sea. Some States questioned about marine
environment, Deep Seabed exploitation and sea pollutions etc. (Successes are: Identified
problem of voting principles and generated thoughts to solve the failure of UNCLOS I)
9.
International Sea Bed Committee: The developing countries were concerned
about the status of the Deep Seabed and Ocean floor beyond the jurisdiction of any
nation. It was expectation of all nations to reserve the Deep Sea bed for peaceful
purpose and for the benefit of mankind. Some of the nations were not happy with the
conventions about the extent of Territorial sea. Some states questioned about marine
environment, Deep seabed exploitation, and sea pollutions etc.
UNCLOS III
10. After consultation and negotiation between more than150 nations, the Sea Bed
Committee worked out a draft treaty and placed it before the UN General Assembly in
1982. The treaty came into being on 10 August 1982 as UNCLOS III, where 119
nations including Bangladesh signed on that date. Forty other nations signed the treaty
within next 2 years time that is a total of 159 nations signed the treaty. Again some
confusion and disagreement still prevailed in the treaty, which took about 12 years to be
resolved. Finally on 16 NOV 94 the UNCLOS III came into being in full swing.
11.

Bangladesh has ratified the Convention of Part XI in 27 July 2001.


65

12. Successes & failures of UNCLOS III:


Consists of nearly 100 terms, 320
Articles and more than 109 articles of its annex. Successes are: Solved issues of
UNCLOS I & II, covered peaceful settlement of dispute, recognized ICJ, ITLOS and
termed as constitution for the Ocean. Their failures are: Cannot handle activities of lone
super power in the unipolar world, Consensus against blockade not achieved, though sea
mine issue is addressed but still in dark. In addition, it consists of two international
bodies:
a.
International Sea Bed Authority.
b.
International Tribunal for the LOS.
13. International Sea Bed Authority (ISBA). The task of this international body of
UNCLOS is to regulate the following:
a.
The exploration and exploitation of seabed, which is beyond the limit of
any nations jurisdiction.
b.
To safeguard the seabed for the common benefit of the humanity.
c.
To setup enterprise for exploration.
14. International Tribunal for the LOS.
This international body will have a
Sea Bed Dispute Chamber to deal with all sort of dispute involving the International Sea
Bed area.
Problem of UNCLOS-III
15.

The problems of UNCLOS III are:


a.
Some of the nations were not happy with the conventions about the extent
of Territorial sea.
b.
Some states questioned about marine environment, Deep Seabed
exploitation and sea pollutions etc.
c.
However some developed and industrialized states raised objection about
the articles on seabed mining and refused to sign the convention.
d.
Again some confusion and disagreement still prevailed in the treaty, which
took about 12 years to be resolved.

Important Agreements reached at UNCLOS III


16.

Followings are some of the important agreements reached at UNCLOS III:


a.
Every State has the right to establish the breadth of its territorial sea up to a
limit not exceeding 12 nautical miles.
b.
Contiguous zone up to 24 nautical miles from the baseline for purposes of
enforcement of customs, fiscal, immigration, or sanitary laws.
c.
Exclusive economic zone up to 200 nautical miles from the baseline for the
purposes of exploring and exploiting, conserving and managing the natural
66

resources, whether living or non-living, of the waters superjacent to the seabed


and of the sea-bed and its subsoil.
d.
The resources of the seabed and ocean floor and subsoil thereof beyond the
limits of national jurisdiction are the common heritage of mankind.
e.
An International Seabed Authority will organize, carry out, and control
activities associated with the exploitation of the resources of the international
seabed.
f.
A parallel system will be established for exploring and exploiting the
international seabed, one involving private and state ventures and the other
involving the authority.
g.
A so-called enterprise will carry out activities in the international seabed
for the authority and will be responsible for transporting, processing, and
marketing minerals recovered from the international seabed.

Q.56 UNCLOS III is a Constitution for the Ocean Justify with your own
argument in logical sequence.
ANSWER
The United Nations Conference on the Law of the Sea III
On 01 November 1967, Malta's Ambassador to the United Nations, Arvid Pardo,
1.
in a speech to the United Nations General Assembly, he spoke of the super power
rivalry that was spreading to the oceans, of the pollution that was poisoning the seas, of
the conflicting legal claims and their implications for a stable order and of the rich
potential that lay on the seabed. Pardo's urging came at a time when many recognized
the need for updating the freedom-of-the-seas doctrine. It set in motion a process that
spanned 15 years and saw the creation of the United Nations Seabed Committee, the
signing of a treaty banning nuclear weapons on the seabed, the adoption of the
declaration by the General Assembly that all resources of the seabed beyond the limits
of national jurisdiction are the common heritage of mankind. What started as an
exercise to regulate the seabed turned into a global diplomatic effort to regulate and
write rules for all ocean areas, all uses of the seas and all of its resources. These were
some of the factors that led to the convening of the Third United Nations Conference on
the Law of the Sea, to write a comprehensive treaty for the oceans.
2.
The Conference was convened in New York in 1973. It ended nine years later
with the adoption in 1982 of a constitution for the seas - the United Nations Convention
on the Law of the Sea. During those nine years, shuttling back and forth between New
York and Geneva, representatives of about 160 sovereign States sat down and discussed
the issues, bargained and traded national rights and obligations in the course of the
marathon negotiations that produced the Convention.

67

3.
United Nations Convention on the Law of the Sea III is constitution for the Ocean
because the major achievement of UNCLOS III can be summarized as follows:
a.
Setting Limits.
It has established the territorial sea of maximum 12
miles distance from the baseline with complete sovereignty for coastal state with
provision of innocent passage for foreign vessel.
b.
Navigation. It has created the concept of transit passage for international
straight, with the right to passage of warship, submarine and over flight for
aircraft.
c.

