Law of Sea Notes 2

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Law of Sea Notes 2
Public International Law II (The University of the West Indies Cave Hill Campus)
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PIL II
Territory II
LAW OF THE SEA NOTES
B. INTRODUCTION
1. Development of the Law of the Sea
This topic impacts on many interests of the state. In the earliest writings, there were debates as to whether a state
can own an area of the sea. The Pope, hoping to divide the lands between Portugal and Spain included portions of
the sea. Queen Elizabeth was challenging the attempt to divide portions of the seas and contest the ownership of
the high seas.
The view today is that the high seas are res communis1. Disputes continued over how the states could exercise
authority and control over the seas as the law of the seas was ambiguous. The ILC set out to settle the law of the
sea. Four sets of conventions were concluded—territorial sea and contiguous zone, high seas, fishing and
conservation. All these conventions are still in force, however, there was still need to resolve other issues – such
as, what was the width of the territorial sea?
The 1958 Conventions on Law of the Sea

The Geneva Conferences on the Law of the Sea 1958 and 1960 resulted in the entry into force and ratification of
four conventions on Territorial Sea and Contiguous Zone, High Seas, Continental Shelf and Fishing and
Conservation… The High Seas convention claims to merely declare established principles of international law. The
others both codified and progressively developed international law. The conventions did much to advance the law
of the sea but they fell short in several ways. They did not, for example, state the width if the territorial sea nor did
they define the fishing rights of states beyond their territorial sea. These and the other problems with the
conventions were addressed and corrected by the 1982 convention.
North Sea Continental Shelf Case—whether customary international law came from the treaty. Some of the
conventions became outdated quickly because of changes in technology.
Many of the newly independent states challenged because they did not give their input. Another attempt was made
to codify international law in this area.
1 Public Domain
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The 1982 Convention on the Law of the Sea

This extended and improved the previous four conventions. It included new rules on the exclusive economic zone
and the deep seabed. The main changes included:
- the acceptance of a 12 mile territorial sea,
- provision for transit passage through international straits,
- increased rights for archipelagic and land-locked states,
- stricter control of marine pollution,
- provisions for fisheries conservation,
- acceptance of a 200 mile exclusive economic zone for coastal states,
- provision for the development of deep sea-bed resources
- provision for the settlement of disputes arising under it.
The convention was aimed at contributing to ‘the realization of a just and equitable international economic order
which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and
needs of developing countries, whether costal or landlocked.’
Although mostly formulated in 1982, because of the dissatisfaction of various developed states with different
articles it did not enter into force until 1994 after an implementing agreement was agreed upon which amended
certain articles to the satisfaction of developed states. Many states still have not become parties to the convention
but it seems that many of its rules have been confirmed or accepted as being binding as custom.
It is noteworthy that the convention made no provision for reservations. The convention implemented a number of
compromises rather than leave it to states to accept the terms they liked and disregard the others. This ensures that
the rights claimed by states are accepted with their accompanying duties. Thus some have taken a package
approach to the convention. Others however have chosen to assess each rule of the convention separately as it
arose for consideration in cases.
A third conference was convened on the law of the sea, it culminated in 1982 UN Convention on the Law of the
Sea (Montego Convention). There were over 300 articles to this convention. Each of the provisions was drafted
by consensus. The convention could not be adopted by consensus. The convention went to a vote. It was adopted
by a substantial majority.
How can the provisions of the treaty become custom? Not all the provisions have been accepted as customary
international law. Two ways in which it can become custom: (1) convention becoming custom as a whole; (2)
custom by provision—each individual provision has created custom. The difficulty with arguing that the
convention as a package has become custom is that it went to a vote and not adopted by consensus. The ICJ seems
to have adopted the traditional approach by looking at the convention section by section. Even though it was open

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for signature in 1982 it was not adopted until 1984 as some Western States feared how the regime would be
managed. As of March 2007, 153 states are parties to the convention. All of the 15 states that serve the UWI are
parties. The US is not a party to the convention.
Only states that are parties to the UN Convention would be bound by its provisions. The key here is to remember
that there are essentially 3 sets of rules that could be applicable to a dispute:
(1) custom
(2) 1958 Geneva Convention
(3) 1982 UN Convention on the Law of the Sea.
Therefore, it all depends on whether the treaty governs the disputes and the states involved in the dispute may be
parties to different treaties.
If two states are parties to the two conventions, the later convention would apply. This is specifically provided for
in 1982 Convention in article 3(11) in 1982 Convention. States cannot make reservations to the 1982 Convention.
2. Charts Illustrating General Areas of Maritime Territory
The charts [on worksheet] set out the different maritime zones that a state can claim. All the zones are measured
from the baseline. Waters on the landward side are the state’s internal waters. 2nd map—all of these zones overlap.
C. INTERNAL WATERS
The internal waters are the waters inside the state’s sovereign territory. The Nicaragua Case makes the point that a
state’s sovereignty extends to its internal waters. This idea of the sovereignty of the state on its internal waters is in
Article 2 of the UNCLOS.
Military and Paramilitary Activities Case (Nicaragua v. US)
“The basic legal concept of State sovereignty in customary international law, expressed, inter alia, Article 2,
paragraph 1, of the UN Charter, extends to the internal waters and territorial sea of every State and to the air space
above its territory…in conjunction with the 1958 Geneva Convention on the Territorial Sea, further specifies that
the sovereignty of the coastal state extends to the territorial sea and to the air space above it, as does the UNCLOS
adopted on 10 December 1982. The Court has no doubt that these prescriptions of treaty-law merely respond to
firmly established and longstanding tenets of customary international law.
Article 8 (1) provides that ‘Except as provided in Part IV, waters on the landward side of the baseline of the
territorial sea form part of the internal waters of the State.’

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Article 5 provides that ‘Except where otherwise provided in this Convention, the 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.’
1. Jurisdiction
The Schooner Exchange v McFaddon

M, an American, tried to claim a French naval vessel which docked in Philadelphia on the grounds that it was
actually his ship which had been seized by France on the high seas in accordance with a Napoleonic decree. The
AG of the US suggested that the court should refuse jurisdiction on the grounds of sovereign immunity.
HELD: Only the state can impose a limitation on the absolute and exclusive jurisdiction it enjoys within its own
territory. Since every state is sovereign and each sovereign is equal one sovereign should not be able to exercise
jurisdiction over another. Thus sovereign immunity even if not expressed is implied for a sovereign who venture
into the territory of another. Every sovereign is taken to have waived a part of its jurisdiction. For example a
sovereign cannot arrest or detain the sovereign of another state within its territory. Similarly, the ministers of
another state are immune from arrest within a foreign territory. Ordinary citizens and merchant vessels of a state
are amenable to the jurisdiction of another state while within its territory. However, military vessels, acting under
the immediate and direct command of a sovereign, employed by the sovereign in national objects are exempt from
another state’s jurisdiction.
The state has complete sovereignty over its internal waters but that sovereignty can be limited in terms of foreign
sovereign.
R v Anderson
D, an American working aboard a British ship, was convicted of a crime committed in French territory. He
appealed on the ground that the court had no jurisdiction to try him.
HELD: Since the crime was committed in France’s territorial waters, D was subject to French jurisdiction.
However since it was committed aboard a British ship and Britain could protect its vessels even in a foreign port; D
was also subject to British jurisdiction. Past experience suggests that France will not enforce its jurisdiction in such
a situation unless invoked to do so by the master of the vessel or the offence leads to a disturbance of the peace.
As, the offence was committed at a point which made it the same as if it were committed on the high seas, on this
basis D was amenable to British law.
In the above case Byles J compared the ship to a floating island so that a person who commits a crime aboard
would be amenable to the jurisdiction of the ship’s country just as if he had committed the crime in the actual

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territory. It is suggested that this view must be discarded as distorting international law as it relates to the law of the
sea.
Wildenhus’s Case
D, a Belgian, was found guilty by an American court of killing another Belgian aboard a Belgian ship docked in an
American port. It was argued in an application for habeas corpus that the US lacked jurisdiction because of an
1880 convention between the US and Belgium.
HELD: In the absence of a treaty provision to the contrary, a merchant vessel in a foreign port is amenable to the
jurisdiction of that state because the owner of the vessel seeks the protection of the sovereign and therefore owes
him some allegiance in return. It is only as a matter of comity that states choose to leave it to the authority of the
nation to which the ship to deal with disciplinary matters affecting the ship only and only exercise their jurisdiction
over those acts which disturb the peace and tranquility of their country. States have therefore entered treaties and
conventions in order to prevent the inconvenience that might arise from attempts to exercise conflicting
jurisdictions. The US and Belgium were parties to one such treaty. By their agreement, Belgium had exclusive
jurisdiction over the offence unless it disturbs the public peace or repose of the US. An offence disturbs the public
peace if it is ‘of a character to affect those on shore or in the port when it becomes known.’ It is irrelevant whether
anyone other than those on board the ship witnessed its commission. It is offences which by their very nature
affect the community at large and whose gravity are such that civilized nations feel bound to punish them severely
which meet fit this description. It will at times be necessary to consider the circumstances of the case to determine
whether an offence disturbs only the peace of the ship or the peace of the country as well. However, a felonious
homicide (the crime in the instant case) is conceded to be a subject of local authority. The habeas corpus will
therefore be granted.
D. TERRITORIAL SEA
This is an area over which a state has sovereignty. Article 2 (3) provides that ‘the sovereignty over the territorial
sea is exercised subject to this convention and to other rules of international law.
Look at Nicaragua Case above.
2. Breadth

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Traditionally, there was no set limit on the breadth of a territorial sea under customary international law. However,
the idea of a 3 mile limit emerged. The premise of this was that 3 miles was the approximate distance that a coastal
state could be used to defend its territory because the cannon can shoot up to 3 miles.
R v. Keyn - uncertainty on whether the international law supported 3 mile limit.

