UNIT 03:

LAW OF SEA
The fundamental principle governing the law of the sea is that ‘the land dominates the sea’ so that
the land territorial situation constitutes the starting point for the determination of the maritime
rights of a coastal State. The seas were at one time thought capable of subjection to national
sovereignties. But these claims stimulated a response by Grotius who elaborated the doctrine of the
open seas, whereby the oceans as res communis were to be accessible to all States but incapable of
appropriation by any State. The freedom of the high seas rapidly became a basic principle of
international law. But not all the seas were so characterised. It was permissible for a coastal State to
appropriate a maritime belt around its coastline as territorial waters, or territorial sea, and treat it as
an indivisible part of its domain. Thus, now, for legal purposes the sea has traditionally been divided
into three different zones, each of which is subject to different rules. Moving outwards from land,
these zones are

1. internal waters,
2. territorial sea
3. high seas.

In recent years the position has been complicated by the tendency of coastal States to claim limited
rights over areas of the high seas adjacent to their territorial sea (contiguous zones, coastal waters,
exclusive economic zones and the continental shelf). The rules governing the sea are drawn from
both custom and treaty. During the Nineteenth Century and the period before the World War II,
several unsuccessful attempts were made to codify the customary law of the sea. After the World
War II, several conferences were held for the objective of codifying the various aspects of the Law of
the Sea. The first conference was the First United Nations Conference on the Law of the Sea (UNCLOS
I), known as the 1958 Geneva Conference on the Law of the Sea, which led to the conclusion of four
conventions:

1. The Convention on the Territorial Sea and Contiguous Zone;

2. The Convention on the High Seas;
3. The Convention on the Continental Shelf; and
4. The Convention on Fishing and Conservation of the Living Resources of the High Seas.

An Optional Protocol on the Compulsory Settlement of Dispute was also signed. The 1958 Geneva
Conference on the Law of the Sea constitutes the first major codification of the Law of the Sea. Most
of the provisions of the first two conventions, and some of the provisions of the Convention on the
Continental Shelf, are a codification of customary law; while the others are a mixture of codification
and progressive development of International Law as understood by the International Law
Commission. Thus, although the conventions are binding only on States parties to them, many of
their provisions can be used as evidence of customary law against States not parties to them. All
these four conventions are still in force, but for a limited number of States; the United States of
America is among those States since it has not yet ratified the 1982 Convention on the Law of the
Sea. The 1958 Geneva Conference failed to reach agreement on some questions, particularly on the
width of the territorial sea and rights of coastal States in the areas of the high sea adjacent to their
territorial seas. To deal with such questions, the Second United Nations Conference on the Law of
the Sea (UNCLOS II), which is known as the 1960 Geneva Convention on the Law of the Sea, was
convened. But this Conference also failed to achieve its objectives. This led to the convene of the
Third United Nations Conference on the Law of the Sea, 1973-1982 (UNCLOS III). UNCLOS III led to
the conclusion of the United Nations Convention of the Law of the Sea on December, 1982, which
entered into force on November 16, 1994. The 1982 Convention on the Law of the Sea constitutes a
comprehensive codification and development of contemporary international law governing the Sea
in time of peace Some of the provisions of the 1982 Convention codify the existing customary
international law of the sea. This is particularly true of those provisions which repeat those of the
four 1958 Conventions which codified customary law. Almost all the provisions of the four 1958
Conventions are repeated, modified or replaced by the 1982 Convention. But many of the provisions
of the 1982 Convention depart from the existing customary law. These provisions are not applicable
to he States which are not parties to the 1982 Convention. All States are prima facie bound by the
customary rules, while only the parties to a particular convention will be bound by the new rules
contained therein. The 1982 Convention prevails over the four 1958 Conventions as among the
States parties to it. It deals with most of the issues related to the Sea.

BASE LINE

The baseline is the line from which the breadth of the territorial sea and other coastal State zones,
such as contiguous zone, exclusive economic zone or exclusive fishing zone, are measured. The
baseline forms the boundary between the internal waters on the landward side of the coastal State
and its territorial sea on its seaward side. Waters on the landward side of the baseline of the
territorial sea form part of the internal waters of the State, over which the State has an absolute
sovereignty. The coastal State may determine baselines in turn by any of the following two methods
to suit different conditions:

1. normal baseline method;

2. straight baselines method.

