User:Muhammad Azam Advocate

Muhammad Azam Advocate 15:37, 23 March 2007 (UTC)'Law of the Seas'

General Introduction and Historical perspective and Developments.

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Principle of maritime sovereignty

Initially, navigation on the high seas was open to every body as were also fisheries but in the fifteenth and sixteenth centuries was the period of great maritime discovery by European Navigators. Claims were laid by the powerful maritime states to the exercise of sovereignty, indistinguishable from owner-ship over specific potions of the open sea For instance, Portugal claimed maritime sovereignty over the whole of the Indian Ocean, Spain arrogated rights to herself over the Pacific and Gulf of Mexico and even Great Britain laid claim to the Narrow Seas and the North Sea.

Principle of the freedom of the seas

Grotius was the first to these extensive claims to sovereignty. His Objections were based Predominantly upon two grounds:

No Ocean can be the Property of a Nation because it is impossible for any nation effectively to take it into possession by occupation. Nature does not give a right to anybody to appropriate things that may be used by every body and are exhaustible- in other words, the open sea is a res gentum or res extra commercium.

Maritime belt

Rights which came to be exercised by maritime states over a strip of waters immediately adjoining to their coastlines, being such as was considered necessary to the safety of the state concerned, or which that state had power to dominate. This strip was called as maritime belt. For the last 25 years has been universally known as the “ territorial sea” since its designation as such in the Geneva Convention of 1958 on the Territorial Sea and Contiguous Zone.

In the Nineteenth century, the three-mile limit received widespread recognition by the jurists as well as by the Courts and obtained adoption in the practice of important maritime states. This continued too in the twentieth century, with two great maritime powers, the United States and Great Britain, firm protagonists of the three mile-limit.

Question of Jurisdiction

Another more controversial right of the coastal states was that of the exercise of jurisdiction over foreign vessels out side the limits of the maritime belt were there was a grave suspicion that such vessels were a source of imminent danger to the sovereignty or the security of the adjacent coastal state. This jurisdiction was permitted slowly on the basis of, and as a measure of self-protection. The scope of this jurisdiction was at all times a debatable matter.

States were also permitted to exercise jurisdiction on the high seas by reason of certain international conventions, whereby the states parties concealed to one another rights, in time of peace of, visiting and searching foreign vessels at sea. Two such instruments concluded during the nineteenth century, namely the convention for the protection of sub-marine Telegraph cables of 1884, and the General Act of Brussels of 1890 for the repression of the African Slave Trade.

In 1927 in the Lotus Case, “the permanent court of International Justice held, by a majority, that in collision cases on the high seas there was no rule of International Law attributing exclusive penal jurisdiction to the flag state of ship involved in the collision as regards an offence committed on that ship, and that jurisdiction could be as well exercised by the flag state of the ship which the offence had produced its effects in the course of the collision. The decision in the Lotus case was not received with enthusiasm by international lawyers, and subsequently was in effect overruled, not by any decision of an international tribunal, but by the consensus generally of states acting officially and of international jurists.

Developments after Second World War.

Two important developments following the end of the Second World War. First, the evolution and the general acceptance of the doctrine of the Continental Shelf and Second the decision of the International Court of Justice in the Anglo-Norwegian Fisheries Case(1951) ICJ 116-206. upholding the method in certain special cases of drawing baselines at some distance from the coastline of the littoral state concerned, from which baselines the breadth of the maritime belt was to be measured, instead of the low-water mark constituting the linear edge of the maritime belt. However, the doctrine of the continental shelf was recognized by general consensus in the Geneva Convention of 1958 on the Continental shelf. The second major development that of the delimitation of the maritime belt by reference to the baselines method was as mentioned above, the consequence of the decision in 1951 of the International Court of Justice in the Anglo-Norwegian Fisheries case there the court held that a Norwegian decree of July 1935  delimiting an exclusive fishery zone along a maritime belt of a breadth of four miles extending from straight baselines drawn through 48 selected points on the mainland or islands or rocks at considerable distance from the coast, was not contrary to international law.