A German ship collided with a British ship in the English Channel 3 miles off the English coast with the result that
a passenger aboard the British ship died. D, the German captain was prosecuted and convicted in British courts for
manslaughter. The second court to hear the case decided that the British courts had no jurisdiction to try the case.
Cockburn CJ reasoned that on aboard a foreign ship on the high seas, the foreigner is liable to the law of the
foreign ship only. However the ship becomes subject to local laws as soon as it comes into waters of another state.
This was a rule of international law long adopted into British municipal law. Thus, Keyn could only be tried in
British courts if the offence was committed in British territory. The important question then was whether the
English Channel was part of English territory. The extent of a state’s territorial sea could only be determined by
parliament through legislation. Neither custom nor treaties between other states could determine it since these were
only evidence of assent by nations and would call into question the strength of that assent. (At most, custom and
treaties between other territories could only influence parliament to enact such legislation.)
Cockburn CJ then considered whether that a foreigner could become subject to the laws of the state if the state
gains control of a part of that which was once the high seas through the acquiescence of other states to its outward
manifestation of national will through open practice or municipal legislation amounting to constructive occupation.
He acknowledged that such actions by a state would give its parliament the right to legislate for the area but
pointed out that until such legislation had been passed the courts could not apply the laws of the state to a foreigner
in ways and situations in which it had never applied before.
On the point of where the offence was committed, Cockburn CJ ruled that although the offence had effect on the
British ship it had not been committed there so the British had no jurisdiction over it.
Note: The decision in R v Keyn was reversed by the Territorial Waters Jurisdiction Act 1878 which gives
Britain jurisdiction over the open seas adjacent to her coasts and ‘all other parts of Her Majesty’s dominions to
such a distance as is necessary for the defense and security of such dominions...’
 The Territorial Waters Jurisdiction Act 1878 Article 3 says that ‘every state has the right to establish the
breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from the baseline
determined in accordance with this convention.

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On December 27, 1988 President Reagan extended, by proclamation, the territorial sea of the United States to 12
nautical miles.
The UK has also claimed 12 miles. Most Caribbean states claim the following breadths of territorial seas and EEZ,
respectively:
Jamaica 12 (1971) and 200 (1991); and TT 12 (1969) and 200 (1986).
3. Delimitation: Baselines
Anglo-Norwegian Fisheries Case (UK v Norway)

By a 1935 treaty the UK agreed for various reasons that Norway’s Fishery Zone was to be 4 miles instead of the
usual 3. Norway measured the zone from straight baselines linking the outermost points of land (some of which
were over 30 miles long) instead of from the low-water mark line as was the norm. By using the baseline method
of delimitation, Norway enclosed in its territorial seas, waters which would otherwise have been high seas open to
foreign fishing. Norwegian enforcement of its system gave rise to disputes involving British fishing vessels. The
UK challenged the legality of Norway’s straight baseline system and the choice of certain baselines used in
applying it.
HELD: It is customary to use the lower-water mark line and both states agree on its use but they disagree on its
application. The court had to decide which of the lower-water marks in question was to be used that of the
Norwegian mainland or that of the rocks and islands.
The court considered three possible solutions:

1. The use of the ‘trace parallele’. This method followed the coast strictly. It was ideal for unbroken
coastlines and those coastlines which were free of deep indentations and archipelagos. For this reason the
court found it irrelevant to the present case.
2. The use of the straight baseline method. This method also follows the coast but ‘within reasonable limits,
may depart from the physical line of the coast’.
3. The use of the ‘courbe tangente’ or arcs of circles method. This method applies the principle that the belt of
territorial waters must follow the line of the coast. It consists of drawing straight lines between appropriate
points selected on the lower-water mark. This method is more suitable for irregular coastlines. It has the
advantage of making it possible to fix criteria for its delimitation. Although several states have adopted this
method using straight baselines without any objection, its use was still not obligatory by law.

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The UK while recognizing Norway’s claim to historic titles, favoured a partial application of the third method, that
Norway could draw straight lines but only across bays. The UK also contended that it should be regarded as a rule
of international law that the length of straight lines should not exceed 10 miles.
The Court rejected this contention holding instead that the 10-mile rule had been adopted by some states but it was
not a general rule of international law. At most the practice of the state made the 10-mile rule a proposal not a
general rule of international law. In any case it could not have been applied to Norway since Norway had always
protested its use.
The court stated that it was the coastal state that was in the best position to appraise the local conditions dictating
the choice of method.
Norway had undertaken a method of delimitation in a 1935 decree which it claimed represented a traditional
system of delimitation and was in complete conformity with international law. Norway argued that the 1935 decree
was a necessary adaptation of international law which took into account the diversity of facts so that the drawing of
straight baseline could be adopted to the special conditions of each region.
The court acknowledged that delimitation was also an international issue and therefore even this decree was subject
to certain principles and not merely dependent on the will of the coastal state as expressed in its laws. The court
identified three considerations to be taken into account when judging the validity of delimitations:
1. the close dependence of the territorial sea upon the land domain
2. the relatively close relationship existing between certain sea areas and the land formations which divide and
surround them.
3. certain economic interests peculiar to the region, the reality and importance of which are evidenced by long
usage.
The court found that despite a few apparent uncertainties and contradictions, Norway had applied its system of
delimitation consistently over a long period and that its application had never been subject to the protests of foreign
states. The court refused to accept the UK’s argument that it had not known of the system. The court therefore
found that Norway had been justified in enforcing the system against the UK.
The only question then left for the court to decide was whether Norway had conformed to the 1935 Decree.
Norway admitted that baselines were to be drawn in a reasonable manner in the general direction of the coast. The
UK criticized the delimitation of a particular section of the coast as not meeting this requirement. The court
rejected this criticism on the basis that the general direction of the coast could not be accessed with any
mathematical precision and Norway had rights based on historic title founded on the needs of the people and
attested by long peaceful usage.
HELD: the 1935 decree was not contrary to international law and neither was the baselines established by it

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Notes:
The judgment in this case has been accepted by states and almost certainly reflects customary international law.
The trace parrallele method is difficult to apply and therefore apparently not practiced. The arc of circles method
is easier to apply but leads to awkward results on exceptionally irregular coastlines.
It is questionable whether the court ruled for Norway because its system was permitted by custom or because it
established historic title. The decision also leaves many questions unanswered.
Notes: Baselines
The 1982 Convention follows the approach of the ICJ in the Anglo-Norwegian Fisheries Case with the only
difference being that it requires that the low-tide elevations be permanently above sea level to be used as the
beginnings of a straight baseline with the effect that the limits of the territorial sea and other areas of maritime
jurisdiction of states have been extended outwards. [Re Art. 7(6) and Art. 8(2)] However, like the rules relating to
baselines in the 1958 Convention, those in the 1982 Convention are also ambiguous and, without any international
authority to supervise them, states have been able to abuse the system by drawing straight lines even where it was
not necessary. One zone in particular was established without use of the low-water line or the straight baseline
method. The 1986 Falkland Islands Interim Fishing Zone was delimited by drawing a line 150miles in
circumference from a point in the islands.
(a) Straight Baselines
Article 7 (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 baselines joining appropriate points may be employed in
drawing the baseline from which the breadth of the territorial sea is measured.
Article 7 (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.
Article 7 (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.
Article 11: offshore installations and artificial islands cannot be used for drawing the baseline
Article 14: allows states to combine any of the methods of drawing baselines
(b) Bays

