Law of the Sea

Question 1

Which Article of UNCLOS talks about ‘internal waters’?

Answer 1

Article 8:
Paragraph 1 states 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”.

Question 2

Give an overview of the case of Malta v. Libya (ICJ, 1985)

Answer 2

This case related to the delimitation of the areas of continental shelf appertaining to each of these two States.

Libya argued the principle of natural prolongation and the concept of proportionality, while Malta maintained that States’ rights over areas of continental shelf were now governed on the equidistance from the coast. The Court found that in view of developments in the law relating to the rights of States over areas of continental shelf, there was no reason to assign a role to geographical factors when the distance between the two States was less than 400 miles (as is here).

The Court also did not take Filfla into account when measuring the Libyan coastline, although Malta continues to claim Filfla as a base point.

Question 3

Explain a case (decided by the International tribunal for the law of the Sea) which discusses jurisdiction.

Answer 3

Name: M/V “Louisa” Case
(Saint Vincent and the Grenadines v. Kingdom of Spain) - 2013

In 2010, Saint Vincent and the Grenadines instituted proceedings before the Tribunal against Spain in a dispute concerning the arrest of M/V Louisa. The parties disagreed as to whether the Tribunal has jurisdiction to entertain the case.

Apart from other points of contention:
1. Saint Vincent argues that because of the detention of the M/V “Louisa”, the vessel was denied access to the high seas and that this detention violates the freedom of vessels under the flag of Saint Vincent (Article 87 of the Convention)
2. In response, Spain points out that the detention takes place on the high seas. Furthermore, while M/V Louisa was docked voluntarily in a Spanish port, Spain argues that the interpretation given to Article 87 is not in conformity with the true meaning of this provision, which is a codification of the long-standing norm of “mare apertum”.

Spain also argued that the vessel did not fulfil the international requirements for seaworthiness (due to expiration of certificates etc). (which the Tribunal disregarded)

The Tribunal stated that while is may not be disputed that the vessel was docked in a Spanish port, Article 87 cannot be interpreted in such a way as to grant the M/V “Louisa” a right to leave the port and gain access to the high seas notwithstanding its detention in the context of legal proceedings against it.

Ultimately, the Tribunal decided that it has no jurisdiction to entertain the Application.

Question 4

The case of R vs. Anderson (1868)

Answer 4

The Court of Criminal Appeal in the UK declared that an American national who had committed manslaughter on board a British vessel in French internal waters was subject to the jurisdiction of the British courts, even though he was also within the sovereignty of French justice.

Question 5

Discuss the case of the Republic of Nicaragua v. USA (1986)

Answer 5

ICJ held that the US violated international law by supporting the Contras (U.S. right-wing rebel groups) against the Sandinistas and by mining Nicaragua’s harbours.

ICJ found that the US:
- was in breach of its obligations under customary international law not to use force against another State
- not to intervene in its affairs
- not to violate its sovereignty
- not to interrupt peaceful maritime commerce

Question 6

Name a case related to the immunity of warships.

Answer 6

Name: Argentina v. Ghana (ARA Libertad Case) - 2013

Administering Institution: Permanent Court of Arbitration

Facts: Pursuant to Article 287 of the UNCLOS, the Argentinian Republic instituted arbitral proceedings concerning the detention adopted by the Republic of Ghana.

Decision: First instance where the International Tribunal for the Law of the Sea (ITLOS), considered the issue of the release of a warship which was detained in a foreign port contrary to the principles of sovereign immunity of warships.

Question 7

Name a case related to the immunity of ships.

Answer 7

Name: Kingdom of the Netherlands v Russian Federation (The ‘Arctic Sunrise’ Case) - 2013

Facts: A Netherlands flagged vessel (green peace vessel), the ‘Arctic Sunrise’, was in the exclusive economic zone of the Russian Federation. Russian authorities detained the vessel and the 30 people onboard, and the vessel was owed.

Decision: The Tribunal obliged for Russia to immediately release the vessel.

Question 8

Name a case related to the immunity of vessels.