Normal base-line of territorial sea is determined using appropriate points along the low waterline
(the line on the shore reached by the sea at low tide) of the coast as marked on larger-scale charts
officially recognized by the coastal State. Normal baselines are called ‘normal’ because they follow
the natural coastal landscape. The method of straight baselines joining appropriate points is an
exception to the normal rules for the determination of baselines. This method must be applied
restrictively. It may be applied only if several conditions are met. Such conditions are primarily that
either the coastline is deeply indented and cut into, or that there is a fringe of islands along the coast
in its immediate vicinity (Qatar v. Bahrain).

INTERNAL WATERS

Internal waters consist of ports, harbours, rivers, lakes and canals (and also water on the landward
side of the baselines used for measuring the width of the territorial sea). They are classed as part of
the land territory of the coastal State. Art. 8(1) of the 1982 Convention defines internal waters as the
waters on the landward side of the baseline from which the width of the territorial sea is measured
and corresponds to art. 5 of the 1958 Convention. Naturally the sovereignty of coastal State extends
to internal waters. A coastal State is therefore entitled to prohibit entry into its ports by foreign ships,
except for ships in distress (for example, ships seeking refuge from a storm, or ships which are
severely damaged). The main difference between the internal waters and the territorial sea is that
other States cannot take the benefit of any right of innocent passage. There is an exception to this
rule where the straight baselines cover the territorial waters as internal waters. Although a coastal
State has the right to forbid foreign merchant ships to enter its ports, most States are keen to
support trade, and therefore welcome foreign ships to their ports. The important question is not
whether a ship has a right of entry to a port, but its legal status once it has got there. Here, as in
virtually every branch of the law of the sea, a distinction must be made between merchant ships on
the one hand, and warships and other foreign State ships in non-commercial service, on the other. In
general, a coastal State may exercise its jurisdiction over foreign ships within its internal waters to
enforce its laws, although the judicial authorities of the flag State (i.e., the State whose flag the
particular ship flies) may also act where crimes have occurred on board ship. A merchant ship in a
foreign port or in foreign internal waters is automatically subject to the local jurisdiction, subject to
an express agreement to the contrary.

However, purely disciplinary issues related to the ship’s crew, which do not concern the maintenance
of peace within the territory of the coastal State, may be regulated by the authorities of the flag
State. But, where the foreign ship is a warship, the authorisation of the captain or of the flag State is
necessary before the coastal State may exercise its jurisdiction over the ship and its crew. This is
because of the status of the warship as a direct arm of the sovereign of the flag State. Members of
the crew are immune from prosecution by the coastal State for crimes committed on board the ship
and for crimes committed on shore, if they were in uniform and on official business at the time of the
crime. However, the flag State may waive its immunity. Though Warships are immune from the
jurisdiction of the coastal State, they may be required by the coastal State to leave its internal waters
immediately. Further, a foreign warship is expected to observe the coastal State’s laws on navigation
and health regulations.

PORTS

A port is a place which is used for loading and unloading cargo, i.e., goods, and for import and export
of goods from one country to another. A harbour or a haven is the place where ships are anchored
and kept safe from bad weather, or for future use. Docks are the places where ships are built and
repaired. A port is part of internal waters, and therefore is as fully portion of State territory as the
land itself. But because of usage, ships of other States are subject to a special regime in ports. This
special regime varies according to the practice of the State to which the port belongs. The general
rule is that a merchant ship enters the port of a foreign State, it is subject to the jurisdiction of the
coastal State. The deviations from this rule depend on the practice followed by each State. There is
an important exception under the Customary International Law. A ship in distress has a right to seek
shelter in a foreign port, and on account of the circumstances of its entry it is considered immune
from jurisdiction of the coastal State. But while such a ship is in port, it should not commit any
deliberate breaches of laws of the coastal State. Foreign public ships are subject to special rules of
jurisdiction and their status in port is considered in connection with these rules. Where offences are
committed on board ships berthed in foreign ports, jurisdiction depends on the practice followed by
the territorial State of the port concerned. According to the British practice, foreign merchant ships
in British ports and British merchant ships in foreign ports are subject to the complete jurisdiction
and police regulations of the State of the port. But in criminal matters, usually British authorities will
not intervene and enforce their jurisdiction unless

1. their assistance is requested by a local representative of the flag State, such as a consul
2. those in control of the ship
3. unless the peace or good order of the port is likely to be affected.

