Topic H: Navigational Rights and Freedoms

1. Topic H: Navigational Rights and Freedoms Professor Donald R. Rothwell 27 February 2009

2. Basic Principles • Coastal State Maritime Jurisdiction • Nationality/Territoriality • Treaty • Navigational Rights and Freedoms • Conduct of Passage • Coastal State Regulation • Municipal Law Control • Is there an offence? • Is there a power of arrest? • Who can exercise that power?

3. Introduction • Basic concepts of freedom of the seas • Closed Seas and Open Seas • 20th Century acceptance of freedom of the seas • Impact of extended maritime zones • Geneva Convention on the Territorial Sea • Innocent Passage in the Territorial Sea • Geneva Convention and International Straits • Corfu Channel Case • Classification of International Straits

4. Territorial Sea • Right of Innocent Passage Art 17 • Meaning of Passage Art 18 • Traversing the sea without entering internal waters • Proceeding to or from internal waters • Passage shall be • Continuous and expeditious • Stopping and anchoring only so far as in incidental to passage or necessary as a result of force majeure/distress

5. Territorial Sea • Meaning of innocent passage Art 19 • Innocent so long as “not prejudicial to the peace, good order or security of the coastal State” • Takes place in conformity with other international law rules • Passage is prejudicial if (A 19(2)) • Any threat or use of force • Exercise of practice with weapons • Act of propaganda • Wilful or serious act of pollution • Fishing activities • Marine scientific research • Any other activity not having a direct bearing on passage

6. Issues arising • Who makes the determination as to whether passage is or is not prejudicial to the coastal State? • What evidentiary standard is required to make a judgement that passage is not innocent? • Objective • Subjective • What are the consequences if a determination is made that passage is not innocent? • Can the right of passage be suspended • Can exercise of the right be barred? • Can force be used to prevent passage?

7. Territorial Sea • Duties of the coastal state Art 24 • Not to hamper innocent passage • Not to deny the right of innocent passage • Not to discriminate in form or fact against ships • To give appropriate publicity to dangers to navigation

8. Territorial Sea • Rights of the Coastal State • To prevent passage which is not innocent Art 25 • Temporarily suspend innocent passage • To apply certain laws and regulations Art 21 • To enforce criminal law: Art 27 • Crime extends to the state • Crime disturbs peace & good order • Assistance has been requested • Measures to suppress drug trafficking

9. Case of the Lusitania Expresso • Portuguese flagged car ferry: Darwin- Dili (1992) • Indonesia announces en route the TS is closed • LE is shadowed by Indonesian Navy upon entry into the EEZ • Upon nearing the TS the LE is asked to turn around • LE stops, drops floral wreaths and returns to Darwin

10. International Straits • Various regimes apply • Transit Passage through straits • Long-standing convention regimes • Straits where there exists an alternate high seas route • Straits within internal waters/territorial sea which are not used for international navigation

11. International Straits • Principal scope of application of Part III (Art 37) • Straits • Used for international navigation • Between one part of the high seas/EEZ and another part of the high seas/EEZ Which straits meet this criteria? • Legal/Geographic – Juridical Strait? Australian International Straits Bass Strait Torres Strait Investigator Strait Bathurst Is/Melville Is/Darwin Harbour

12. International Straits • Transit Passage Art 38/39 • “freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas/EEZ and another part of the high seas/EEZ” • Obligations include: • To proceed without delay • Refrain from any threat or use of force • Refrain any activities which are not incidental to normal modes of transit

13. International Straits • Strait states shall not hamper transit passage: A 44 • Capacity to apply criminal laws? • Limited scope: A 42 • Does Art. 27 apply? • If not, does the vessel enjoy de facto immunity? • What is ‘passage through the territorial sea’?

14. Torres Strait • Recognised international strait • Voluntary pilotage regime adopted 1990s • Australia concerned over potential for marine environmental disaster • PSSA designation sought in the IMO • IMO approved designation • From 2006 vessels with a draft of +8m are required to carry a pilot • GBR compulsory pilotage in effect as from 1991

15. Compulsory Pilotage • Great Barrier Reef • Torres Strait

16. Issue arising • Is the Torres Strait a potential precedent for other waters? • Canadian Arctic waters • Indonesian archipelago? • What is a vessel refuses to take on a pilot? • Is this a hampering of the right of passage • Can Australia’s position be challenged before the ICJ/ITLOS

17. A Bass Strait Bridge? See Passage through The Great Belt (Denmark v Finland) [1991] ICJ

18. High Seas • Navigation as a High Seas Freedom (Art 87 LOSC) • A traditional right founded in bot custom and convention • Right to be exercised free from interference • What is the extent of the freedom? • Exceptions under LOSC to High Seas Freedom of Navigation • Ships engaged in Piracy • Ships engaged in the slave trade • Ships engaged in unauthorized broadcasting • Ad hoc exceptions arising from UNSC Resolutions

19. Exclusive Economic Zone • Rights of navigation and overflight apply within the 188nm EEZ: Art 58 LOSC • Other provisions dealing with High Seas apply providing they are not incompatible with EEZ regime • EEZ Freedoms of Navigation • Apply within the EEZ to the extent they do not impact upon the particular EEZ interests of the coastal State • Resource Management/Marine Environment/Marine Scientific Research

20. Concluding Remarks • Fundamental to the Law of the Sea regime • Impacts upon Freedom of Navigation are strongly resisted • Distinction between military and non-military activities • Concerns about erosion of freedoms of navigation arising from • Increased concerns over security • Increased concerns over environmental protection • Need to maintain a balance between coastal States rights and navigational freedoms