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Mortensen v Peters
A Scottish act and byelaw made it an offence punishable by crime or imprisonment to fish by trawling in the
Moray Firth. The Act covered an area located 3 miles off the coast of Scotland. D, a Dane on board a Norwegian
ship was convicted in Scottish courts for fishing in an area covered by the byelaw but beyond 3mile limit. D
appealed. He argued that a statute creating an offence was to be presumed to apply only to British nationals and
foreigners in British territory unless its application was expressly extended. On this basis he argued that he ought
not to have been convicted since he was not a British citizen and since he was fishing outside the 3mile limit, he
had not been caught within British territory. He also argued that international law did not allow territorial
sovereignty to be exercised over a foreigner in such a place.
HELD: (DUNEDIN LJ) The appeal was dismissed. It was said that it was not for the court to decide whether a
local law was ultra vires international law. The role of the court is to give effect to whatever law is passed so long
as it is passed following the correct procedure. The act doesn’t prohibit all fishing; it prohibits fishing in a certain
place. The legislature in passing the act was assuming the right to legislate against all the people in the territory
covered by it. It would not make sense in this case to legislate against some persons but not all. The court
recognized that international law had been recognized and made part of Scottish law but his Lordship argued that
the fact that international law said that a state could legislate for an area of 3mles did not mean that the state could
not legislate beyond that. In this case the locus although beyond the 3-mile limit was within the Moray Firth and
past cases admit to the right of a state to legislate for landlocked or land embraced waters beyond the 3-mile limit.
All factors considered, the court could not say that the Moray Firth was for all purposes within British territorial
sovereignty but neither could it say that Britain could never legislate for it. In this case, Britain seems to have done
so.
(LORD KYLLACHY) The court could only question the construction of the act not the Legislature’s power to
enact it. There is always a presumption against Legislatures asserting jurisdiction over an area beyond the limits set
by international law. Like other presumptions this one can be rebutted by express words, implication or a counter-
presumption.
Notes:
The case concerned custom and statute. A statute may incorporate a rule of international law by reference e.g. to
another law or treaty.
(The trawler was British but given a Danish master to circumvent fishing regulations.)
According to Article 10 of the 1982 Convention, any area of water which fits the convention’s definition of a bay
is a state’s internal waters through which innocent passage is not allowed as of right. Article 10 (2) defines a bay.
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A bay is an indentation along the coast. The definition says that for the indentation to be considered a bay, the area
of the indentation has to be larger than a semi-circle drawn across the mouth of the bay.
At first a closing line of 10 miles was once proposed for bays. Then in 1956, the International law Commission
proposed a closing line of 25 miles. This was later reduced to 15 miles because of lack of support. A number of
governments believed an extension to 25 miles would have been excessive. The 1958 Convention and Article 10
of the 1982 Convention set the closing line at 24 miles rejecting the previous proposals. In view of the fact that it
has been adopted by most of the states of the world, the Geneva Convention may be viewed as the best evidence of
international law on the subject. The International Court of Justice in the Anglo-Norwegian Fisheries case rejected
the so-called 10-mile rule previously considered by some countries.
Neither the 1958 nor the 1982 Conventions govern bays bordered by more than one states or historic bays which
can exist at customary international law. However, Colombos states that, in the case of bays bordered by one states,
‘the territorial waters should follow the sinousities2 of the coast…subject to any special agreement.’
There is international case law which suggests that:
(i) in cases of historical bays surrounded by more than one states, those states must sovereignty over that waters
landward of the closing line.
(ii) by international standard, waters had to be subject to ‘past open, notorious and effective exercise of authority,
and acquiescence of foreign nations’ to be regarded as historically internal or territorial waters. For example, the
Court in the Continental Shelf Case where Tunisia claimed historically rights to territory noted that historical titles
including those to historic bays ‘must enjoy respect and be preserved as they always have been by long usage’.
This indicates a distinction between bays conforming to Art.10 of the 1982 Convention which are valid irrespective
of the response of other states, and historic bays which depend upon their consent. The Court also stated that then
matter continues to be governed by general customary international law which provides a distinct legal regime for
each concrete recognized case of historical waters. One regime is based on acquisition and occupation while the
other is based on the existence of rights ‘ipso facto and ab initio3’ and states are free to rely on one or both.
The apparent lack of a maximum length for a closing line for historical bays suggests that states are free to accept
lines of any length.
(c) Islands
2 Not sure if this is a word

3 by the fact itself
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Islands within your territorial sea can be used to draw the baseline, i.e. they can be used as the low water mark.
Islands can have their own territorial seas. An island can each claim a territorial sea. Article 121 sets up a legal
regime for islands. An island is defined as a naturally formed area of land surrounded by water which is above
water at high tide. Islands that satisfy the definition can claim their own maritime area.
Article 121(3): the island must be able to sustain human habitation or economic life for it to possess a continental
shelf or EEZ.
In 1963, volcanic activity resulted in the creation of the island of Surtsey in Iceland’s territorial waters. According
to Article 60(8) of the 1982 Convention, artificial islands, installations and structures are not islands. Because of
the possibility of exploiting natural resources in the seabed surrounding them, small islands have become more and
more important. Article 121 of the 1982 Convention which is said to reflect the present status of international law,
merely repeats the definition of islands and the rules related to them in Article 10 of the 1958 Convention.
However, the 1982 Convention goes further by restricting the circumstances in which it may have territorial sea.
Two main factors seem to indicate that the closing line is accepted as 24 miles: the adoption of the convention by a
large number of states and the ICJ’s rejection of the 10mile rule in the Anglo-Norwegian Fisheries Case. A state
cannot therefore lay claim to a bay extending over 24miles unless it is an ‘historic bay’.
(4) Jurisdiction (Civil, Criminal v. Innocent Passage)
In a state’s internal waters, for the most parts, ships do not have any right to travel. Ships have a right to innocent
passage in another state’s territorial sea.
The Corfu Channel Case

The court was asked to rule on two incidents.
The October incident:
In October 1946, two British cruisers and two destroyers were sent through the Corfu Channel without having
received previous authorization from the Albanian government. While passing through the Channel the two
cruisers were fired at by an Albanian vessel. The UK government immediately protested that innocent passage
through straits was a right recognized by international law. The Albania government argued that foreign warships
and merchant vessels had no right to pass through the state’s territorial waters without prior notification to, and the
permission of the state. The nature of the Corfu Channel as only a secondary and unnecessary route and its use
almost exclusively for local traffic took it out of the category of straits through which innocent passage was
allowed. Even if there was a right of innocent passage (through the Channel), the passage of the British cruisers
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had not been innocent. The court was asked to decide whether, under international law, the acts of the UK Royal
Navy in Albania were a violation of Albanian sovereignty and whether there was a duty to give satisfaction.
HELD: The Court said that it was a generally recognized custom that states in a time of peace have a right to send
their warships through straits used for international navigation between two parts of the high seas without the
previous authorization of the coastal state providing passage was innocent. Coastal states had no right to prohibit
innocent passage during times of peace. The court also ruled that the important criteria was whether the strait
connected two parts of the high seas and was used for international navigation, not the amount of traffic through it,
its necessity as a route, or its importance for such navigation. In light of the danger anticipated from Greece who
had made territorial claims with regard to Albanian territory bordering the Corfu Channel, Albania would have
been justified in regulating but not prohibiting the passage of warships through the strait. The regulation did not
include the requirement of authorization. As such, Albanian claim that the passage of British warships without
authorization violated its sovereignty was not accepted. They reasoned that the fact that Albania denied British
right to innocent passage did not bind the UK to abstain to abstain from exercising it and contrary to Albanian
contention the passage of the vessels was innocent (i.e. there were no soldiers aboard and the guns were not
loaded) and not a violation of Albanian sovereignty.
The November incident:

In the following month, ‘Operation Retail’ the British entered Albanian waters against the express wish of the
Albanian government and without the consent of the relevant international organizations to carry out
minesweeping. The UK acknowledged that this was against international law which does not allow a state to
assemble a large number of warships in the territorial waters of another state and to carry out minesweeping. The
UK justified its actions in two ways, first as intervention to secure evidence and secondly as self-protection or self-
help. Albania criticized the method by which the operation was carried out on the grounds that the force was both
unnecessary and disproportionate. The court held that Albania’s criticism was not justified because the force was
not used as an exercise of political pressure. It was a precaution taken by the UK in response to previous acts by
Albania. The court did not accept British arguments of intervention however. It found instead that the UK acts
constituted a manifestation of a policy of force which had no place in international law. The court therefore
declared that the action of the UK constituted a violation of Albanian sovereignty.
Thus, the court ruled for the UK in respect of the passage in October, but ruled in favour of Albania with respect to
the minesweeping operation in November.
Notes: Vessels entitled to innocent passage