Regime of the High Seas and maritime

Beginning with the first session in 1949, the regime of the high seas and the regime of the maritime belt had engaged the attention of the United Nations International Law Commission as being among topics in respect to which codification was considered by it as being necessary and feasible. The examination of the two subjects was spread over eight sessions, 1949-1956. In the course of the fourth session in 1952 the Commission expressed a preference for the term “territorial sea” to denote the maritime belt, and this has since come into universal currency of use. Thereby displacing and rendering obsolete the expressions ‘maritime belt’ and ‘territorial waters’ At its eighth session in 1956 the commission drew up a final set of draft articles on the territorial sea, incorporating changes based on communications from governments and adopted a final report on the Law of the high seas containing a set of 73 draft articles designed to constitute a single co-coordinated and systematic body of rules.

First United Nations Conference on LOS

The First United Nations Conference on the Law of the Sea met in Geneva from 24 February 1958 to 27 April 195, and its labors resulted in the adoption of four Conventions namely, the Convention on the Territorial sea and Contiguous Zone, the Convention on the High Seas, the Convention on Fishing and Conservation of the Living Resources of the High Seas and the Convention the Convention on the Continental Shelf. These Conventions came into force on, respectively, 10 September 1965, 30 September 1962, 20 March 1966 and 10 June 1964. Two questions were left unsettled by it, namely, the breadth of the territorial Sea and Fishery Limits. After the conclusion of the 1958 conference, the General Assembly by resolution adopted on 10 December 1958,  as the Secretary-General of the United Nations to convene a Second United Nations Conference on the Law of the Sea to consider further these two unsettled questions.

Second United Nations Conference on LOS

The Second United Nations Conference which was held in Geneva from 16 March1960 to 26 April 1960. Over 80 States were represented at this Second United Nations Conference with inconclusive results as to the two questions, although the Conference did approve a resolution expressing the need for technical assistance to Fishing.

Beyond the fact that the four conventions of 1958 and the convention of 1965 provided collectively a regime which governed the use of, and rights as to the open sea and the territorial sea, these instruments also in effect paved a way for, andd provided basic foundation for the comprehensive United Nations Convention on the Law of the Sea signed at Montego Bay on 10 December 1982.

International Court of Justice in 1969 in its landmark decision in the North Sea Continental Shelf Cases. In that connection, article 6 of the Geneva Convention of 1958 on the Continental Shelf had made provision for the manner of division of a shelf common to states with opposite coastlines or common to states adjacent to each other. The Court held that in respect to the division of the common shelf of the German Federal Republic, the Netherlands and Denmark, was not binding upon the German Federal Republic, an non-party to the Convention.

Developments since 1960 leading to the United Nations Convention of 1982 on LOS.

The first and Second United Nations Conferences on the LOS left unsettled numerous matters including the precise depth of the territorial Sea, the question of innocent passage for warships at all times through straits constituting an international maritime highway, the right of passage through and over flight in relation to the waters of the archipelagos, the problem of protection and conservation species for purely scientific or tourist-amenity reasons. On the whole to matters of a more general nature than the technical legal questions left unsettled in 1958 and 1960. on 29 November 1969, two conventions were adopted at Brussels to deal with Oil Pollution casualties namely the International Convention relating to Intervention on the high Seas in cases of Oil Pollution Casualties and the International Convention on Civil Liability for Oil Pollution Damage. The Intervention Convention was supplemented subsequently by a Protocol relating to Intervention on the High Seas in cases of Marine Pollution by substances other that Oil.

In 1967, before that adoption in 1969-1971 of three mentioned instruments, the first step on the road to the conclusion of the 1982 was taken when Mr. Arvid Pardo of Malta pressed for United Nations action to be taken to have deep seabed resources beyond the continental shelf limits recognized as the common heritage of mankind, and to be developed in the interests of all States, with special regard to the needs of disadvantaged developing countries. The radical step taken by President Richard Nixon on 23 May 1970, when he issued a statement of a new United States Policy on the Oceans which was compatible with the approach favored by the United Nations General Assembly, and the principles of which were embodied in a draft convention presented on 3 August 1970 by the United States Government to the Seabed Committee as a working paper for discussion purpose.