Archipelagic Water.

It has legitimized the concept of archipelagic water.

It has introduced the concept of EEZ 200


Exclusive Economic Zone.
d.
miles where the coastal states shall have exclusive authority to manage the living
and nonliving resources but retain the high sea status. Land lock and
geographically disadvantageous State have certain right for fishing.
e.
Continental Shelf. It has established continental shelf for coastal State up
to 200 miles; some cases 350 miles or beyond but legal status of superjacent
waters and airspace above would not be affected.
f.
The Exploitation Regime.
High seas freedom was confirmed but
subject to the rights granted concerning the scientific research and construction of
the artificial islands.
g.
The Question of Universal Participation in the Convention. It was
achieved.
h.

Marine Environment. The protection of the marine environment ensured.

j.

Scientific Research. Broad system for marine scientific research enhanced.

Pioneer Investors, Technological Prospects, Deep Seabed Mining and


k.
Settlement of Disputes. The Area and resources outside national jurisdiction is
declared as the common heritage of mankind and all activities shall be carried out
for healthy development of world economy, balanced growth of international
trade and promotion of international cooperation for global development
particularly of the developing states. For the management of resources in this area
an international sea bed authority, with an executive organ named the Enterprise
and a comprehensive dispute settlement system for seabed problem has also been
incorporated.
4.
It is clear that, the adoption of UNCLOS has created a complete guideline
regarding the use of maritime resources by individuals, organizations and states all over
the world. Thereby it is justified to say that UNCLOS III is a Constitution for the
ocean.

68

Q.57 What do you understand by treaties, International Law & Customary Law?
ANSWER
Treaty
A treaty is an agreement under international law entered into force by actors in
1.
international law, namely States and international organizations. Treaties may also be
known as: international agreements, protocols, covenants, conventions, exchanges of
letters, exchanges of notes, etc. Regardless of the terminology, all of these international
agreements under international law are equally treaties and the rules are the same.
Treaties can be loosely compared to contracts: both are means of willing parties
assuming obligations among themselves, and a party to either that fails to live up to
their obligations can be held liable under international law for that breach. Because of
this rule, treaties and statutes can override each other, whichever is latest in time is
controlling.
International Law
2.

International law can refer to three distinct legal disciplines:


a.
Public international law concerns the structure and conduct of sovereign
states, analogous entities and intergovernmental organizations for instance the
United Nations, international maritime law, international criminal law and the
Geneva conventions.
b.
Private international law or conflict of laws is a set of procedural rules
that determines which legal system and which jurisdictions applies to a given
dispute. The rules typically apply when a legal dispute has a "foreign" element
such as a contract agreed to by parties located in different countries.
c.
The law of supranational organizations, which concerns at present
regional agreements. The special distinguishing quality is that laws of nation
states are held inapplicable when conflicting with a supranational legal system.

Customary Law
In law, custom can be described as the established patterns of behavior that can
3.
be objectively verified within a particular social setting. Generally, customary law exists
where a certain legal practice is observed; the relevant actors consider it to be law. The
modern codification of civil law developed out of the customs, expressions of law that
developed in particular communities, slowly collected and written down by local jurists.
4.
In international law, customary law refers to the law of Nations or the legal norms
that have developed through the customary exchanges between States over time,
69

whether based on diplomacy or aggression. Some principles of customary law have


achieved the force of peremptory norms, which cannot be violated or altered except by a
norm of comparable strength. These norms are said to gain their strength from universal
acceptance, such as the prohibitions against genocide and slavery. Customary
international law can be distinguished from treaty law, which consists of explicit
agreements between nations to assume obligations. However, many treaties are attempts
to codify pre-existing customary law.
5.
Customary law may also be relevant within jurisdictions following another legal
tradition. Customary law is also used in some third world countries, such as in Africa,
usually used alongside common or civil law.

Q.58 Why UNCLOS III adopted Consensus as the principal means by which
decisions were to be taken in its Rules of Procedure?
ANSWER
UNCLOS III adopted Consensus as Principal Means in its Rules of Procedure
In late 1973, in third United Nations conference on the law of the sea was
1.
convened in accordance with General resolution 3067 (XXVIII) of 16 November 1973,
and set about its task with an organizational session. The first order of business was the
question of procedure: procedural practices had to be developed which would foster the
cohesiveness of the package of the Law of the Sea. Indeed the procedural innovations of
the conference were at times quite unique and have no doubt contributed to the
progressive development of the treaty making process itself.
2.
As a consequence of the deliberations, the conference adopted its rules of
procedure. Since the earlier committees has worked on the basis of consensus and as a
result of the widely divergent interest on issues of such paramount importance, it was
recognized that resort to traditional voting rules would be unsatisfactory as a method for
achieving the desired goals. Consensus was therefore adopted as the principal means by
which decisions were to be taken. This notion was embodies in the declaration
incorporating the gentlemans agreement, appended to the rules of procedure and
provided the context in which the rules themselves were framed.
3.
The rules of procedure and the Gentlemans Agreement appended to them not
only contemplated the application of consensus with regard to the final adoption of the
convention a whole, but also for its application at each and every step along the way.
The consensus principle was in fact applies throughout the work of the conference and
many revision of the text which would become the treaty. In some cases specific
informal conference practices were formally introduced, notably in the later stages of
the work when only the more thorny issues remained to be resolved, in order to foster
agreement and to ensure that there would be no objection to decisions taken.
70