International law relating to the innocent passage of vessels through the territorial waters of others has always been
uncertain. There appears to be four positions:
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1. Some states have acknowledged a general right of passage for all vessels.
2. Some states (e.g. Britain - 1896) acknowledge a right of passage for some vessels (e.g. merchant ships) but
not others (e.g. warships).
3. Some states acknowledge a right of passage through international straits in the territorial sea. [Re Corfu
Channel Case]
4. Other states consider that the passage, of warships should be ‘subject to previous authorization and
notification’. [Re: 1956 International Law Commission Draft Article later rejected at Geneva]
The 1982 Convention has no provision relating to a right of passage of vessels through territorial waters. It merely
requires that submarines navigate on the surface.
Notes: The meaning of passage

Art.18 of the 1982 Convention defines passage. The ICJ in the Nicaragua Case stated that foreign vessels had a
customary right of innocent passage through territorial waters in order to enter and leave internal waters and access
ports.
Article 18: the passage has to be continuous and expeditious. Passage only allows stoppage in 3 circumstances:
(1) part of normal navigation
(2) to help someone in distress
(3) as a result of force majeure4
Notes: Innocence of passage

Art.19 of the 1982 Convention defines ‘innocent’ and identifies activities which would prejudice the innocence of a
ship’s passage.
Passage is innocent as long as it is not prejudicial to the peace, good order or security of the coastal state. Article
19(2) - specifically lists certain types of passage that is not innocent
-involves threat or use of force
-involves espionage
-involves violation of the customs laws of the coastal state
Art.20 requires submarines to navigate on the surface with their flag displayed but does not say whether failure to
comply would make their passage non-innocent.
Article 21- allows a state to regulate an innocent passage
Article 22- allows state to set up sea lanes (where ships must travel engaging in innocent passage)
4 Superior force - an unexpected and disruptive event that may operate to excuse a party from a contract
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Article 24- there is a duty of the coastal states not to deny innocent passage and must warn of dangers.
According to Art.23 the passage of nuclear powered ships and ships carrying nuclear substances is not in itself non-
innocent. Fishing activities are non-innocent but failure to comply with fishing regulations is not. It has been
suggested that the 1980 Draft Convention which links innocence with things within the coastal state’s competence
could have the effect of putting the burden on the state to prove non-innocence.
Notes: Laws governing passage

The laws and regulations which a coastal state may make governing passage are provided for in Arts.21-24 of the
1982 Convention. Art.21 seems to favor the civil law view that in light of the fact that ships are the territory of their
flag state and therefore coastal states have only such prescriptive jurisdiction as is generally agreed. This is as
opposed to the common law view that a state’s territorial sea is its sovereign territory and as such the state has
unlimited power to legislate on civil and criminal matters for all ships within it.
Notes: Enforcement powers in respect of non-innocent passage

Art.25 of the 1982 Convention authorizes coastal states to ‘take the necessary steps’ to prevent non-innocent
passage. These steps include reasonable force as a last resort. Art.27 gives coastal states the power to arrest
merchant or government ships in their waters if their non-innocent passage constitutes a criminal offence under the
laws of the state.
Notes: Civil & Criminal jurisdiction over foreign merchant ships in territorial seas
Arts.27 and 28 of the 1982 Convention have been interpreted by some states as rules of comity and by others as
binding rules of law. This is partly because these provisions employ the word ‘should’ instead of ‘may’. The US
suggested the use of ‘should’ in acknowledgement of the coastal state’s unlimited jurisdiction within its territorial
seas. State practice as to whether a state can stop a vessel in order to exercise civil jurisdiction against a person on
board is ambiguous.
The articles give coastal states enforcement jurisdiction over commercial vessels only. Warships and other non-
commercial vessels are not subject to such jurisdiction, however, Art.30 allows the coastal state to take measures to
remove warships and Art.31 makes a flag state responsible for damage resulting from breach of a local law by
warships and non-commercial government vessels.
In Pianka v The Queen, US citizens cleared to travel in their boat from a Jamaican Port to the US were discovered
to be in possession of ganja. They appealed against prosecution in a Jamaican court on the basis that it was against
Art.19 of the 1958 Convention to which Jamaica was a party. Their appeal was rejected on the grounds that they
had made the passage non-innocent by contravening the criminal laws of Jamaica in a manner ‘prejudicial to the
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good order’ of Jamaica’s territorial sea and therefore fell within the exceptions to Art.19. The PC upholding the
judgment said that the provisions of Art.19 were to be given a liberal construction.
In The David, Panama claimed that US’s arrest of a Panamanian merchant ship in a part of the Canal Zone subject
to US jurisdiction was contrary to international law. The arrest was in connection with civil proceedings related to a
collision in which the ship had been involved two years earlier. The tribunal rejected Panama’s claim on the
grounds that there was no authority to the effect that foreign merchant ships passing through a state’s territorial
waters were exempt from civil arrest. The dissenting view of the Panamanian Commissioner was that a state could
only assert such authority with respect to crimes committed within its jurisdiction which affect its territorial
sovereign interests.
The consequences of the crime are presumed to extend to the coastal state in such crimes as smuggling, illegal
immigration, pollution and violations of security laws but it is not certain whether it would do so solely because the
perpetrator or victim of the crime aboard a foreign ship was a national of the coastal state.
Government Ships that are operating for commercial purposes

These ships are governed by the same rules as merchant ships
Government ships operated for non-commercial purposes and war ships

They would enjoy immunity. Article 32 UNCLOS these categories are granted immunity from the coastal state’s
jurisdiction.
Article 30 UNCLOS: Coastal state is not rendered powerless. If a crime is committed, the coastal state can ask the
ship to leave immediately
Article 31 UNCLOS: The flag ship remains responsible for the damage that the war ships or non-commercial ship
cause.
E. INTERNATIONAL STRAITS
International straits were introduced in the Corfu Channel case -a passage that connects two parts of the High Seas
(and is actually used for international navigation). The important thing is that the strait is connecting two parts of
the high seas.
Notes: Passage through international straits
The ICJ in the Corfu Channel case recognized that as a rule of customary international law, a coastal state use the
need for security as justification for suspending the right of a foreign vessel to innocent passage through a part of
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its territorial sea which is an international strait used for navigation from one part of the high seas to another.
Art.16 (4) of the 1958 Convention which extends this rule to straits leading for the high seas into a state’s territorial
sea was repeated in Art. 45 of the 1982 Convention. In 1967 the UN Security Council, in response to the Arab-
Israeli conflict over the Strait of Tiran passed a resolution in which it refers to the need to guarantee ‘freedom of
navigation through international waterways’. Various degrees of passage through other states have been guaranteed
by treaties.
2. Innocent Passage and Transit Passage
In determining whether the passage was innocent, one has to look at the manner of passage. Innocent passage in
straits is different from the innocent passage through the territorial sea. Innocent passage through an international
strait cannot be suspended by a coastal state. Innocent passage through a territorial sea can be suspended. UN
Convention expands on the regime that applies to international straits. A strait can be part of a state’s territorial sea
and the state’s EEZ.
UNCLOS on Innocent passage
Innocent passage only available if transit passage is not available Article 45 of the UNCLOS
Article 37-38 transit applies where the strait connects two part of the High Seas or the EEZ.
Innocent passage will be available where strait connects High Seas or the EEZ to the territorial seas.
Innocent passage is governed by the same rules in the international straits and territorial seas except it cannot be
suspended
Notes: The right of transit passage

The widening by states of their territorial seas in recent times has been viewed as an encroachment upon the
freedom of the high seas. In response to this, the 1982 Convention provides a right of transit passage through
international straits within the territorial sea of coastal states. It does not however apply to
1.) a strait through which there exists ‘a route through the high seas r through an exclusive economic zone…’;
2.) certain island situations; and
3.) straits between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign
state.
The ordinary right of innocent passage through the territorial sea still applies to (1) and (3) with the exception that
this right is limited in the case of international straits.
The right to transit passage through international straits is more generous than the right to innocent passage through
other parts of the territorial sea in that
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a. it expressly allows passage by state aircraft, including military aircrafts;

b. it probably allows passage by warships; and
c. it may even extend to include underwater passage by submarines. It is also less restrictive of conduct during
passage and gives the coastal state less power to regulate passage.
The provisions of the 1982 Convention are viewed by some as stating what was already customary international
law.
F. CONTIGUOUS ZONE
The contiguous zone can extend up to 24 nautical miles from the state’s baseline. It is called the contiguous zone
because it is adjacent to the territorial sea.
If a ship is found 8 miles from a state’s baseline, that ship might be positioned in the territorial sea and the
contiguous zone.
Article 33 of UNCLOS- allows the coastal state to exercise control that is necessary to prevent certain types of
infringement of certain types of laws in this zone: custom; fiscal; immigration or sanitary.
(1) Jurisdiction
Can the state assert jurisdiction if a ship has breached one of the aforementioned? No because according to Article
(1) (b) there is an express mention of infringement of laws in the territory or territorial sea and there was no
mention of the contiguous zone. Jurisdiction can only assert in its territorial sea or territory.
UK has enacted “Hovering laws” making at offence for ships to hover or transmit cargo that would breach the laws
of the territorial sea.
The Pueblo Incident

