Public International Law: Chapter VIII ー Territory: Law of The Sea

 Law of The Sea

  • The importance of the seas flows from two factors:
    1. they are a medium of communication
    2. they contain vast natural resources
  • In the 17th century, the Portuguese proclaimed vast areas of sea as belonging to itself. 
  • Grotius elaborated the doctrine of the open seas which considers the high seas as res communis accessible to all. 
    • res communis ー common things
  • The doctrine, however, recognized as permissible the delineation of a maritime belt by littoral states as an indivisible part of its domain. This belt is the territorial sea.
  • Much of the history of the law of the sea has centered around the extent of the territorial sea. But over the years, other jurisdictional issues have occurred and today the prevailing law on maritime domain is the Convention on the Law of the Sea of 1982 (LOS).
  • Many of the provisions of the 1982 Law of the Sea are a repetition of earlier convention law or a codification of customary law.
  • The basic statement of the extent of a state’s sovereignty over waters is set down in Article 2 of the 1982 Law of the Sea:
Article 2. Legal status of the territorial sea, of the air space 
over the territorial sea and of its bed and subsoil.
  1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.
  2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.
  3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.
Territorial sea.
  • The territorial sea is a belt of sea outwards from the baseline and up to 12 nautical miles beyond. 
  • The width of this territorial belt of water has been the subject of much disagreement. 
  • The original rule was the “cannon shot” rule.
    • That is the width of water was measured in terms of the range of shore-based artillery. 
  • Later this became the three-mile rule. 
    • The three mile rule has now been discarded in favor of the twelve-mile rule now found in Article 3 of the 1982 LOS.
  • Where, however, the application of the twelve-mile rule to neighboring littoral states would result in overlapping, the rule now established is that the dividing line is a median line equidistant from the opposite baselines. 
  • But the equidistance rule does not apply where historic title or other special circumstances require a different measurement. 
Baselines: “normal" or “straight"
  • To understand the extent of the territorial sea one must begin with an understanding of baselines. 
  • The baseline is “the low-water line along the coast as marked on large scale charts officially recognized by the coastal State.” (Section 5,182 LOS)
    • The width of the territorial sea is measured from the baseline.
  • There is no fixed norm for determining the “low water mark” but the Anglo-Norwegian Fisheries Case (U.K. v. Norway ICJ 1951) has suggested that:
    • “for the purpose of measuring the breadth of the territorial sea, it is the low-water mark as opposed to the high-water mark, or the mean between the two tides, which has generally been adopted in the practice of States. This criterion is the most favorable to the coastal State and clearly shows the character of territorial waters as appurtenant to the land territory.”
  • There are two ways of drawing the baseline:
    1. Normal Baseline
      • The “normal” baseline is one drawn following “the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.”
      • This line follows the curvatures of the coast and therefore would normally not consist of straight lines.
    2. Straight Baseline
      • Archipelagic states, however, instead of drawing “normal baselines,” have drawn “straight baselines.” 
      • Instead of following the curvatures of the coast, straight lines are drawn connecting selected points on the coast without appreciable departure from the general shape of the coast
      • This method of drawing lines was first upheld in the Anglo-Norwegian Fisheries Case which upheld the straight baseline unilaterally adopted by Norway. 
      • Likewise, R.A. No. 3046 and R.A. No. 5446 have drawn “straight baselines” around the Philippines.
  • The decision in the Fisheries Case upholding the “straight baseline method” eventually became part of convention law. Article 7(1) of the Convention on the Law of the Sea says:
    • “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 47 of the Convention on the Law of the Sea allows the use of the “straight baseline method” for archipelagic states with certain limitations.
Article 47 of the Convention on the Law of the Sea 

1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 

2. The length of such baseline shall not exceed 100 nautical miles, except that up to 3 percent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 

3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.

4. Such 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 where a low-tide elevation is situated wholly or partially at a distance not exceeding the breadth of the territorial sea of another State. 

5. The system of such baselines shall not be applied to an archipelagic State in such a manner as to cut-off from the high seas or the exclusive economic zone the territorial sea of another State. 

6. If a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighboring State, existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected. 

7. For the purpose of computing the ratio of water to land under paragraph 1, land areas may include waters lying within the hinging reefs of islands and atolls, including that part of a steepsided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau. 

8. The baselines drawn in accordance with this article shall be shown on charts of a scale or scales adequate for ascertaining their position. Alternatively, lists of geographical co-ordinates of points, specifying the geodetic datum, may be substituted. 