Q.59 Narrate the latest progress of maritime boundary delimitation of Bangladesh


with India.
PROGRESS OF MARITIME BOUNDARY DELIMITATION
INTRODUCTION
1.
Bilateral negotiations commenced in 1974 with India. After a lapse of 34 years,
bilateral negotiations were held with India in September 2008, March 2009 and January
2010. The impasse remained. The discussions did not yield any positive result.
2.
Bangladesh, India and Myanmar ratified the 1982 UN Convention on the Law of
the Sea (UNCLOS). Bangladesh ratified in July 2001, India in 1995 and Myanmar in
1996. They accepted the rules of UNCLOS and laws of international law on the subject
matter, including the dispute settlement mechanism.
3.
India did not accept the jurisdiction of International Tribunal and opted for
arbitration tribunal under Annex VII. On October 8, 2009, Bangladesh initiated
arbitration proceedings against India. In February, the president of the tribunal
appointed three arbitrators for Bangladesh and India each nominated one arbitrator as
per the procedure. In May 2011, the president of the arbitral tribunal called India and
Bangladesh to attend a meeting to fix a time table of submission of their pleadings and
rejoinders. The decision was as follows:
a.
b.
4.

Bangladesh had to lodge its statement of claim by May 2011.


India was due to respond by May 2012.

The decision of the proceeding may take five years.

5.
The first issue is that the proceedings will address important equity and
equidistance method in defining Exclusive Economic Zone in the Bay of Bengal.
Having the concave coast of Bangladesh and also taking into account Bangladeshs
position as lateral/adjacent state with India and Myanmar (as opposed to India and Sri
Lanka), Bangladesh strongly argues that equidistance method is not suitable as a
starting point in delimiting maritime boundary in the Bay of Bengal.
6.
Much of the continental shelf claimed by Bangladesh can be argued to be the
deposit of silt through the rivers through Bangladesh (1.8 - 2 billion tons of silt
annually) forming the continental shelf, which is arguably a natural prolongation of the
landmass of Bangladesh in the southward direction. Bangladesh further argues that if
India insists on equidistance method, Bangladesh will be affected by cut-off that will
turn a coastal country into a sea-locked nation without any opening to high seas, and
will not be able to claim additional 150 miles of continental shelf.
71

7.
The interpretation of customary international law of maritime delimitation as
embodied in the 1969 ICJ judgment and Articles 74 and 83 of UNCLOS provide
strength to Bangladeshs above argument, and that equity has emerged as an integral
part of law in maritime delimitation. State may take recourse to various factors to
achieve and equitable solution.
8.
In 1969, the ICJ ordered the parties (Denmark, Germany and Netherlands) to
negotiate the boundary by application of equitable principles so as to avoid the cut-off
for Germany that would result from equitable method. The court stated: Delimitation is
to be effected by agreement taking into account all relevant circumstances .including
general configuration of the coast of the parties, physical and geological structure.
9.
It is noted that the Indias claim in the Bay of Bengal constitutes about 5-7% of
their total maritime zone, and Myanmar claim could be no more than 15% of its total
claim while Bangladeshs stake is 100% in the Bay of Bengal. A corollary issue before
the tribunal is whether the baselines drawn by Bangladesh, India and Myanmar are
consistent with the provisions of UNCLOS. While Bangladesh objects to Indias and
Myanmars description of baselines, they also do not accept Bangladeshs baseline.
Meanwhile lodgment of proceedings with the arbitration does not preclude bilateral
discussions with India.
CONCLUSION
10. The reference to the UNCLOS dispute machinery is a positive development in
stark contrast to the stagnation of maritime talks between Bangladesh and its neighbours
for more than two decades. Solution of maritime boundary issues will finally allow
establishment of rightful claim over EEZ and continental shelf. The issues of
delimitation of maritime boundary with India may also be taken up in the light of Law
of the Sea and other international rules.

Q.60 EEZ has become an important factor for the existence and future
development of a country. Justify this statement.
ANSWER
The Exclusive Economic Zone is a zone extending up to 200 NM from the
1.
baseline within which the coastal States enjoy extensive rights in relation to natural
resources and other jurisdictional rights and third State enjoys the freedom of
navigation, overflight by aircraft and laying of the cables and pipelines. The EEZ is a
concept of recent origin.

72

2.
The universal establishment of 200 miles EEZ would embrace about 36% of the
total area of the sea. Although it is relatively small proportion, the area falling within
200 miles limit contains over 90% of all commercially exploitable fish stocks, about
87% of the worlds known submarine oil deposits, about 10% of nodules. Moreover, a
large proportion of marine scientific research takes place within 200 miles of the coastal
area. Virtually all the major shipping routes of the world pass through the EEZ of states
other than those in which the ports of departure and destination are situated. In view of
these extensive activities within 200 miles of land, the legal regime of the EEZ as
provided by the law of the sea convention is obviously of critical important.
Q.61 Why USA did not ratify the UNCLOS?
ANSWER
Part XI of the Convention has established an International Seabed Authority
1.
(ISA) regime relating to minerals on the seabed outside any state's territorial waters or
EEZ (Exclusive Economic Zones). Accordingly ISA will authorize seabed exploration
and mining and collect and distribute the seabed mining royalty.
2.
According to USA, the treaty gives rise to a dangerous new type of governing
body. This International Sea Bed Authority (ISA) is the regime which will exercise full
sovereign rights to the ocean floor under international waters, charging private citizens
wishing to conduct mining operations a six figure application fee. All private mining
operations to be approved and monitored by Authority, with provision of sharing a
percentage of all resources (or monetary equivalent) with the ISA.
3.
The United States objected to the provisions of Part XI of the Convention on
several grounds in general and on the authority of ISA in particular, arguing that the
treaty was unfavourable to American economic and security interests. Thereby they
refused to ratify the UNCLOS, although it expressed agreement with the remaining
provisions of the Convention.