In January 1968, The Pueblo, a US spy ship was ordered to heave to by North Korean patrol ships off the coast of
North Korea. The ship was captured by the Koreans 15 miles from the nearest land. An American injured in the
struggle during the ship’s capture later succumbed to his injury. In February, the US sent a telegram to all its
diplomatic posts stating that the US did not know how much territorial sea was claimed by North Korea and had
reasonably assumed it to be 12 miles. The telegram also stated that the ship was a US navy vessel and therefore
subject to immunity in accordance with both the 1958 Convention and traditional international law. From the US
perspective the ship had been captured on the high seas and not in North Korean waters. The US argued that even
if the ship had been seized in North Korean waters the seizure would have been improper since in the absence of
threat of armed attack (which was lacking in the case) the strongest action that could be legitimately taken by a
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coastal state was to escort a foreign naval vessel out of its territorial waters. This restriction on a coastal state’s use
of force is articulated in Art.23 of the 1958 Convention.
The ship’s crew was detained without trial until December when they were returned to the US after US admission
that the ship had been spying in Korean territorial sea.
G. ARCHIPELAGIC WATERS
In 1957 Indonesia announced that it would measure its territorial sea over which it would exercise absolute
sovereignty from straight baselines connecting the state’s outermost points but that it would allow the innocent
passage of foreign vessels through these waters as long as it was not contrary to the state’s security. The UK
protested. The International Law Commission failed to formulate a rule on archipelagos and the 1958 Convention
made no provision for the matter.
Art.47 of the 1982 Convention provided that straight baselines could be used by mid-ocean archipelagic states but
not by continental states with off-lying archipelagos. Art.49 places the waters thus enclosed within the sovereignty
of the archipelagic state but made them subject to the right of innocent passage provided for in Art.52 and the right
of archipelagic sea-lanes passage provided for in Art.53 which is similar to the right of transit passage through
international straits and includes over flight by aircraft. The right of archipelagic sea-lanes passage, unlike the right
to innocent passage is not suspendable. Art.51 imposes limitations on the archipelagic state. It must recognize and
respect the legitimate activities of neighboring states.
The waters on the landward side of the baseline are called archipelagic waters which allow for a right of innocent
passage. The archipelagic waters can have archipelagic and internal waters.
Article 47: An archipelagic state may draw archipelagic baselines that encompass a ratio of up to 9:1.
Article 47 (2): the length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the
total number of baseline enclosing any archipelago may exceed that length, up to a maximum length of 125
nautical miles.
There are 2 types of passage:

(1) innocent passage
(2) the archipelagic sea lanes passage (Article 53).
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Article 52: subject to article 53 and without prejudice to article 50, ships of all states enjoy the right of innocent
passage through archipelagic waters.
Article 52 (2): the state may, without discrimination in form or in fact among foreign ships suspend temporarily in
specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for
the protection of its security. Such suspension shall take effect only after having been duly published.
Article 53: an archipelagic state may designate sea lanes and air routes thereabove, suitable for the continuous and
expeditious passage of foreign ships and aircrafts through or over its archipelagic waters and the adjacent territorial
sea.
*Sea lane passage is similar to transit passage, in that it cannot be suspended.
H. Exclusive Economic Zone (EEZ)
(1) Legal Status
EEZ can extend up to 200 miles from coastal state’s baseline (Article 57 of the UNCLOS). Its status under
customary international law was recognized almost immediately.
The exclusive economic zone combines and develops the concept of the exclusive fishing zone (a zone of the sea
adjacent to a coastal state’s territorial sea within which it has exclusive jurisdiction over fishing) and the doctrine of
the continental shelf. In the 1940s certain Latin American states claimed up to 200 miles of exclusive fishing zone.
This was protested by many other states. In 1958, it was agreed by the majority of states that in the absence of
contrary agreement fishing beyond territorial sea was open to all states. A 12-mile exclusive fishing zone has since
been generally accepted. However many states still claimed 200 miles of exclusive economic zone and this has
now become a common practice of states to the extent that there is now little protest against it.
Continental Shelf Case (Tunisia v. Libya)

‘The concept of the EEZ…may be regarded as part of modern international law.
Continental Shelf Case (Libya v. Malta)

The institution of the EEZ…is shown by the practice of states to have become part of customary law.
“La Bretagne” Arbitration (France v. Canada)

Majority: ‘The third UNCLOS and the practice followed by states on the subject of sea fishing even while the
Conference was in progress have crystallised and sanctioned a new international rule to the effect that in its
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economic zone a coastal state has sovereign rights in order to explore and exploit, preserve and manage natural
resources.’
US Proclamation of an EEZ, march 10 1983

“Whereas international law recognises that, in a zone beyond its territory and adjacent to its territorial sea, known
as the EEZ, a coastal state may assert certain sovereign rights over natural resources and related jurisdiction;…
“Now, therefore, I, Ronald Reagan, by the authority vested in me as President by the constitution and laws of the
United States of America, do hereby proclaim the sovereign rights and jurisdiction of the United States of America
and confirm also the rights and freedoms of all States within an EEZ, as described herein. The EEZ of the United
States is the zone contiguous to the territorial sea, including zones contiguous to the territorial sea of the United
States [and related territories and possessions]. The EEZ extends to a distance of 200 nautical miles from the
baseline from which the breadth of the territorial sea is measured.
(2) Conflicts
Article 59: In cases where this Convention does not attribute rights or jurisdiction to the coastal state or to other
states within the EEZ, 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 equity and in 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.
(3) Jurisdiction
Article 56 (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.
In the EEZ, other states enjoy right such as: Navigation; oversight; lay cables
Article 60 the coastal state is given strong rights to regulate activities within the EEZ:
(1) the right to exploit resources
(2) the right to protect and conserve resources
(3) to set up structures and to regulate sea traffic around these structures.
Article 73- gives coastal states powers to protect these rights. They are given the right to:
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Board; inspect; arrest and take judicial proceedings, if a ship has violated an EEZ regulation. These powers apply
to the ship and the crew. The Convention says that enforcement against the crew cannot include corporal
punishment and the crew must be released upon bond being posted.
I. CONTINENTAL SHELF
The US was the first country to claim specific rights over the continental shelf area, which was done by the
Truman Proclamation on the Continental Shelf which sets out:
(1) the continental shelf is an extension of the coastal state.
(2) states had exclusive rights over this area
(3) stated that a coastal state can claim the natural resources of a continental shelf
(4) introduced the idea that the waters above the continental shelf remained part of the High Seas.
The US recognized the need to encourage the discovery and provision of resources and the need for jurisdiction to
govern the use and conservation of these resources. The US saw it as reasonable and just for this jurisdiction to be
exercised by the contiguous state since the continental shelf usually forms a seaward extension of deposits within
the territory and can therefore be considered an extension of the landmass appurtenant to the coastal state. In light
of this the US declared its policy to treat the natural resources of the subsoil and sea bed of the continental shelf
beneath the high seas but contiguous to the coasts of the US as appertaining to the US and subject to its jurisdiction
and control. Where the continental shelf extended to another state’s territory, the US and that state would determine
the boundary in accordance with equitable principles.
Notes
The Truman Proclamations represents the first of many such declarations. It was aimed at filing a gap in
international law.
The continental shelf generally extends to a depth of about 200 metres but goes beyond this in some places. It
varies in width.
In 1951, in the Abu Dhabi Arbitration, Lord Asquith in considering the status of the continental shelf doctrine in
customary international law said that it was too tentative, explorative and incomplete to be an established rule of
international law.
Notes: No territorial sovereignty
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The Truman Proclamation and other similar declarations make no claim to sovereignty and Art.77 of the 1982
Convention awards none. Art.77 gives coastal states only limited rights over continental shelves. Those states
which have claimed national sovereignty have met with protest.
Notes: Living resources