9. The archipelagic State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.


Sovereignty over Territorial Sea 
  • The sovereignty of the coastal state over its territorial sea and the airspace above it as well as the seabed under is the same as its sovereignty over its land territory. (Article 2, LOS) 
  • However, the sea is subject to the right of innocent passage by other states. 
  • The rule on innocent passage applies to ships and aircraft.
  • Submarines, moreover, must surface. 
  • Innocent passage is passage that is not prejudicial to the peace, good order or security of the coastal state. 
  • Article 19(2) enumerates acts that are not considered innocent passage thus: 
Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: 
  1. any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;
  2. any exercise or practice with weapons of any kind;
  3. any act aimed at collecting information to the prejudice of the defense or security of the coastal State;
  4. any act of propaganda aimed at affecting the defense or security of the coastal State;
  5. the launching, landing or taking on board of any aircraft;
  6. the launching, landing or taking on board of any military device;
  7. the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
  8. any act of willful and serious pollution contrary to this Convention;
  9. any fishing activities;
  10. the carrying out of research or survey activities;
  11. any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;
  12. any other activity not having a direct bearing on passage.

  • Coastal states have the unilateral right to verify the innocent character of passage, and it may take the necessary steps to prevent passage that it determines to be not innocent. 
  • The rule on innocent passage is also applicable to straits. In the Corfu Channel Case:
    • It is, in the opinion of the Court, generally recognized and in accordance with international custom that States in 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 a coastal State, provided that the passage is innocent. Unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such passage through straits in time of peace. 
  • This rule is now found in Article 45 of the 1982 Convention.


Internal Waters
  • Internal waters are all waters (part of the sea, rivers, lakes, etc.) landwards from the baseline of the territory. 
  • Sovereignty over these waters is the same in extent as sovereignty over land, and it is not subject to the right of innocent passage.
  • However, in Saudi Arabia v. Aramco (Arbitration 1963), the arbitrator said that according to international law — ports of every state must be open to foreign vessels and can only be closed when vital interests of the state so requires.
  •  But according to the Nicaragua v. US. (1986), a coastal state may regulate access to its ports.

Archipelagic waters. 
  • Article 8(2) of the Convention which says: 
    • “Where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters.” 
  • Article 53 of the Convention refers to this type of internal water as “archipelagic waters” and says that “[a]n archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.”
  • This provision was seen as posing a problem for Philippine law because Article I of the Philippine Constitution, which took effect in 1973 prior to the 1982 Convention on the Law of the Sea, considers all waters connecting the islands as internal waters. The Philippine government was clearly aware of these possible conflicts. Hence, upon its ratification of the Convention on the Law of the Sea on August 5, 1984, it added the following declaration:
1. The signing of the Convention by the Government of the Republic of the Philippines shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines; 

2. Such signing shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor to the United States of America, under and arising out of the Treaty of Paris between Spain and the United States of America of December 10, 1988, and the Treaty of Washington between the United States of America and Great Britain of January 2, 1930; 

3. Such signing shall not diminish or in any manner affect the rights and obligations of the Contracting Parties under the Mutual Defense Treaty between the Philippines and the United States of America of August 30, 1951, and its related interpretative instruments; nor those under any pertinent bilateral or multilateral treaty or agreement to which the Philippines is a party;

6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty, independence, and security; 

7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation.

  • However, concern about this problem may not be necessary because Article 8(2) itself says that the new rule applies only to “areas which had not previously been considered as ‘internal waters.”
  • The 1973 Constitution pre-dates the 1982 Convention.

Bays. 
  • The waters of a bay are considered internal waters of a coastal state. 
  • The rule on bays is found in Article 10 of the 1982 LOS: 
2. For the purposes of this Convention, a bay is a well- marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation. 

3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water mark of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water area of the indentation. 

4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters. 

5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. 

6. The foregoing provisions do not apply to so-called “historic” bays, or in any case where the system of straight baselines provided for in Article 7 is applied.

  • Historic bays are bays which are treated by the coastal state as internal waters on the basis of historic rights acknowledged by other states. 
  • A listing of historic bays may be found in Whitman, Digest of International Law (1965).
Contiguous zone. 
  • The contiguous zone is an area of water not exceeding 24 nautical miles from the baseline. 
  • It thus extends 12 nautical miles from the edge of the territorial sea.
  • The coastal state exercises authority over that area to the extent necessary to prevent infringement of its:
      1. customs
      2. fiscal
      3. immigration or 
      4. sanitation 
    • ...authority over its territorial waters or territory and to punish such infringement.
  • Article 33 (1 and 2), 1982 LOS says: 
1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: 

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; 

(b) punish infringement of the above laws and regulations committed within its territory or territorial sea. 