Q.62 When and on what principle Bangladesh declared its baseline? Is it


justifiable under Law of the Sea? Explain why/why not. Describe various aspects
which were promulgated by our government in the declaration?
ANSWER
Various Aspects of the Act
In exercise of the powers conferred by the Territorial Waters and Maritime Zones
1.
Act, 1974 (Act No XXVI of 1974) and in suppression of any previous declaration on the
subject, the government declared that the limits of the sea beyond the land territory and
internal waters of Bangladesh shall be the territorial waters of Bangladesh. The limits of
73

the territorial sea shall be twelve nautical miles measured seaward from the baseline so
that each point of the outer limit of the territorial sea to the nearest point inward on the
baselines is twelve nautical miles. The baselines from which territorial waters shall be
measured seaward are the straight lines linking successively the baseline points
(geographical co-ordinate) are set out below:

N.1
N.2
N.3
N.4
N.5
N.6
N.7
N.8

Latitude
211200 N
21 1500 N
21 -2900 N
21 2100 N
21 1100 N
21 0730 N
21 1000 N
21 2100 N

Longitude
89 0645 E
89 1600 E
89 3600 E
89 5500 E
90 3300 E
91 0600 E
91 5600 E
92 1730 E

In exercise of the powers of the Territorial Waters and Maritime Zones Act, 1974
2.
(Act XX-VI of 1974) the government also declared that the Zone of high seas extending
to 200 nm measured from the baselines shall be the economic zone of Bangladesh.
3.
The straight baseline for Bangladesh has been drawn on 10 fm or 60 feet of water
(depth criteria) probably considering the peculiar deltaic and deeply indented coastline.
From the baseline the 12 nm territorial water belt was also established. The government
also declared a zone of high seas extending to 200 nm measured from the baseline as the
economic zone of Bangladesh. Bangladesh therefore had established in 1974 exclusive
rights of exploring and exploiting marine resources in the Economic Zone, i.e. an area
of about 40,000 Sq miles almost equal to 2/3 of our total land area. From the above, it
can be seen that the government of Bangladesh declared such zones long before the
UNCLOS-III established various maritime zones. Specially establishment of baseline on
depth criteria was very unique and was not adopted by any other country till then.
4.
The UNCLOS-III was at a very early state in 1974 when Bangladesh framed the
rule of baseline. But till 1982, when UNCLOS-III was adopted, Bangladesh could not
get the concept of depth criteria accepted by the world community or by our neighbours
(as all decisions in the UNCLOS-III were taken by consensus). Bangladesh originally
suggested the Appropriate Points as the furthest seaward extent of submerged
sedimentary delta but the submerged point is invisible so that the traditional visibility
criteria prevailed. Where presence of delta causes unstable coastlines Appropriate
Points may be selected along furthest seaward extend of the low-water line, was
incorporated by Bangladesh to protect the interest of deltaic countries having continual
fluvial erosion and sedimentation. Because of Bangladesh proposal accepted on Article
7 & 8 of UNCLOS-III on delta baselines, Article 9 of UNCLOS-III does not apply to
the cases where a river forms a delta and other natural conditions or unstable
74

coastline. Also, a river flows directly into the sea without forming estuary and
therefore, this Article does not apply in many cases of river mouths where estuaries are
usually found, particularly in the tidal mouths of great rivers. Also there is the lack of
rules on where exactly along banks of river are the closing points and the maximum
length of closing lines.
Implications on Bangladesh
What then are the implications of the law of the sea on our Territorial and
1.
Maritime Zone Act, upon careful scrutiny, following observations can easily be made:
a.
The baseline set out in 10 fm or 60 ft of water was not in conformity with
provisions the law of the sea and hence needs review.
b.
Bangladesh can claim 24 nm of contiguous zone as against 6 NM declared
under the Act of 1974.
c.
Bangladesh may claim more continental shelf then what is declared in the
Act, taking advantage of new methods of calculation of continental shelf under
UNCLOS III (Para 7g and also Annex II of UNCLOS-III which provides
different system of calculation of continental margin only for the Bay of Bengal).
d.
Review of the term conservation zone along with the enacted punishment
may be necessary.
e.
In one case three foreign Trawlers seized by Bangladesh Navy were set
free as the court observed that Customs water as stated in section 2 (p) of
Custom Act 1969 means the waters extending into the sea to a distance of 12 nm
measured from the appropriate base line on the coast of Bangladesh. It was
therefore 12 miles belt of the sea, starting from the base line which was the
material point for consideration in that case. If any act, as alleged, done by the
trawlers within this 12 miles zone i,e, Customs waters, Sea-belt of 12 miles from
the base line as defined in the Territorial Waters and the Maritime Zone Act is
synonymous with the Customs waters as defined into the Customs Act. Trawlers
in question were not found within the Customs Water and Territorial Water of
Bangladesh but were found within the economic zone and as such the
punishment provided in the Customs Act could not be inflicted upon the trawlers.
It is to be seen whether the unauthorized act of the trawlers done in the
economic zone is punishable under any other law being enforced in
Bangladesh. So the present base line was not effective and new rules may be
framed or updated so that such situations are avoided.
f.
Bangladesh has ratified the part XI of convention in July 2001 and now we
must carry out region survey to establish the claim with CLCS of continental
shelf up to 350 nm.
g.
Bangladesh could settle the maritime boundary delimitation with Myanmar
in last Apr and with India it is in progress. It may be possible to delimit maritime
75