Customary international law prior to the Conventions probably resolved disputes over living organisms based on
occupation. More likely as progressive development than codification, the 1958 and 1982 Conventions provided
for both living and mineral resources although the Truman Proclamation was only concerned with mineral
resources.
Art.77 (4) of the 1982 Convention refers to ‘living organisms belonging to the sedentary species’. This group
appears to include creatures which crawl on the sea floor but exclude creatures which swim. In 1963, a conflict
occurred between France and Brazil over the fishing of crawfish in the Brazilian continental shelf. Crawfish
generally clamber about but will swim if pursued. Both states disputed whether crawfish were included in the
provision. Although neither state was a party to the 1958 Convention both relied on it to support their claims.
Notes: Maritime boundaries

There have disputes concerning the boundaries between continental shelves and exclusive fishery zones. These
have at times been treated as a single boundary and at other times as separate boundaries. While a few disputes
have been decided on the basis of the 1958 convention, the majority has been decided on the basis of customary
international law. The ICJ and Arbitral tribunals have tried to apply the same general approach in customary and
treaty law to cases while in each case considering those factors emphasized by the particular facts.
Art.83 of the 1982 Convention requires that states disputing continental shelves reach an equitable agreement on
the basis of international law and where this is not achieved to resolve the dispute in accordance with the
Convention.
Art.6(2) of the 1958 Convention gives states the right to make agreements and demands the application of an
equidistance rule in the absence of such agreement.
The court was called upon in the North Sea Continental Shelf Cases and others to decide on continental shelf
delimitations. The ICJ in the North Sea Continental Shelf Case involving Tunisia, after ruling that the provision in
the Convention was not applicable to the case, achieved an equitable result by applying customary international
law. The court stressed that each case needed to be judged on its own merits and having regard to its particular
circumstances. Following this approach, the court decided not to apply the equidistance rule in that case. Then, in
the North Sea Continental Shelf Case involving Malta, it stressed reliance on the equidistance rule in the case of
opposite states. It would appear from both North Sea Continental Shelf Cases that the factors peculiar to each case
were important considerations but nevertheless had to be servient to the need to satisfy equitable principles.
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It is only in the Gulf of Maine Case that the ICJ was called upon to determine the ‘single maritime boundary’
between continental shelves and exclusive fishing zones. There too the court recognized the need to achieve an
equitable result and therefore saw it necessary to rule out the application of any particular criteria which might
prejudice the continental shelf or the water area above it. Although both states were parties to the 1958 Convention
the court held that Art.6 (2) of the Continental Shelf Convention did not apply since the issue here was the
delimitation of a single maritime boundary.
In the Anglo-French Continental Shelf Case the court was asked to delimit the continental shelves of the UK and
France. In this case, the court of arbitration in contrast to the ICJ decided the case on the basis of Art.6(2) to which
both states were parties. The court observed that the effect of Art.6 was to combine the equidistance principle and
the special circumstances rule into one rule so that in each case both had to be considered.
Thus both the 1958 Convention and customary international law, and now Art.83 (1) of the 1982 Convention
require equitable solutions. However states differ as to what they consider equitable.
North Sea Continental Shelf Cases

Attempts were made to delimit by bilateral agreement the continental shelves shared by Germany and Denmark
and Germany and The Netherlands. The parties could not agree on the delimitation of more than a small area. The
parties submitted the question to the ICJ. The court had to decide the rules and principles of international law
which needed to be applied in the process of delimitating these continental shelves. Denmark and The Netherlands
argued for the use of the ‘equidistance-special circumstances principle’ in Art.6 (2) of the 1958 Convention which
they claimed declared customary international law. Alternatively, they argued that even if the rule did not exist
prior to the Convention, subsequent state practice had made it a rule binding on all states and therefore applicable
to the delimitation in question. Germany argued for ‘the doctrine of the just and equitable share’. Germany opposed
principle suggested by the other two states because, in the case of a concave coastline, it had the effect of giving
the middle state (here, Germany) a smaller share of the continental shelf than would otherwise be had.
The court rejected Germany’s proposal and the proposal and the claim of Denmark and The Netherlands that Art.
6(2) represented customary international law at the time of adoption.
HELD: The court stated that opinio juris and extensive and virtually uniform participation of states in the practice
(even if over a relatively short period) could make a Convention binding even on states which are not parties to it
so long as it evidences a recognition of legal obligation. The provision would have to be of such a norm-creating
character as could be regarded as forming the basis of a general rule.
In this case the court found that the provision (Art.6) was neither sufficiently definite nor obligatory to meet this
requirement and it was not worded in such a way as to have a norm-creating character. It also found no evidence
that the states involved felt any legal obligation to use apply the equidistance principle.
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The court therefore held that the parties were not obligated to use the equidistance principle or any other method of
delimitation for that matter. The court identified the principles and rules of international law to be applied as
follows:
(i) delimitation was to be by agreement in accordance with equitable principles with all relevant circumstances
taken into account.
(ii) any overlapping areas left by the above application should be divided either equally of in agreed proportions
unless a regime of shared jurisdiction can be agreed upon.
The court also held that the following factors were to be taken into account:
(a) the general configuration of the coasts
(b) the ascertainable physical and geographical structure and the natural resources of the area
(c) the element of a reasonable degree of proportionality which should result from equitable delimitation.
DISSENTING OPINION: the practice of states adopting or following the rules and principles of the Convention or
acquiescing to their application is sufficient to satisfy the criteria for a general rule of international law. A rule need
not be universally accepted to be binding. It is enough if the majority of the interested states adopt it in their
practice. Opinio juris is a difficult doctrine to apply because it will hardly be possible for a state to prove the
motives of another state. Thus considered, the Convention should be regarded as having attained the status of
generally accepted rules of international law. Had Germany persistently objected to the Convention, it would not
now be applicable to her but Germany had signed the Convention and relied on it in the past.
Article 76: Continental shelf is the area beyond the state’s territorial sea which a natural prolongation of the state’s
land territory.
Continental margin is the zone that separates the continent from the deep sea bed floor.
The outer edge of the continental shelf can be 350 miles from the baseline if using the continental margin. The
other outer edge is 100 miles from the 2,500 metres isobath (line depicting where the sea reaches the depth of
2,500). It shows that if the margin extends that far, the greater distance could be used.
If the continental margin does not extend that far, the continental shelf can only extend up to 200 miles from the
baseline. It can never include the deep ocean floor.
A state can have a minimum distance of 200 miles if the continental margin does not extend further.
Article 77: the coastal state has exclusive rights to explore and exploit the resources of continental shelf.
The coastal does not gain ownership regarding the waters above the continental shelf or the air space.
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Article 83: pertaining to neighbouring states—disputes regarding to the delimitation of the continental shelf should
be settled by agreement or application of international law so as to arrive at an equitable solution.
Article 83 (2): if the agreement can not be reached the parties must resort to dispute procedures under the
convention.
J. HIGH SEAS
In earlier days, there were two types of seas—territorial and high seas. The UN Convention defines the high seas in
Article 86—it includes all parts of the sea not defined as territorial water, EEZ, archipelagic waters. This definition
is not meant to change the rights of that state in the different zones.
(1) Freedoms
(a) Historical Claims to ‘Ownership’ of the Seas
An example of a claim to ownership over the high seas can be found in a papal bull addressed to the Portuguese in
the 15th century regarding ownership of western Africa.
A later denial of such claims is found in a letter by Queen Elizabeth protesting the ability of Spain to exclude
England from the West Indies.
(b) Modern Freedoms
The High Seas are regarded today as res communis. No state can own them and it is an area over which all states
have freedoms.
Lotus Case
‘Vessels on the high seas are subject to no authority except that of the State whose flag they fly. In virtue of the
principle of freedom of the high seas, that is to say, in the absence of any territorial sovereignty over the high seas,
no state may exercise any kind of jurisdiction over foreign vessels upon them.
Article 89: no state can exercise sovereignty over the high seas.
Article 87: sets out freedoms all states enjoying- oversight, fishing, scientific research
Article 87: all these freedoms should be exercised so as to not infringe another state’s ability to exercise theses
freedoms
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Article 88: it is to be used for peaceful purposes