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. 

  • It should be understood, however, that, according to the International Law Commission’s Commentary on the Draft, the power of control given to the littoral state does not change the nature of the waters. 
  • High seas are the waters beyond the territorial sea and are not subject to the sovereignty of the coastal state.
Exclusive economic zone or “patrimonial sea.”
  • The doctrine on the exclusive economic zone is a recent development. Prior to the acceptance of this doctrine, all waters beyond the contiguous zone were considered as high seas over which no state had control. 
  • The doctrine developed owing to the desire of coastal states for better conservation and management of coastal fisheries.
  • The exclusive economic zone is an area extending not more than 200 nautical miles beyond the baseline. 
  • The coastal state has rights over the economic resources of the sea, seabed and subsoil — but the right does not affect the right of navigation and overflight of other states. 
    • This is a compromise between those who wanted a 200-mile territorial sea and those who wanted to reduce the powers of coastal states.
  • The provisions on the exclusive economic zone are both a grant of rights to and an imposition of obligations on coastal states relative to the exploitation, management and preservation of the resources found within the zone.
  • Coastal states have two primary obligations. 
    1. They must ensure through proper conservation and management measures that the living resources of the EEZ are not subjected to over-exploitation. 
      • This includes the duty to maintain and restore populations of harvested fisheries at levels which produce a “maximum sustainable yield.” 
    2. They must promote the objective of “optimum utilization” of the living resources. 
      • They therefore should determine the allowable catch of living resources. 
      • If the coastal state does not have the capacity to harvest the allowable catch, it must grant access to other states. 
  • The details on this matter are found in Articles 55 to 75. 
  • The delimitation of the overlapping exclusive economic zone between adjacent states is determined by agreement.

The Continental (Archipelagic) Shelf. 
  • The continental shelf, archipelagic or insular shelf for archipelagos, refers to:
  1. The seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea, to a depth of two hundred meters or, beyond that limit, to where the depth allows exploitation, and
  2. The seabed and subsoil of areas adjacent to islands. 
  • The coastal state has the right to explore and exploit its natural resources, to erect installations needed, and to erect a safety zone over its installations with a radius of 500 meters. 
  • The right does not affect the right of navigation of others. 
  • Moreover, the right does not extend to non-resource material in the shelf area such as wrecked ship and their cargoes.

The Deep Seabed: “Common Heritage of Mankind.”
  • These are areas of the sea-bed and the ocean floor, and their subsoil, which lie beyond any national jurisdiction. 
  • These are the common heritage of mankind and may not be appropriated by any state or person. 
  •  Activities in the area are governed by Articles 135 to l53 of the 1982 Convention.
Islands.