boundary with India under the UNCOLS-III by 2014. This will help us in
exploring the untapped resources of the Bay of Bengal for our sustenance.
Solution of Maritime boundary issues will allow establishment of rightful claim
over EEZ and continental shelf.
h.
The issue of south Talpatti may also be solved in the light of UNCLOS III
and other international rules with the delimitation of the maritime boundary with
India by 2014.
Delimitation of Maritime Boundary with India
It is extremely difficult to recommend any precise principle of delimitation as
2.
might be applied in future to boundary issue of Bangladesh. Each delimitation involves
a situation that has its own unique characteristics to be taken into account, previous
practice and decisions will at best point to the kind of factors to be considered and
approach to be adopted will not permit the deduction of a precise boundary line which
must be applied. In the case of delimitation between opposite States facing each other
the normal practice has been to agree upon the median line, equidistant from the nearest
point of the opposing states shores, as the boundary. In addition, some maritime
boundaries between adjacent States follow the line of latitude passing through the point
where the land boundary meets the sea. It is the common practice at present to set
boundaries by reference to geographical coordinates for the sake of certainty and
simplicity and such determinations almost inevitably demand some departure from the
exact median line or other criterion.
3.
Our coastline being concave in nature, rules of special circumstances as per
Article 15 may be applied for delimitation of maritime boundary between adjacent
states. As the boundary line is justified by special circumstances and the boundary of
EEZ with Myanmar is settled, so the boundary continental shelf may be determined by
applying equidistant plus general circumstances principle. Many EEZ and continental
shelf boundaries have been settled by agreement between states accepting that
obligation under the Convention. Rights to the continental shelf are inherent and this
must be recognized in delimitations. Delimitation by agreement remains the primary
rule of international law. Any delimitation whether agreed or determined by a third
party, must result in an equitable solution and there is no limit to the factors relevant to
determination of equitableness.
4.
In practice, geographical considerations are coming to predominate, and the
existence of a significant disproportion between the relative maritime areas attaching to
the states and the relative lengths of their coastlines is likely to be taken as a sign of
inequity. Other factors, such as economic, ecological, security and geomorphologic
factors are given less weight. Article 74 and 83 or UNCLOS-III contain no reference to
equidistance, which may now be applied only in so far as it leads to an equitable
solution. Although it is generally desirable that EEZ and continental shelf boundaries
should coincide the fact that article 1974 of the Law of the Sea conventions stipulates
that such boundaries should represent an equitable solution will in many cases make it
76

more difficult to agree on a common boundary. A boundary that might be equitable for
EEZ purpose may not be equitable for continental shelf purpose because of the different
consideration that are relevant to achieving an equitable solution in each case.

Q.63 Justify significance of UNCLOS to the protection marine environment.


Explain its relevance to Bangladesh.
ANSWER
1.
The significance of UNCLOS to the protection of marine environment is very
well justified which is narrated in following subsequent paragraph.
Legal Framework for the Marine Environment
One of the primary objectives of UNCLOS is the establishment of a legal order
2.
designed to facilitate peaceful uses of the seas and oceans and the protection and
preservation of the marine environment. The Convention devotes an entire Part XII,
consisting of 46 articles - to the protection and preservation of the marine environment.
In addition, several other articles contain provisions relating to the subject. All the
relevant provisions emphasized the point that they are not merely a restatement of
existing conventional law or practice but are constitutional in character.
Model for International Environmental Law
The Convention contains several new or emerging principles and concepts for
3.
addressing expanding problems of global environment and thereby constitutes a most
advanced set of international rules in the field of environmental protection. The
Convention therefore is likely to serve as a model or a foundation on which
international law on various aspects of the environment will be developed. It is already
becoming apparent that the provisions of the Convention are providing guidance on the
fundamental rules relating to State obligations to protect and preserve their own and the
wider environment.
Authority to Adopt and Implement Laws
Article 208 to 212 codifies the rights to the coastal state to adopt laws and
4.
regulations to prevent, reduce and control pollution from various sources. These laws
will then be no less effective than international rules. The article also suggests that
states shall harmonize their policies in the appropriate regional level. Article 213 to 222
gives authority to the sates to enforce their adopted laws and regulations and to take
other measures necessary to implement applicable international rules and standards.

77

Obligations and Breaching of Obligations by Coastal States


5.
Article 192 stated the fundamental obligation of States in relation to the world's
marine environment to protect and preserve the marine environment. Article 193 sets
this general obligation to the right of States to exploit natural resources pursuant to their
environmental policies and in accordance with their duty to protect and preserve the
marine environment. Art 192 and 193 also reflects that a State breaching its obligation
to protect and preserve the marine environment would be in breach of international law.
Degree of Responsibility
Art 194 is expressly concerned with all sources of pollution of the marine
6.
environment and states are directed to take all measures necessary "to prevent, reduce
and control pollution of the marine environment from any source". Although all states
bear the same degree of responsibility, economic and infrastructural differences
between states are also recognized in article 194. Articles 194 and 196 said that States
are required to take all necessary measures using "the best practicable means at their
disposal and in accordance with their capabilities".
Global and Regional Cooperation
The convention has been expressly designed to operate as an "umbrella" for
7.
further global, regional and national actions. For example, section 2 of that Part is
entitled "Global and regional co-operation" where Art 197 direct States to co-operate on
a global and, as appropriate, on a regional basis, "taking into account characteristic
regional features.
Conservation beyond National Jurisdiction
The Convention accords the highest priority to the proper conservation and
8.
management of living resources not only in maritime areas under the national
jurisdiction of States but also in maritime areas beyond national jurisdiction. Thus, in
the exclusive economic zone and on the high seas, States are under an obligation to take
conservation measures designed to maintain or restore the living resources.
Transfer of Science and Technology
The Convention lays emphasis on the need to promote and provide technical
9.
assistance in maritime matters to developing states for the minimization of the effects of
major pollution incidents, and for making environmental assessments. Thus, the
Convention fully recognizes the important role of the transfer of technology in the fight
against pollution, especially pollution of the marine environment.