Article 90: every state has the right to sail ships on the high seas.
(2) Nationality of Ships
Article 91: 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. Ships have the nationality of the state whose flag they are entitled to
fly. There must exist a genuine link between the state and the ship.
Review the M/V “Saiga” Case
(3) Jurisdiction
Article 92 of UNCLOS states that ships are subject to the exclusive jurisdiction of their flag state and it should be
borne in mind that any other rule that permits another state to assert jurisdiction over a foreign ship is an exception.
Article 92 sets out the default rule: except otherwise expressly provided, flag ships are subject to the exclusive
jurisdiction of the flag state. The main exceptions allow any state to exert jurisdiction to prevent:
 Transport of slaves
 Piracy
 Drug Trafficking
 Unauthorised Broadcasting
The powers of enforcement are strongest with respect to the first two categories. Article 101- defines piracy as
certain illegal acts of violence or detention carried out by the crew or passengers on board a private ship against
another ship on the high seas. It would appear that a government ship could not commit piracy. However, Article
102- piracy can be committed by a government ship or a war ship after a mutiny has occurred. Article 107- seizure
of the pirate ship can only be done by a war ship or a clearly marked government vessel. If the ship has been
seized without adequate grounds compensation has to be paid.
Article 108-109: war ships other than that of the flag state can stop foreign ships, if they suspect them of drug
trafficking or unauthorized broadcasting.
Enforcement powers given to states are not as strong as those given for enforcing laws against piracy and slave
trading
Article 110: a state can send a party to check the ship’s docs and inspect the ship. If the suspicions are unfounded,
the ship has to be compensated.
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In the event of a collision on the high seas only the flag state can exert jurisdiction.
Article 98- imposes a duty to come to the aid of danger in the high seas.
Only in the state’s internal waters does the state have complete jurisdiction
The state has limited state criminal jurisdiction in its territorial sea.
In all of the other zones, jurisdiction is only against crimes that violate the rules of that zone.
With respect to slave trading and piracy, any state can exert jurisdiction anywhere.
K. THE DEEP SEABED
1970 UNGA RESOLUTION 2749: DECLARATION OF PRINCIPLES GOVERNING THE SEABED AND
THE OCEAN FLOOR, AND THE SUBSOIL THEREOF, BEYOND THE LIMITS OF NATIONAL
JURISDICTION.
The General Assembly affirmed that there was an area seabed etc. beyond national jurisdiction, the limits of which
are yet to be determined and the exploration of which was not governed by the existing legal regime of the high
seas. The UNGA then declared the area to be the ‘common heritage of mankind’ and therefore not subject to any
means of appropriation by or the sovereignty of any state. No entity was to acquire rights over the area
incompatible with the principles of the declaration and the regime to be established to provide for the development
of the area, manage its resources and govern all activities within it regarding exploration and exploitation of its
resources. Such activities must be for the benefit of mankind as a whole with special consideration for developing
countries. The regime should ensure the equitable distribution of the benefits derived from the area. The area shall
be open to use exclusively for peaceful purposes by all states coastal or not. In the interest of peace, security,
cooperation and mutual understanding, states shall act in accordance with the principles of international law while
in the area.
Notes:
1. Part XI (Arts.133-191) of the 1982 Convention established the regime referred to in the 1970 UNGA
Resolution. Although it was ratified by enough developing states to come into force in 1994, it was not
accepted by many developed states and this led to problems of funding which threatened the success of the
1982 Convention. As a result a supplemental or auxiliary agreement was signed in 1994 which modified
Part XI to meet the objections of the developed states and thereby facilitate their acceptance of the
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Convention. The 1994 Agreement came into force in 1996 and Part XI is now being implemented in
accordance with it.
2. The Convention adopts the idea that the area is ‘the common heritage of mankind’ and therefore not subject
to the sovereignty of any state. The Convention adopted a system of ‘parallel access’ as a comprise between
the demand of the developed states for an international body to conduct a system of exploitation of the area
and that of the developing states for exploitation by national undertakings subject to registration or license.
Art.153 gives control of activities within the area to an Authority empowered to either exploit the resources
itself or contract with national undertaking. The 1994 Agreement made changes relating to the management
of finances for the Authority.
3. The Authority is provided for in Arts.156-168 of the Convention. It was established in 1994 and sits in
Jamaica. It is supplemented by the Enterprise which is responsible for conducting the actual deep seabed
activities of the Authority. The Authority is comprised of an Assembly of all the states which vote on policy
and a Council of 36 elected states which acts as the executive body deciding questions of substance. The
1994 Agreement has the effect of increasing the powers of the Council (which is highly influenced by
developed states) at the expense of the Assembly.
4. The Convention made no provision for the protection of the pre-Convention investments of states in
exploration but a Resolution has subsequently been passed which gives such states priority in the allocation
of contracts.
5. The reciprocal states regime: The US, the UK and other developed states rejected the 1982 Convention and
instead enacted legislation giving themselves the authority to issue licenses for the exploitation of deep sea-
bed resources.
L. HOT PURSUIT
Hot pursuit may be defined as a right given to the coastal state to pursue and arrest foreign non-military ships that
violate national laws.
According to McNair, Britain has repeatedly affirmed the right to hot (i.e. immediate) pursuit even where the
offending ship has reached the high seas. According to an 1891 Opinion seizure beyond territorial waters is
justified as long as the pursuit was undertaken immediately on commission of the offence. The question of
immediacy was a question of fact.
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In 1852 it was advised that the degree of force did not include resort to arms and this could only be justified where
resistance was threatened or offered or where escape was imminent. It was also suggested that it should be such as
to disable the vessel without risking life.
States generally recognize the right to continue on the high seas a pursuit begun within territorial waters but
disagree on whether the entry of the vessel into another state’s territorial waters suspends or ends the pursuit.
Article 111: The hot pursuit of a foreign ship may be undertaken when the competent 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, as
defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection
of which the zone was established.
111 (3): 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.
111 (5): 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.
111 (8): 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.
R v. Sunila & Solayman

“International law has always recognised the right of a state to pursue and arrest a foreign ship on the high seas,
and to return that ship to its ports to answer charges committed by the ship and her crew within the state’s territorial
waters. This right is not based upon international treaty but upon the ancient principles of the law of the nations…”
Often two ships can be in the commission of a crime. Mother ship can send a ship to directly commit the violation.
The right of hot pursuit is exercisable in fisheries zones, which are not the same thing as the state’s EEZ.
US v. Fishing Vessel Taiyo Maru No. 28
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A Japanese ship found fishing illegally nine miles offshore in the US EEZ was pursued by the US coastguard
vessels and seized some 68 miles off land on the high seas. The Court held that ‘neither the language nor the
history of the [1958] Conventions shows that the signatory parties intended to limit the right of a coastal state to…
conduct hot pursuit from…[an exclusive fishing] zone.’
R v Mills
The Poseidon, a Vincentian diving vessel registered in the Caribbean, transferred cannabis which it had transported
from Morocco to the Delvan, a British fishing vessel which had sailed from Ireland. The transfer took place on the
high seas 100 miles west of the UK. The plan was for the British ship to take the cannabis to the UK. A British
naval vessel observed the transfer and followed the Poseidon further out into the Atlantic. A British customs vessel
followed the Delvan until it landed in Britain and arrested those involved. The order was given to the naval vessel
to arrest the Poseidon. Attempts to communicate with the Poseidon failed and the British boarded it and arrested
the crew none of whom were British nationals. This arrest was made in international waters (the Poseidon having
never come into British territorial waters). The defendants (D) applied for a stay of proceedings on the grounds of
abuse of process stemming from the fact that they were arrested on the high seas in breach of international law. The
Crown argues that the court had no jurisdiction to hear the application because the Convention upon which D relied
was a treaty and not a part of British law. The court after deciding that it had jurisdiction because the treaty only
declared existing principles of customary international law which had been incorporated into English common law,
considered whether the arrest had been lawful under the international law doctrine of hot pursuit.
The court held that the doctrine incorporated the notion of constructive presence for ships outside a state’s
territorial waters which is working as a team with a ship within the state’s jurisdiction. In response to D’s argument
that pursuit should have begun immediately upon the Delvan’s entry into British territorial waters, the court said
the Convention was silent on the matter of time of entry.
The court quoted the statement of one international jurist that the right of hot pursuit was to be exercised in
exceptional circumstances and that while its exercise could only be justified by the need for urgent/immediate
action, immediacy was not to be interpreted strictly. Since it is now possible to identify and accurately track the
position of a vessel without maintaining contact with it, the right to hot pursuit will not be lost merely because of
delay especially in a case such as this where because the offence of conspiracy is a continuing offence the right
may not have arisen until its completion.
In response to D’s argument that the ship had been signaled by radio and this did not comply with the requirements
of Art. 23(3), the court said although the 1958 Convention did not regard such signals as lawful, modern
technology had advanced to the point where signal by radio would suffice if it were clear that the signal had been
received and understood by the offending ship.
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The court therefore held that the Poseidon had been properly arrested in international waters under the Convention
and in accordance with the international law of the sea and as such D’s application would not be allowed.
The Red Crusader Case