Article 121. Regime of islands
  1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
  2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone and the continental shelf of an island are determined in accordance with the provisions of the Convention applicable to other land territory.
  3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.
  • Islands can be very important because of the possibility of exploiting oil and gas resources around them. 
  • This explains the controversy over Spratleys. 
  • It is noteworthy that islands can have their own territorial sea, exclusive economic zone and continental shelf. 
    • However, rocks “which cannot sustain human habitation or economic life” only have a territorial sea. 
    • But there is no clear international law definition of “economic life” referred to in n. 3.
  • Artificial islands or installations are not “islands” in the sense of Article 121. 
  • However, coastal states may establish safety zones around artificial islands and prescribe safety measures around them. (Article 60[4] and [5])
The High Seas.
  • Article 1 of the Geneva Convention on the High Seas defines the high seas as “all parts of the sea that are not included in the territorial sea or in the internal waters of a State.”
  • The highs seas are subject to six freedoms:
    1. freedom of navigation; 
    2. freedom of overflight;
    3. freedom of fishing; 
    4. freedom to lay submarine cables and pipelines; 
    5. freedom to construct artificial islands and structures; and 
    6. freedom of scientific research.
  • The first four of the above freedoms were mentioned in the 1958 Convention of the High Seas and the last two were added by the 1982 LOS. 
  • But these two are subject to some restrictions. 
  • The flag state has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement. 
    • By legal fiction, a ship is a floating part of the flag state.
    • The law of the flag state is applied to it “on the pragmatic basis that there must be some law on shipboard, that it cannot change at every change of waters, and no experience shows a better rule than that of the state that owns it.”
  • Freedom of overflight belongs to both civilian and military aircraft. 
  • Freedom of fishing also includes the duty to cooperate in taking measures to ensure the conservation and management of the living resources of the high seas. 
  • Article 86 of the 1982 LOS, on the six freedoms, says: 
    • “The provisions of this part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a state, or in the archipelagic waters of an archipelagic state.” 
  • This, however, is not a definition of the scope of the area called “high seas.” 
  • As noted above, the contiguous zone is part of the high seas. What Article 86 does is to specify the areas that are not covered by all the six freedoms.
Hot Pursuit 
  • Article 111 allows hot pursuit of a foreign vessel where there is good reason to believe that the ship has violated laws or regulations of a coastal state. 
  • The pursuit must commence when the foreign vessel is within the internal waters, the archipelagic waters, the territorial waters or the contiguous zone of the pursuing state. 
  • It may continue into the high seas if the pursuit has not been interrupted. 
    • If the foreign ship is in the contiguous zone, it may be pursued only for violations of the rights of the coastal state in the contiguous zone. 
  • The right of hot pursuit shall also apply to violations of applicable laws and regulations of the coastal state in the exclusive economic zone or the continental shelf including the safety zones of the shelf.
  • Hot pursuit must stop as soon as the ship pursued enters the territorial waters if its own state or of a third state. 
  • Hot pursuit may be carried out only by warships or military aircraft, or any other ship or aircraft properly marked for that purpose.
  • In the case of The I’m Alone (29 AJIL 326), although the pursuit was found to be legitimate, the sinking of the pursued vessel was found to be “not justified by anything in the Convention ... [nor] by any principle of international law.” The Commission ordered the United States to apologize to the Canadian government and to pay damages.
Settlement of Disputes.
  • Peaceful settlement of disputes is compulsory. 
  • Under Part XV of the 1982 Convention States are required to settle peacefully disputes concerning the Convention. 
  • If a bilateral settlement fails, Article 285 requires submission of the dispute for compulsory settlement in one of the tribunals clothed with jurisdiction. 
  • The alternatives are the International Tribunal for the Law of the Sea, the ICJ, or an arbitral tribunal constituted under the Convention.


Practice Questions:
  1. What is the importance of seas in maritime law?
  2. Who elaborated the doctrine of the open seas in the 17th century?
  3. Define "res communis" in the context of the law of the Sea.
  4. Which convention is the prevailing law on maritime domain?
  5. What is the width of the territorial sea according to the 1982 Law of the Sea?
  6. Define "baseline" as per the Law of the Sea.
  7. What are the two methods of drawing baselines mentioned in the text?
  8. Explain the concept of "straight baselines" in maritime law.
  9. What is the relevance of Fisheries Case in determination of baseline.
  10. Describe the concept of innocent passage in the Law of the Sea.
  11. What activities are considered not innocent passage?
  12. Explain the rule of hot pursuit as per Article 111 of the 1982 Convention.
  13. What does the concept of "common heritage of mankind" refer to in maritime law?
  14. Define the term "island" in the context of the Law of the Sea.
  15. Describe the concept of "historic bays" in maritime law.
  16. What is the significance of the contiguous zone in maritime law?
  17. Explain the concept of the exclusive economic zone (EEZ) in maritime law.
  18. What obligations do coastal states have in the exclusive economic zone?
  19. Describe the delimitation process of the overlapping exclusive economic zone between adjacent states.
  20. What does the term "continental shelf" refer to in maritime law?
  21. Define the term "deep seabed" as per the Law of the Sea.
  22. Are artificial islands considered islands in the sense of Article 121?
  23. Do rocks have continental shelf?
  24. Explain the concept of "economic life" concerning rocks in the Law of the Sea.
  25. Explain the concept of "freedom of navigation" on the high seas.
  26. Define the concept of "hot pursuit" in the context of maritime law.
  27. Describe the process of peaceful settlement of disputes between states according to the Law of the Sea.
  28. What is the definition of the "high seas" according to the Geneva Convention on the High Seas? What is the scope of the high seas according to the 1982 Law of the Sea?
  29. What are the six freedoms of the high seas, and what do they entail?
  30. Describe the role of coastal states in regulating access to their ports.
  31. What is the importance of baselines in determining maritime boundaries?
  32. Explain the concept of archipelagic waters as per the Law of the Sea.
  33. What activities are restricted in the contiguous zone?
  34. What is the scope of "freedom of overflight" as per the Law of the Sea.
  35. Explain the concept of "optimum utilization" of living resources in the Law of the Sea.
View more practice questions here.

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