78

Preferential Treatment
10. Art 202-203 states the obligations to provide scientific and technical assistance to
developing States for the purpose of combating pollution, international organizations
especially are urged to grant preferential treatment to developing countries in the
allocation of funds and technical assistance and in the utilization of their specialized
services.
BANGLADESH PERSPECTIVE
Sources and Effect Marine Pollution
11. Bangladesh is situated at the apex of the Bay of Bengal. She has vast coastal area
of more than 40,000 sq miles with a coastline of 710 km and 200 nm of EEZ. The entire
Bangladesh is drained by three river system, namely Ganges, Brahmaputra and Meghna.
Bangladesh coastal area has one of the largest mangrove ecosystems in the world and
the best among the tropical forests. The offshore marine water considered being one of
the best productive zones for fisheries in the world because of the presence of the
Sundarbans mangrove forest. This unique ecosystem is threatened today because of the
pollution both from land based and marine sources. Most of the pollutants are in the
form of industrial waste, agro-chemical residues and pollutants discharged from ships
and boats. Moreover, it also believed that our sea area has been used since long time for
dumping toxic and other wastes by the industrial countries because of the absence of
any monitoring system.
Impediments to Control of Marine Pollution
12. In real sense, Bangladesh is severely lacking in protecting the marine
environment in the EEZ. A few of the many problems that Bangladesh faces are
discussed below:
a.
Bangladesh have neither ratified the UNCLOS III nor has signed any other
international conventions that deal with or provide legal and other assistance in
case of marine pollution. Therefore, she cannot take any action even if any
accident like oil spillage occurs.
b.
There is no effective law to deal with the marine environment pollution in
the EEZ at present.
c.
Bangladesh does not possess the required technology to monitor, control or
clean up the oil spillage or chemical waste. Neither port nor Coast Guard has any
capability to undertake this task; hence, the country is totally dependent on nature
to cure the pollution and will remain undone in case of pollution.
d.
Lack of effective surveillance system has made the EEZ a safe haven for
the foreign vessels to dump their waste in the EEZ of Bangladesh.
79

e.
Neither port nor the Coast Guard has any suitable and purpose-built vessel
and specialized pollution control equipment in their inventory to combat marine
pollution.
Role of BN in Protection of Marine Environment
13. Though BN is not responsible for protection of the marine environment in the
EEZ, nevertheless, she will not be able to shrug off the responsibility totally. Because of
the fact that BN maintains constant patrol in the EEZ, the ships can be tasked to remain
vigil for the protection of marine environment. BN is also in the process of procuring
helicopters for her under construction frigate, which can be effectively utilized for the
surveillance of the EEZ with her SLAR (Side Looking Air-borne Radar). Among the
present assets BNS S R AMIN has the capacity to carry 27 tons of dispersal chemicals
to neutralize limited oil spillage. Moreover, it is possible to equip some of the BN ships
(Ocean Tugs and Auxiliaries) with pollution control equipment.
Regional Cooperation
14. The UNCLOS III has encouraged regional efforts through part XII of the
convention for the protection and preservation of maritime environment against
pollution. South Asia Cooperative Environment Programme (SACEP) is such a regional
effort which has been established in 1982 for promoting regional cooperation in
environmental aspect. However, the effort ended into stalemate with the issue of
Farakka. Further forum for such cooperation is South Asian Association for Regional
Cooperation (SAARC) and Bangladesh, India, Myanmar, Sri Lanka, Thailand
Economic Cooperation (BIMSTEC).

Q. What are the Operative Clauses of the recent ITLOS Judgment?


ANSWER
1. The dispute was concerned with the delimitation of the maritime boundary
between Bangladesh and Myanmar in the Bay of Bengal with respect to the territorial
sea, the exclusive economic zone and the continental shelf. It was the first case of the
Tribunal relating to the delimitation of maritime boundaries.
2. Proceedings in the case were instituted before the Tribunal on 14 Dec 2009.
Further to the filing of written pleadings by the Parties, hearing took place in Sep 2011.
3. In its judgment, the Tribunal had to address a number of issues raised by the
Parties. Those included: the claim made by Bangladesh that the delimitation of the
territorial sea had already been agreed by the Parties in 1974; and the delimitation of the
exclusive economic zone and continental shelf within 200 nautical miles from the
80

baselines from which the breadth of the territorial sea is measured. In addition, the
Tribunal had to deal with the request of Bangladesh that the continental shelf beyond
200 nautical miles limit be delimited, a request which was opposed by Myanmar. The
Tribunal then had to decide whether it could and should exercise its jurisdiction in
respect of the delimitation of the continental shelf beyond 200 nautical miles.
4.