Answer 8

Name: Ukraine vs. Russian Federation (2019)

• Case concerning the detention of three Ukrainian vessels
• The Tribunal considers it appropriate under the circumstances to prescribe provisional measures requiring the Russian Federation to release the three Ukrainian naval vessels and the detained Ukrainian servicemen to allow them to return to Ukraine for them to preserve the rights claimed by Ukraine. HOWEVER, the Tribunal did not find it necessary for the Russian Federation to cease criminal proceedings agains the Ukrainian servicemen.
• If the ship was used for non-commercial purposes and owned by a government, then indeed it was entitled to immunity, by Article 32.

Question 9

What are the important provisions in the Convention in relation to the territorial sea?

Answer 9

Article 2: Sovereignty of a coastal State is extended beyond its land territory and internal waters, to the territorial sea, of the air space above the territorial sea and of its bed and subsoil.

Article 3: 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, in accordance with the Convention.

Question 10

What is Article 17 of the Convention?

Answer 10

First Article in Section 3, which deals with innocent passage in the territorial sea.

Article 17 states: “Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.

Question 11

How does Article 19 of the Convention define ‘innocent passage’?

Answer 11

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. Such passage shall be in conformity with this Convention and with other rules of international law.

Question 12

What is the case of UK v. Albania

Answer 12

• This is known as the Corfu Channel Case, decided in 1949 by the International Court of Justice

Facts: The British Royal Navy swept for mines in the Corfu Channel, located in Albanian waters without Albanian consent. These mines exploded and caused damage to ships and loss of human life.

Decision: the ICJ held that in order to determine whether the passage by the Royal Navy warships were innocent or not, the manner of passage had to be determined.

It decided that the passage was innocent, and also held that Albania was responsible for the explosion in its waters, and for the damage it caused.

2 important observations from this decision:
1. A State cannot use its own territory to cause harm to another state
2. Although the rules of innocent passage may not be violated, every ship in territorial waters of a State must ensure that the territorial sovereignty of the State is not violated.

Question 13

What is Article 21 of the Convention?

Answer 13

This Article refers to the laws and regulations of the coastal State relating to innocent passage, and states that:

“the Coastal State may adopt laws and regulations, relating to innocent passage through the territorial sea, in respect” to a number of subjects, including the protection of cables and pipelines and the conservation of the living resources of the sea.

Question 14

What does Article 24 of the Convention entail?

Answer 14

• 2 main duties of the coastal State

1. The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea EXCEPT in accordance with this Convention.

In particular, it may not:
(a) impose requirements on foreign ships which have the practical effect of denying the right of innocent passage or
b) discriminate against the ships of any State

2. The coastal State shall give appropriate publicity to any danger to navigation within its territorial sea.

Question 15

Article 86 UNCLOS

Answer 15

1st Article for Part VII - the High Seas

• Name: Application of the provisions of this Part

The provisions of the high seas 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.

Question 16

Article 87 UNCLOS

Answer 16

• enlists the freedoms of the high seas, which are open to all states, both coastal and land-locked.

FREEDOMS:

1. Freedom of Navigation
2. Freedom of overflight
3. Freedom to lay submarine cables and pipelines, subject to part VI
4. Freedom to construct artificial islands and other installations, subject to part VI
5. freedom of fishing, subject to the conditions laid down in section 2 (Conservation and Management of living resources in the High Seas)
6. Freedom of scientific research (subject to Parts VI and XII)

the second section states that these freedoms shall be exercised by all States with DUE REGARD for the interests of other States in their exercise of the freedom of the high seas.

Question 17

Article 88 (UNCLOS)

Answer 17

The high seas shall be reserved for peaceful purposes

Question 18

Article 89 (UNCLOS)

Answer 18

No state may validly purport to subject any part of the high seas to its sovereignty.

Question 19

Article 90 (UNCLOS)

Answer 19

Every state, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.

Question 20

Article 91 (UNCLOS)

Answer 20

Every state shall
1. grant the nationality to ships
2. register ships in its territory
3. and grant the right for ships to fly its flag

THERE MUST BE A GENUINE LINK BETWEEN THE STATE AND THE SHIP.

Question 21

Case on the genuine link between the state and the ship.