Law of the Sea ( United Nations Convention of 10 December 1982 at Montego Bay.

The Final signature on the law of the Sea 1973-1982 (UNCLOS) on 10 December 1982 at Montego Bay, Jamaica by the great Majority of the states ( no less than 118) represented at the Third United Nations Conference on the law of the Sea.

The Convention consists of no less than 320 Articles spread over 17 parts together with nine Annexes. Apart from the Convention and its Annexes, there would also have to be considered the four important resolutions adopted by the Conference, and the statement of Understanding Concerning a Specific method to be used in Establishing the Outer edge of the Continental Margin. Article 2 proclaims that the sovereignty of a coastal state extends beyond its land territory and internal waters. Straits baselines are permissible according to the conditions laid down in Article 7. Bay is defined in Article 10. Articles 11 to 13 deals with the harbor works, roadsteads and low-tide elevations. Article 15 deals with the delimitation of the territorial sea between states with opposite or adjacent coasts. The rules concerning innocent passage in the territorial sea are contained in articles 17-32. Article 21 deals with the subject-matters of the laws and regulations which a coastal state may adopt in respect to innocent passage, Article 25 empowers coastal states to take steps to prevent a passage which is not innocent. Criminal and Civil jurisdiction on board foreign ships dealt with in article 27 and 28. The Concept of “ transit passage” is introduced in articles 37-44 and is applicable to straits used for international navigation between one part of the high seas and another part of the high seas or an EEZ. Articles 39-40 impose certain duties on, and set out certain prohibitions to be complied with by ships and aircraft in transit passage. Articles 41 and 42 deals with for the design by bordering states of sea lanes and traffic separation schemes. The method of straight baselines as the solution for the problem of archipelagic waters in Articles 47 and 49. In subsequent articles 51-54 provision is made for respect to be given by the archipelagic state to existing agreements. The Convention deals with EEZ consisting of no less than 21 articles( 55 to 75). Part 6 articles 76 to 85 deals not only with the Continental Shelf but with the Continental Margin. Article 82 on payments and contributions by the coastal state with respect to the exploitation of the shelf beyond 200 nautical miles. Freedom of the Seas defined in Article 87. Article 85 preserves the coastal state’s right to tunnel the shelf subsoil, irrespective of the depth of water above the subsoil. For peaceful purposes Article 88. No part thereof may be the subject of a claim of Sovereignty in Article 89. Every state has the right to sail thereon ships flying its flags in Article 90. Every state is to fix the conditions for the grant of its nationality to ships. Under Article 98 states are under a duty to require masters of ships flying their flags to render assistance in case of danger, distress and collisions. Every state is under article 99 to take effective measures to prevent and punish the transport of slaves in ships of its flag, and to prevent the use unlawful use of its flags for that purpose. The expression “ Pirate ship or aircraft” in article 101 and in 103 as connoting a ship or aircraft intended by the persons in dominant control to be used for the purpose of committing the piratical acts as specified in article 101. Every state may seize a pirate ship or aircraft, or one taken by piracy and under the control of pirates, and arrest the persons concerned for trial by the courts of the seizing state in Article 104. The right of Hot pursuit is covered in a long and comprehensive Article 111. Articles 112-115 deals with the free right of all states to lay submarine cables and pipelines on the bed of the high seas beyond the continental shelf, and with the duties of states to adopt laws and regulations in regard to the breaking of, or injury to such cables and pipelines. Article 121 deals with the regime of Islands. Articles 124-132 for the right of access of land-locked states to and from the sea and for the related privileges of passage through states lying between them and the coast. Articles 192-196 bears the title “ General Provisions” Articles 213 to 222 duties imposed on states. Articles 223 to 233 are “Safeguards”. Article 287 deals with the Settlement of disputes likewise contains a number of ambitious provisions. Article 035 which renders the convention open to signature by a large variety of entities not merely states.

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