The operative clauses of the Judgment are given below:


a.
The Tribunal has jurisdiction to delimit the maritime boundary of the
territorial sea, the exclusive economic zone and the continental shelf between the
Parties.
b. The Tribunals jurisdiction concerning the continental shelf includes the
delimitation of the continental shelf beyond 200 nm.
c. The Tribunal finds that there is no agreement between the Parties within the
meaning of article 15 of the Convention concerning the delimitation of the
territorial sea.
d. The Tribunal decides that starting from point 1, with the coordinates 20 42
15.8 N, 92 22 07.2 E in WGS 84 as geodetic datum, as agreed by the Parties in
1966, the line of the single maritime boundary shall follow a geodetic line until it
reaches point 2 with the coordinates 20 40 45.0 N, 92 20 29.0 E. From point
2 the single maritime boundary shall follow the median line formed by segments of
geodetic lines connecting the points of equidistance between St. Martins Island
and Myanmar through point 8 with the coordinates 20 22 46.1 N, 92 24 09.1
E. From point 8 the single maritime boundary follows in a northwesterly direction
the 12 nm envelope of arcs of the territorial sea around St Martins Island until it
intersects at point 9 (with the coordinates 20 26 39.2 N, 92 9 50.7 E) with the
delimitation line of the exclusive economic zone and continental shelf between the
Parties.
e. The Tribunal decides that, from point 9 the single maritime boundary follows
a geodetic line until point 10 with the coordinates 20 13 06.3 N, 92 00 07.6 E
and then along another geodetic line until point 11 with the coordinates 20 03
32.0 N, 91 50 31.8 E. From point 11 the single maritime boundary continues as
a geodetic line starting at an azimuth of 215 until it reaches the 200 nm limit
calculated from the baselines from which the breadth of the territorial sea of
Bangladesh is measured.
f. The Tribunal decides that, beyond that 200 nm limit, the maritime boundary
shall continue, along the geodetic line starting from point 11 at an azimuth of 215
as identified in operative paragraph 5, until it reaches the area where the rights of
third States may be affected.

81

Q. What is Grey Area as per recent ITLOS Judgement and what is the
implication of it?
ANSWER
Grey Area
1. The delimitation of the continental shelf beyond 200 nm gives rise to an area of
limited size located beyond 200 nm from the coast of Bangladesh but within 200 nm
from the coast of Myanmar, yet on the Bangladesh side of the delimitation line. In the
present case, the area, referred to by the Parties as a grey area, occurs where the
adjusted equidistance line used for delimitation of the continental shelf goes beyond 200
nm off Bangladesh and continues until it reaches 200 nm off Myanmar.
2. The grey area arises as a consequence of delimitation. Any delimitation may give
rise to complex legal and practical problems, such as those involving transboundary
resources. It is not unusual in such cases for States to enter into agreements or
cooperative arrangements to deal with problems resulting from the delimitation.
3. There are many ways in which the Parties may ensure the discharge of their
obligations in this respect, including the conclusion of specific agreements or the
establishment of appropriate cooperative arrangements. It is for the Parties to determine
the measures that they consider appropriate for this purpose.

Q. What is Disproportionality Test as per ITLOS Judgement? How it was


calculated?
ANSWER
1. During the proceeding the Tribunal notes that the relevant maritime area for the
purpose of the delimitation of the exclusive economic zone and the continental shelf
between Bangladesh and Myanmar is that resulting from the projections of the relevant
coasts of the Parties. The Tribunal considers that, for the purpose of determining any
disproportionality in respect of areas allocated to the Parties, the relevant area should
include maritime areas subject to overlapping entitlements of the Parties to the present
case.
2.
For the purposes of the determination of the relevant area, the Tribunal decides
that the size of the relevant area has been calculated to be approximately 283,471 square
kilometres. The length of the relevant coast of Bangladesh is 413 kilometres, while that
of Myanmar is 587 kilometres. The ratio of the length of the relevant coasts of the
Parties is 1:1.42 in favour of Myanmar.
3.
The Tribunal notes that its adjusted delimitation line allocates approximately
111,631 square kilometres of the relevant area to Bangladesh and approximately
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171,832 square kilometres to Myanmar. The ratio of the allocated areas is


approximately 1:1.54 in favour of Myanmar. The Tribunal finds that this ratio does not
lead to any significant disproportion in the allocation of maritime areas to the Parties
relative to the respective lengths of their coasts that would require the shifting of the
adjusted equidistance line in order to ensure an equitable solution.

Q.

Justify Bangladeshs claim of estoppels.


ANSWER

The Tribunal observes that, in international law, a situation of estoppel exists


1.
when a State, by its conduct, has created the appearance of a particular situation and
another State, relying on such conduct in good faith, has acted or abstained from an
action to its detriment. The effect of the notion of estoppel is that a State is precluded,
by its conduct, from asserting that it did not agree to, or recognize, a certain situation.
2.
In the view of the Tribunal, the evidence submitted by Bangladesh to demonstrate
that the Parties have administered their waters in accordance with the limits set forth in
the 1974 Agreed Minutes is not conclusive. There is no indication that Myanmars
conduct caused Bangladesh to change its position to its detriment or suffer some
prejudice in reliance on such conduct. For these reasons, the Tribunal finds that
Bangladeshs claim of estoppel cannot be upheld.

Q.
What method was applied for delimiting the exclusive economic zone and the
continental shelf between Bangladesh and Myanmar?
ANSWER
The Tribunal finds that the appropriate method to be applied for delimiting the
1.
exclusive economic zone and the continental shelf between Bangladesh and Myanmar is
the equidistance/relevant circumstances method.
2.
In applying this method to the drawing of the delimitation line, the Tribunal,
taking into account the jurisprudence of international courts and tribunals on this matter,
will follow the three stage-approach, as developed in the most recent case law on the
subject. Accordingly, the Tribunal proceeded in the following stages:
a.
At the first stage it will construct a provisional equidistance line, based on
the geography of the Parties coasts and mathematical calculations. The
provisional equidistance line starts at a point in the Naaf River lying midway
between the closest base points on the coasts of the Parties.