Answer 21

Liechtenstein v. Guatemala (ICJ)

Liechtenstein claimed restitution and compensation from the Government of Guatemala on the ground that the latter had acted towards Mr Nottebohm, a citizen of Liechtenstein, in a manner contrary to Article 91 (seeing as there was no genuine link as he had a passport of convenience).

Question 22

Article 92 (UNCLOS)

Answer 22

• status of ships

1. Ships shall sail under the flag of one state only and shall be subject to its exclusive jurisdiction on the high seas. Furthermore, a ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change in registration.
2. A ship which sails under the flags of 2 or more states, using them according to convenience, may be considered to be without nationality (stateless)

Question 23

Mention a case for a stateless ship.

Answer 23

Naim Molvan v. AG for Palestine. (1948)

• Court confirmed that when a ship is stateless, any state may board and seize the ship on the high seas.

Question 24

Article 33 (UNCLOS)

Answer 24

Section 4 of Part II.

1. In a 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 contagious zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

The position under Maltese law is found in Article 4 of Chapter 226 of the Laws of Malta.

Question 25

What is Article 303?

Answer 25

This Article can be referenced side by side to Article 33.

It relates to archaeological and historical objects found at sea.

“1. States have the duty to protect objects of an archeological historical nature found at sea and shall cooperate for this purpose”.

2. In order to control traffic in such objects, the coastal state may apply Article 33, and presume that their removal from the seabed in the zone without its approval would result in an infringement within its territory or territorial sea.

The Convention thus transforms the contiguous zone into an archeological protection zone.

Question 26

What is Article 111 of the Convention?

Answer 26

The Right of Hot Pursuit:

empowers a coastal state to pursue onto the high seas a vessel, if that coastal State has good reason to believe that the ship has violated its laws while within its waters.

Question 27

Discuss the Exclusive Economic Zone according to the Convention.

Answer 27

Article 55: specific regime of the EEZ

• The EEZ is an area beyond and adjacent to the territorial sea.

Article 56: Discusses the rights, jurisdiction and duties of the coastal State in the EEZ.

a) sovereign rights for the purpose of: exploring, exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and subsoil, and with regard to other activities for economic exploitation such as the production of energy.

b) Jurisdiction: on the establishment and use of artificial islands, installations and structures, marine scientific research, and the protection and preservation of the marine environment.

In exercising these rights and duties relating to the EEZ, the coastal State shall have due regard to the rights and duties of other States and shall act in a compatible manner with this Convention.

Question 28

Which Article concerns the breadth of the EEZ?

Answer 28

Article 57, which states that:

EEZ shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

Question 29

How do the Laws of Malta define Malta’s internal waters?

Answer 29

Chapter 425: Fisheries Conservation and Management Act

Article 3: The Fishing waters of Malta comprise of:

a) the internal waters
b) the territorial waters, declared under Article 3(2) of the Territorial Waters and Contiguous Zone Act and
c) any other marine waters over which sovereign rights for the purpose of exploring and exploiting, conserving and managing the living resources.

Question 30

What is the definition of a ‘continental shelf’?

Answer 30

According to Article 76 of UNCLOS, a continental shelf of a coastal State comprises of the seabed and subsoil of the submarine areas that extend beyond its territorial sea, and is a natural prolongation of its land territory, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

Chapter 535 of the Laws of Malta, the ‘Continental Shelf Act’ defines a continental shelf as “the seabed and subsoil of the submarine areas that extend beyond the territorial waters of Malta to a limit established in accordance with international law.” Furthermore, it is said that it is necessary to determine the boundary between Malta and the other State (with a coast opposite to Malta) by a bilateral agreement, or by the median line.

Question 31

What rights are granted with respect to the continental shelf?

Answer 31

Article 77 - The coastal state exercises over the continental shelf SOVEREIGN RIGHTS for the purpose of EXPLORING it and EXPLOITING its natural resources. This right is exclusive to the relevant state. Natural resources includes living and non-living resources of the seabed and subsoil. A state cannot claim sovereignty of the continental shelf, but it can claim sovereign rights.

There is no need to declare the continental shelf, as it exists ipso facto and ab inito, since it is an extension of the landmass.

Similar national law: Article 3 of Chapter 535 of the Laws of Malta, the Continental Shelf Act.