The Law of the Sea, p.179ff

1. The Law of the Sea, p.179ff • follow along with 1982 UNCLOS (United Nations Convention on the Law of the Sea) (entered into force 1994). Note: The Deep Sea Bed regime (arts. 133-199) has been modified by the 1994 Agreement Relating to the Implementation of Part XI. Useful site: www.itlos.org/ home of The International Tribunal for the Law of the Sea. • The US Senate has voted the treaty out of committee but has still not voted on its advice and consent to ratification although all departments of government have supported the treaty. Nonetheless, the US abides by much of the treaty.

2. Law of the Sea The Law Prior to the United Nations Convention on the Law of the Sea (UNCLOS) • Prior to UNCLOS, the sea was divided into: • 1) Internal waters: Lakes, rivers, bays (no agreement on definition of a bay): internal waters were entirely subject to the state’s jurisdiction.

3. Law of the Sea The Law Prior to the United Nations Convention on the Law of the Sea (UNCLOS) continued • 2) Territorial waters: A strip of water lying directly off the coast of a state. In this water, the coastal state could declare an exclusive fishing (or other economic interests) zone. (No agreement on the breadth of the territorial sea. Western states argued for 3 nautical miles. All miles are nautical miles in the law of the sea. A nautical mile is 6076.1155 feet as opposed to 5280 feet in a regular mile. Scandinavian states claimed four nautical miles and some Latin American states claimed 200 nautical miles). Most states agreed that foreign ships had a right of innocent passage through the territorial sea. Some states argued that military vessels had to receive permission to enter the territorial sea and had no right of innocent passage.

4. Law of the Sea The Law Prior to the United Nations Convention on the Law of the Sea (UNCLOS) continued • 3) The high seas: All the sea beyond the territorial sea. Ships on the high seas were generally only subject to the jurisdiction of the flag state but see, The Lotus Case (France v. Turkey), 1927 P.C.I.J. (ser. A) No.10, cf. UNCLOS art. 97. The high seas were open to all states, “Mare Liberum,” and could not be claimed by them in the way that territory could be.

5. Regimes of the Sea after UNCLOS • 1) Internal waters, including bays that meet the UNCLOS • definition. • 2) Territorial Sea. • 3) The Contiguous Zone. • 4) The Exclusive Economic Zone. • 5) The Continental Shelf. • 6) The High Seas. • 7) The Deep Sea Bed (under UNCLOS as altered by the • 1994 Agreement).

6. Internal Waters • Name some bodies of water that are classified as internal waters. (UNCLOS art. 8). • What power does the State surrounding the internal waters have over those waters? (UNCLOS art. 2). • Some bays are also classified as internal waters. Which ones? (UNCLOS art. 10). Where is the baseline for measuring a bay? (UNCLOS art. 10). • What is an historic bay? (UNCLOS art. 10(6)).

7. The Territorial Sea • What is the territorial sea? (UNCLOS art. 2). • How broad is the territorial sea? (UNCLOS art. 3). • From which point is the base line for the territorial sea measured? (UNCLOS art. 5, 6, 7,9). • What rights does the coastal state have over the airspace over the territorial sea? (UNCLOS art. 2(2)).

8. Rights for Foreign Ships in the Territorial Sea • What rights do foreign ships have in the territorial sea of another state? (UNCLOS arts. 17, 18, 19, 20, 21, 22, 23, 24-32). • Do aircraft also have these rights over the territorial sea? • What is innocent passage? (UNCLOS art. 19) • What can the coastal state do if it believes that a foreign state is not engaged in innocent passage through its territorial sea?(UNCLOS arts. 25(1), 30, 31).

9. U.S. v. Conroy/U.S. v. Walker U.S. Ct of Appeals 1979 • What happened in this case? • On what basis did the defendants claim that the seizure in Haitian territorial waters was illegal? • Do you agree with the court`s interpretation of 14 USC section 89 (bottom of pps. 188-189) and the court`s view of the scope of the US Coast Guard`s powers? • On what basis did the court rule that the Coast Guard had the right to enter Haitian territorial waters even without specific permission? • Does the right of innocent passage include the right to arrest vessels in the territorial sea of other states? If such an arrest is a violation of the coastal state’s rights, which entity (or entities) may complain about the violation?

10. Archipelagos • How are the baselines drawn around mid-ocean archipelagos? • Do foreign ships have a right of passage through the archipelagic waters inside the baselines? Is this the same as the right of innocent passage through territorial seas? • Do aircraft have a right to fly over archipelagic waters without first securing permission?

11. International Straits • Why did the UNCLOS expansion of the breadth of the territorial sea to a maximum of 12 nautical miles create a problem for passage of ships and aircraft through straits?

12. Corfu Channel Case (U.K. v. Albania) 1949 I.C.J. 4 • Customary Definition of an International Strait: Map of Corfu (Kerkyra): http://apartments-alexandros.travel-greece.org/images/corfu_map.png Britain claimed that Albania had fired at two of her military cruisers while they were passing near the Albanian coast in May 1946. The Albanians claimed that the area was territorial sea and that foreign military ships had no right to pass without prior permission. The UK argued that the water was an international strait and, if so, all ships, whether military or mercantile, had the right of innocent passage. • How did Albania argue that the Corfu Channel should not be classified as an international strait? How did the Court define an international strait? What rights do foreign ships have in international straits? What do you think the Court meant by “innocent passage.”?

13. UNCLOS Definition of a Strait • Study the following articles of UNCLOS: arts. 36-44 (transit passage and definition of certain types of straits); 19 (innocent passage); 45(1)b() and 45(2) (innocent passage through certain straits); 38 (island straits). • How is the right of transit passage different from the right of innocent passage?

14. Question p. 195 • Map of the Straits of Tiran: www.worldatlas.com/aatlas/infopage/gulfofaqaba.htm Study the map of the Straits of Tiran p. 196. The Straits of Tiran run from the Red Sea into the Gulf of Aqaba. The maximum width of the Gulf is 17 nautical miles. The only navigable channel through the Straits is 3 miles wide. Assume that all States bordering the Gulf claim the maximum territorial sea possible under UNCLOS. • 1)What right does a foreign ship have to pass through the Straits of Tiran? • 2) What right does foreign aircraft have to fly over the Straits of Tiran? • 3) What right does the coastal state have to suspend rights of passage through the Straits and when?

15. The Contiguous Zone • This zone started out as a type of a security zone but there was no agreement on its breadth or the limitations on the power of the coastal state in the zone. Now read art. 33. Just what powers does the coastal state have in the contiguous zone?

16. The Exclusive Economic Zone (EEZ) • Read UNCLOS art. 55. • What rights does the coastal state have in the EEZ? See arts. 56, 61, 62, 69, 70 73 & 74. • What rights do foreign states have in the EEZ? See arts. 58

17. The Continental Shelf (CS) • Read art. 76, 82, 7, 77, 81. • What are the rights of coastal states in the CS? • What are the rights of foreign states in waters above the CS? See art. 78, 79. • For delimitation of the CS when claimed by more than one state: see art. 83, 287, 284, 76 and Annex II.