According to the British practice, in each case the authorities of the territorial State should decide
whether to intervene or not.

TERRITORIAL SEA
The territorial sea (also known as territorial waters, or the maritime belt) is a belt of sea adjacent to
the coast of a State over which a coastal State exercises its sovereignty. The 1982 Convention on the
Law of the Sea declares that the sovereignty of a coastal State extends, beyond its land territory and
internal waters to an adjacent belt of sea, described as the territorial sea. The Convention provides
that this sovereignty extends also to the air space over the territorial sea as well as to its bed and
subsoil. However, the exercise by a coastal State of such sovereignty over its territorial sea is subject
to the rules and limitations provided for in the said Convention and in the International Law.

LIMITS OF THE TERRITORIAL SEA

The Convention adopts the twelve-mile limit as a breadth of the territorial sea. It provides 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 baselines. Where the coasts of two States are opposite or adjacent to each
other, neither of the two States is entitled to extend its territorial sea beyond the median line every
point of which is equidistant from the nearest points on the baselines of the two States. This rule,
however, does not apply where

1. there is agreement between the two States to the contrary,

2. it is necessary by reason of historic title or other special circumstances to delimit the
territorial seas of the two States in a different way.

DUTIES OF THE COASTAL STATE

The Coastal State,

1. in the application of the Convention or of any laws or regulations, must not impose
requirements aiming at denying or impairing the right of innocent passage, or
2. in the application of the Convention or of any laws or regulations, must not discriminate
against the ships of any State.
3. must give appropriate publicity to any danger to navigation, of which it has knowledge.
4. must not levy any charges upon foreign ships by reason only of their passage through its
territorial sea Charges may be levied as payment only for specific services rendered to the
ship.
5. must not exercise its criminal jurisdiction on foreign ship, except in the cases specified by the
Convention.
6. must not exercise civil jurisdiction in relation to a foreign ship or a person on its board,
except in the cases specified by the Convention. Warships and other government ships
operated for non-commercial purposes are immune from any jurisdiction.

However, the coastal State may order such ships to leave its territorial sea immediately if they fail to
comply with the laws and regulations of the coastal State. Against these duties, the coastal State
entitled to certain rights in respect of the right of innocent passage granted to foreign ship

RIGHTS OF THE COASTAL STATE OVER THE TERRITORIAL SEA

As the 1982 Convention provides, the sovereignty of the coastal State extends to its territorial sea as
well as to the air-space over its territorial sea, its bed and subsoil. In this regard the coastal State
enjoys the following:

1. The exclusive right to fish, and to exploit the resources of the seabed and subsoil of its
territorial sea.
 2. The exclusive right in the air-space over its territorial sea to the exclusion of other States.
Foreign aircrafts, unlike ships, have no right of innocent flight in the air-space over the
territorial sea of a State.
3. The coastal State’s ships have the exclusive right to transport goods and passengers from one
part of the coastal State to another (cabotage).
4. The right to enact laws and regulations, particularly, in respect of navigation, health,
customs, immigration and preservation of the environment. Such laws must be in conformity
with the 1982 Convention and other rules of International Law.
5. The right to take the necessary steps in its territorial Sea to prevent passage which is not
innocent. If the coastal State is neutral in a time of war, belligerent States may not engage in
combat, or capture merchant ships, in the coastal State’s territorial sea.
6. The exercise of criminal jurisdiction on board of a foreign ship (arresting any person or
conducting any investigation in connection with any crime committed on board of the foreign
ship) in the following cases:
(a) if the consequences of the crime extend to it;
(b) if the crime is of a kind to disturb the peace of the State or the good order of its
territorial sea;
(c) if the assistance of the local authorities has been requested;
(d) if the measures are necessary for the suppression of illicit traffic in narcotic drugs;
(e) or after leaving its internal water.
7. The exercise of civil jurisdiction in relation to a foreign ship
(a) in respect of liabilities incurred by the ship itself
(b) in the course of its voyage through its waters, or
(c) for the purpose of its voyage through its waters, or
(d) in respect of any civil proceedings against a foreign ship after leaving its internal
waters.