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b.
The second stage of the process, which consists of determining whether
there are any relevant circumstances requiring adjustment of the provisional
equidistance line; if so, it will make an adjustment that produces an equitable
result. The Tribunal observes that the coast of Bangladesh, seen as a whole, is
manifestly concave. In fact, Bangladeshs coast has been portrayed as a classic
example of a concave coast. The Tribunal notes that in the delimitation of the
exclusive economic zone and the continental shelf, concavity per se is not
necessarily a relevant circumstance. However, when an equidistance line drawn
between two States produces a cut-off effect on the maritime entitlement of one
of those States, as a result of the concavity of the coast, then an adjustment of that
line may be necessary in order to reach an equitable result. The Tribunal further
notes that, on account of the concavity of the coast in question, the provisional
equidistance line it constructed in the present case does produce a cut-off effect
on the maritime projection of Bangladesh and that the line if not adjusted would
not result in achieving an equitable solution. The Tribunal finds that the concavity
of the coast of Bangladesh is a relevant circumstance in the present case, because
the provisional equidistance line as drawn produces a cut-off effect on that coast
requiring an adjustment of that line.
c.
The third and final stage in this process the Tribunal will check whether the
line, as adjusted, results in any significant disproportion between the ratio of the
respective coastal lengths and the ratio of the relevant maritime areas allocated to
each Party.

Q.
Why St. Martins Island was not considered a relevant circumstance
warranting an adjustment of the provisional equidistance line?
ANSWER
St. Martins Island is an important feature which could be considered a relevant
1.
circumstance. However, because of its location, giving effect to St. Martins Island in
the delimitation of the exclusive economic zone and the continental shelf would result
in a line blocking the seaward projection from Myanmars coast in a manner that would
cause an unwarranted distortion of the delimitation line. The distorting effect of an
island on an equidistance line may increase substantially as the line moves beyond 12
nm from the coast.
2.
For the foregoing reasons, the Tribunal concludes that St. Martins Island is not a
relevant circumstance and, accordingly, decides not to give any effect to it in drawing
the delimitation line of the exclusive economic zone and the continental shelf.

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Q.

Why St. Martins Island could serve as the source of a base point?
ANSWER

1.
Concerning the question whether St. Martins Island could serve as the source of
a base point, the Tribunal is of the view that, because it is located immediately in front
of the mainland on Myanmars side of the Parties land boundary terminus in the Naaf
River, the selection of a base point on St. Martins Island would result in a line that
blocks the seaward projection from Myanmars coast. In the view of the Tribunal, this
would result in an unwarranted distortion of the delimitation line, and amount to a
judicial refashioning of geography. For this reason, the Tribunal excludes St. Martins
Island as the source of any base point.

Q.
Why Bengal depositional system was not considered as a relevant
circumstance?
ANSWER
The Tribunal does not consider that the Bengal depositional system is relevant to
1.
the delimitation of the exclusive economic zone and the continental shelf within 200
nm. The location and direction of the single maritime boundary applicable both to the
seabed and subsoil and to the superjacent waters within the 200 nm limit are to be
determined on the basis of geography of the coasts of the Parties in relation to each
other and not on the geology or geomorphology of the seabed of the delimitation area.

Q.

How adjustment was made to the provisional equidistance line?


ANSWER

The coast of Bangladesh between its land boundary terminus with Myanmar at
1.
the mouth of the Naaf River and its land boundary terminus with India is decidedly
concave. This concavity causes the provisional equidistance line to cut across
Bangladeshs coastal front. This produces a pronounced cut-off effect on the southward
maritime projection of Bangladeshs coast that continues throughout much of the
delimitation area.
2.
The Tribunal decides that, in view of the geographic circumstances in the present
case, the provisional equidistance line is to be deflected at the point where it begins to
cut off the seaward projection of the Bangladesh coast. The direction of the adjustment
is to be determined in the light of those circumstances.

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3.
The fact that this adjustment may affect most of the line in the present case is not
an impediment, so long as the adjustment is tailored to the relevant circumstance
justifying it and the line produces an equitable solution.
4.
The Tribunal has selected the point on the provisional equidistance line that is
due south of the point on Kutubdia Island at which the direction of the coast of
Bangladesh shifts markedly from north-west to west, as indicated by the lines drawn by
the Tribunal to identify the relevant coasts of Bangladesh.
5.
The projection southward from the coast of Bangladesh continues throughout the
delimitation area. There is thus a continuing need to avoid cut-off effects on this
projection. In the geographic circumstances of this case it is not necessary to change the
direction of the adjusted line as it moves away from the coasts of the Parties.
6.
The Tribunal accordingly believes that there is reason to consider an adjustment
of the provisional equidistance line by drawing a geodetic line starting at a particular
azimuth. In the view of the Tribunal the direction of any plausible adjustment of the
provisional equidistance line would not differ substantially from a geodetic line starting
at an azimuth of 215. A significant shift in the angle of that azimuth would result in
cut-off effects on the projections from the coast of one Party or the other. A shift toward
the north-west would produce a line that does not adequately remedy the cut-off effect
of the provisional equidistance line on the southward projection of the coast of
Bangladesh, while a shift in the opposite direction would produce a cut-off effect on the
seaward projection of Myanmars coast.
Q.
State the right of passage of ships of Myanmar through the territorial sea of
Bangladesh around St. Martins Island.
ANSWER
Bangladesh agreed to accord Myanmars vessels the right of free and unimpeded
1.
navigation through Bangladeshs waters around St Martins Island to and from the Naaf
River. The Tribunal took note of this commitment by Bangladesh.

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