This case concerns the level of force the coastal state can use in hot pursuit.
A Danish fisheries inspection vessel arrested a Scottish trawler, The Red Crusader, off the Faroes and ordered it to
proceed to the Faroes for trial for fishing in an area in which this was prohibited by a Danish-UK treaty. After
obeying for a while, The Red Crusader, with Danish crew from the fisheries inspection vessel stationed on board,
sought to escape. Thereupon, the Danish vessel fired warning shots close to The Red Crusader and ordered it to
stop. When these warnings were not heeded, The Red Crusader was fired upon directly with solid shot [but not
sunk]. All of the firing occurred in Faroese territorial waters. In its Report, an Anglo-Danish Commission of
Enquiry found:
‘In opening fire…the Commanding Officer…exceeded legitimate use of armed force on two counts: (a) firing
without warning of solid gun-shot; (b) creating danger to human life on board The Red Crusader without proved
necessity…
The Commission is of the opinion that other means should have been attempted, which, if duly persisted in, might
have finally persuaded the Skipper Wood to revert to the normal procedure which he himself had previously
followed.
M. V. Saiga Case
The conditions imposed by the UN Convention are cumulative—all must be satisfied for hot pursuit to be lawfully
exercised.
There must be a legal basis for a pursuit. On the facts of it, there was no evidence that the Saiga had infringed any
laws of Guinea.
As it relates to the method of pursuit, it was found that several breaches had occurred in the method of pursuit as
outlined in the UNCLOS. There was no auditory warning and it was not continuous.
On the facts of the case, the tribunal found that the Saiga was a fully loaded ship and it could only proceed at a
slow pace. Thus, there was no need to use live rounds (level of force must be commensurate with the
circumstances).
Guinea breached the laws of the UN Convention with respect of the actions they took with regard to boarding the
vessel. The Guinean officials boarded the vessel without any resistance but proceeded to fire on the deck. That
level force breached UNCLOS.
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M. MARITIME BOUNDARIES
Because the areas of the continental shelf and EEZ will overlap, states increasingly seek to create maritime
boundaries between one another, i.e. to create a boundary for both zones simultaneously.
Land and Maritime Boundary between Cameroon and Nigeria
Cameroon and Nigeria are adjacent states, with a land border that reaches the sea in the south on the Gulf of
Guinea. In this case, the court was asked, inter alia, to delimit a single maritime boundary beyond the limits of the
territorial sea that would divide both the continental shelves and the EEZs of the two states.
The ICJ notes that the concept of a single maritime boundary applying to two or more jurisdictional zones is not
one that is provided for in the 1982 Convention, to which they were both parties. The ICJ identifies the ‘equitable
principles/relevant circumstances’ rule, the overall purposes of which is to achieve ‘an equitable result’, as the rule
which applies to single maritime boundaries. Although the ICJ said it was stating a rule governing single maritime
boundaries, it is very likely that the ‘equitable principles/relevant circumstances’ rule has general application,
applying to the delimitation of separate territorial sea, exclusive fishing zone, EEZ and continental shelf boundaries
also.
ICJ:
- UN Convention requires delimitation for an equitable solution.
- The drawing of a single maritime boundary line is expressly permitted in the UN Convention but it is
permissible
- When the line is drawn it must be done in such a way to prioritize the right of each zone (EEZ over
continental shelf)
- Court adopted equidistance relevant circumstances approach which is a two step process:
(1) draw a provisional equidistance line—every point along this line is an equal distance from the nearest
points on the baseline of the state
(2) any need to adjust the line in light of the circumstances
- Equity does not imply equality.
- Achieving an equitable result does not involve refashioning nature.
Every relevant circumstance was rejected by the ICJ. One of them was the concavity of the coastline—if the state
has a concave coastline, it would have some bearing. Rejected. Another was the difference in the lengths of the
coastline—dismissed on the facts (similar coastal line). Role of oil concessions—if a state granted oil concession, it
might have something to say about how the two states agree how the area should be managed—rejected.
Arbitration between Barbados and Trinidad & Tobago
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In February 2004, Barbados initiated arbitral proceedings, pursuant to UNCLOS, relating to the delimitation of a
single maritime boundary between the EEZ and the continental shelves of it and Trinidad and Tobago. In April
200? ;(, the five-member Arbitral Tribunal issued its award. Both sides were claiming victory at the end of the
dispute. Since the late 1970s, both parties had been engaged in discussion on the use of resources in the EEZ as it
relates to fisheries and hydrocarbons. Between 2000-2003, negotiations became a lot more focused. In that same
month that negotiations were supposed to be resumed, T&T arrested Barbadians fishing in Tobago. In February
2004, Barbados instituted proceedings. Barbados requested a single maritime boundary for the EEZ and contiguous
zone.
The Tribunal followed the equidistance relevant approach.

Barbados had requested that the Western zone should be adjusted as Barbadian fisher folk had traditionally fished
for centuries and were critically dependent on this. Trinbagonians did not fish there and were not critically
dependent on it. It was held that there was no conclusive evidence and none of these arguments could merit, on a
legal basis, an adjustment of the equidistance line.
The second line of argument put forward was that Barbadians should be allowed access to the flying fish when
there are in Barbadian waters. The Tribunal found it did not have jurisdiction to make such an award because that
consideration was of a different nature and was outside the jurisdiction for the dispute that came before it. The
Court found that T&T was obliged to negotiate in good faith to allow Barbados access to the fisheries with in
T&T’s EEZ. The basis for this finding was that the AG had indicated to the tribunal that T&T was ready to
negotiate such an agreement with Barbados. The tribunal found that the commitments made by an agent of the state
could be binding (Eastern Greenland case).
What relevant circumstances invoked by T&T to justify the shift of the line:
(1) The projection of the relevant coasts (T&T had broad coastal frontages which allowed for disparities in
lengths of the coast of the respective states). Tribunal agreed with this argument
(2) The proportionality of the length of the coast of the parties. T&T tried to use a mathematical formula to
apportion. Found that proportionality was relevant, but only to look at the tentative result and to see
whether the result is disproportionate, not a mathematical formula.
(3) Tried to rely on delimitation between other states in the region. T&T and Venezuela is relevant.
*In the Eastern portion, there were some adjustments because of the coastal frontages that T & T had.
* Decision does not allow access. The ruling imposes an obligation for T&T to reach an agreement with Barbados
based on negotiations conducted in good faith.
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N. SETTLEMENT OF DISPUTES
Under the UNCLOS parties are mandated to settle their disputes. The UN Convention requires states to use the
different methods such as, arbitration, conciliation… (PIL 1).
If they fail then recourse would be had to:
(1) International Tribunal for the Law of the Sea
(2) Arbitral Tribunal on the law of the Sea
(3) The ICJ
(4) A special arbitral tribunal set out in the UNCLOS
Arbitration is the method to be used if both states had not filed a declaration, or if different methods and
approaches are used by both parties.
***Deep sea bed disputes must be handled by a special tribunal

Decisions of these tribunals are final and binding on the parties
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Law of Sea Notes 2

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LAW OF THE SEA NOTES

1. Development of the Law of the Sea

The 1958 Conventions on Law of the Sea

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The 1982 Convention on the Law of the Sea

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2. Charts Illustrating General Areas of Maritime Territory

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The Schooner Exchange v McFaddon

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R v. Keyn - uncertainty on whether the international law supported 3 mile limit.

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Anglo-Norwegian Fisheries Case (UK v Norway)

The court considered three possible solutions:

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(a) Straight Baselines

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2 Not sure if this is a word

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(4) Jurisdiction (Civil, Criminal v. Innocent Passage)

The Corfu Channel Case

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The November incident:

Notes: Vessels entitled to innocent passage

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Notes: The meaning of passage

Notes: Innocence of passage

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Notes: Laws governing passage

Notes: Enforcement powers in respect of non-innocent passage

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Government Ships that are operating for commercial purposes

Government ships operated for non-commercial purposes and war ships

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2. Innocent Passage and Transit Passage

Notes: The right of transit passage

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a. it expressly allows passage by state aircraft, including military aircrafts;

The Pueblo Incident

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There are 2 types of passage:

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H. Exclusive Economic Zone (EEZ)

(1) Legal Status

Continental Shelf Case (Tunisia v. Libya)

Continental Shelf Case (Libya v. Malta)

“La Bretagne” Arbitration (France v. Canada)

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US Proclamation of an EEZ, march 10 1983

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Notes: No territorial sovereignty

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Notes: Living resources

Notes: Maritime boundaries

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North Sea Continental Shelf Cases