RIGHT OF INNOCENT PASSAGE IN THE TERRITORIAL SEA

Art. 2(1) of the 1982 Convention provides that the coastal State exercises sovereignty over its
territorial sea. But the coastal State’s sovereignty is subject to a very important limitation. Foreign
ships of all States have a right of innocent passage through the territorial sea. Passage means
navigation through the territorial sea for the purpose of traversing that sea without entering internal
waters. Passage must be continuous and expeditious. However, it may include stopping and
anchoring in so far as they are incidental to ordinary navigation or are rendered necessary by force
majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger
or distress. Passage must take place in conformity with the 1982 Convention and with other rules of
International Law. Passage must be innocent. Passage is innocent so long as it is not prejudicial to the
peace, good order, or security of the coastal State. Fishing vessels must comply with laws enacted by
the coastal State to prevent them from fishing, and submarines must navigate on the surface and
show their flag. The right of innocent passage also exists in internal waters where the establishment
of a baseline in accordance with the straight baselines’ method provided by the 1982 Convention has
the effect of enclosing as internal water areas which had not previously been considered as such.

CONTIGUOUS ZONE

Contiguous zone is a maritime zone adjacent to the territorial sea of the coastal State over which that
State, as provided by the 1982 Convention, may exercise the control necessary to prevent
infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or
territorial sea and to punish infringement of these laws and regulations committed within its
territory and territorial sea. According to the 1982 Convention, the contiguous zone may not extend
beyond 24 nautical miles from the baseline from which the breadth of the territorial sea is
measured. It follows from the provision of the 1982 Convention related to the contiguous zone that
the rights of the coastal State over the contiguous zone do not amount to sovereignty. The coastal
State may only exercise jurisdictional powers for the reasons specified by the Convention. Still other
States have rights over these zones similar to those exercisable over the high seas except as they are
qualified by the existence of jurisdictional zones. Moreover, these zones are not automatically
belonging to coastal States as in the case of territorial sea. They must be specifically claimed by the
State.

THE EXCLUSIVE ECONOMIC ZONE

The 1982 Convention provides that the exclusive economic zone is an area beyond and adjacent to
the territorial sea

The exclusive economic zone should not extend beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured.

In this zone, the Convention establishes sovereign rights and jurisdiction for the coastal States, as
well as, rights and freedoms for other States.

Under the Convention, the coastal State has, in the exclusive economic zone, sovereign rights for the
purpose of exploring and exploiting, conserving and managing the natural resources, whether living
or non-living, of the waters superjacent to the seabed and of the sea-bed and its subsoil,

and with regard to other activities for the economic exploitation and exploration of the zone, such as
the production of energy from the water, current and winds.

The coastal State also has the jurisdiction regarding:

1. the establishment and use of artificial islands, installations and structures;

2. marine scientific research; and
3. the protection and preservation of the marine environment.

the coastal State should have due regard to the rights and duties of other States and should act in a
manner compatible with the provisions of the Convention.

All States, whether coastal or land-locked States, enjoy, subject to the relevant provisions of the
Convention, the high seas freedom of navigation, over-flight and of laying of submarine cables and
pipelines in the exclusive economic zone.

States should have due regard to the rights and duties of the coastal State and should comply with
the laws and regulations adopted by the coastal State in accordance with the provisions of the
Convention and other compatible rules of International Law.

The Conventions provides that in cases of conflict over rights or jurisdiction of the coastal State or of
other States within the exclusive economic zone, the conflict should be resolved based on equity and
in the light of all the relevant circumstances.

As regarding the delimitation of the exclusive economic zone between States with opposite or
adjacent coasts, the Convention provides that it should be affected by agreement on the basis of
International Law. If no agreement can be reached within a reasonable period, the States concerned
should resort to the procedures of settlement of disputes provided for in the Convention.
THE CONTINENTAL SHELF

The 1982 Convention defines the continental shelf of the coastal State as:

“The sea-bed and subsoil of the submarine area that extend beyond its territorial sea throughout the
natural prolongation of its land territory to the outer edge of the continental margin, or to a distance
of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured
where the outer edge of the continental margin does not extend to that distance”.

 Where the continental margin extends beyond 200 miles, the Convention provides that the
continental shelf should not extend more than 350 nautical miles from the baselines or 100
nautical miles from the 2500-meter depth.
 The continental margin, comprises the submerged prolongation of land mass of the coastal
State, and consists of the sea-bed and subsoil of the shelf, the slope, and the rise;
 Does not include the deep ocean floor with its oceanic ridges or the subsoil. As regarding the
delimitation of the continental shelf between States with opposite or adjacent coasts, the
Convention provides that it should be affected by agreement based on International Law; if
no agreement can be reached within a reasonable period, the States concerned should
resort to the procedures of settlement of disputes provided for in the Convention.
 In the continental shelf, the Convention establishes sovereign rights for the coastal States
and rights and freedoms for other States, as well as, imposes duties on them.
 The coastal State may exercise over the continental shelf sovereign rights for the purpose of
exploring it and exploiting its natural resources.
 Such rights are exclusive in the sense that if the coastal State does not explore the
continental shelf or exploit its natural resources, no one may undertake these activities
without the express consent of the coastal State.
 The coastal State has the exclusive right to construct and to authorize and regulate the
construction, operating and use of artificial islands, installations, and structures on the
continental shelf, as well as, to authorize and regulate drilling on the continental shelf for all
purposes.
 It has the right to establish reasonable safety zones around its installations to a limit of 500
meters, which must be respected by ships of all States.
 The coastal State not to infringe or result in any unjustifiable interference with navigation
and other rights and freedoms of other States as provided for in the Convention (such as the
laying or maintenance of cables or pipelines).
 The coastal State to pay to the International Seabed Authority annual payments or
contributions in kind in respect of the exploitation of the non-living resources of the
continental shelf beyond 200 miles
 Under the Convention, all States are entitled to lay cables and pipelines on the continental
shelf, in accordance with the relevant provisions of the Convention.

DEFENCE FOR STATE RESPONSIBILITY:

1. Consent
2. Self defense
3. Counter measure
4. Force majeure (occurrence of irresistible force of an unseen event)
5. Distress
 6. Necessity

KINDS OF STATE RESPONSIBILITY:

1. Direct
2. Indirect

STATE RESPONSIBILITY FOR INJURY TO ALIENS:

1. Acts of private individuals

2. Acts of mob violence
3. Acts of insurgents (rebels)

STATE RESPONSIBILITY OF GOVT ORGANS

-Denial of justice

STATE RESPONSIBILITY OF CONTRACT WITH FOREIGNERS

-the calvo clause (property of aliens)

STATE RESPONSIBILITY FOR BREACH OF TREATY

-RESPONSIBILITY FOR EXAPPROPRIATION OF ALIEN PROPERTIES

CONSEQUENCES OF STATE RESPONSIBILITY:

1. Restitution
2. Indemnity
3. Satisfaction

EXTENT OF TERRITORAL SOVEREIGNITY OR JURISDICTION:

1. Land situated within the boundaries of state recognised by international law

2. Maritime coastal belt or territorial sea according to the law of sea
3. State bearing flag of state wishes to exercise its jurisdiction in
4. Ports
5. Territory in air or outer space
- Absolute sovereignity over whole space of atmosphere above territory with unlimited
height
- Can prohibit aircraft flying over that space
- Air space is absolutely free
- Only particular amount of height and space remaining is free and open to all states
- Subjacent state extends to unlimitedness air space but other states have the right to
innocent passage for their civil aircrafts
- No aircraft to be registered in a country unless it’s a national of that country
- Aircraft cant be registered in more than one country
- Fly across foreign territory w/o landing
- Land for non traffic purposes

EXEMPTIONS FROM TERRITORIAL JURISDICTION

1. Foreign states and heads of foreign states

2. Public property of foreign states
3. Diplomatic representatives of foreign states
4. Public ships of foreign states
5. Armed forces of foreign states
6. International institutions
7. Extradition treaties