Chapter 10 Law of the Sea海洋法

1、Law of the SeaJiang HeMap of the oceansConcept of sea and LOSlSea and Ocean (71% coverage of the earth) Geographically, a sea is part or margin of the ocean partially enclosed by land (between land and ocean) lSignificance of the sea Sea and the nature: sea and biosphere (natural law); ocean circula

2、tion and climate (rain, wind, temperature) Economic Value: transportation, fishing industry(sea food) for living resources, ocean mining industry for non-living resources ( fresh water, energy resources-oil and gas)lLOS: legal status of various marine zones and respective rights or obligations betwe

3、en coastal states and other statesMarine ZonesMeasurements of marine zones Baseline 1224WATER 200 350LAND Internal Territorial Contiguous EEZ Continental Shelf (Art. 76(5)Development of LOS(1493-1958)lFrom 1493 to 1958 A. Spain and Portugal Columbus (New World) and Dias (Cape of Good Hope) Pope Alex

4、ander VI and Inter Caetera in 1493 Treaty of Tordesillas( the line 270 leagues further west) B. Holland and England Hugo de Groot (Grotius) and Mare Liberum John Selden and Mare Clausum Cornelius van Bynkershoek and De Domino MarisDevelopment of LOS(1493-1958)1608: Hugo de Groot (Grotius) and Mare L

5、iberum The seas are the property of no one, because: No nation can control the ocean No nation can exhaust the oceans resources1635: John Selden and Mare Clausum The seas can be seen as property, because: They can be subject to national control Their resources can be exhausted1702: van Bynkershoek a

6、nd De Domino Maris only realistic control of the sea near its shore Cannon Shot Rule and the 3-mile limitDevelopment of LOS(1493-1958)1930: The Hague conference on international law Precursor to UNCLOS General agreement on treating coastal waters as sovereign territory1945: The Truman Proclamations

7、#2667 Natural Resources of the Subsoil and Sea-Bed of the Continental Shelf #2668 Coastal Fisheries in Certain Areas of the High SeasDevelopment of LOS(1493-1958)l#2667: “having concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States r

8、egards the natural resources of the subsoil and sea-bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control“l(fā)#2668: “In view of the pressing need for conservation and protection

9、 of fishery resources, the Government of the United StatesDevelopment of LOS(1493-1958) regards it as proper to establish conservation zones in those areas of the high seas contiguous to the coasts of the United States wherein fishing activities have been or in the future may be developed and mainta

10、ined on a substantial scale. Where such activities have been or shall hereafter be developed and maintained by its nationals alone, the United States regards it as proper to establish explicitly bounded conservation zones in which fishing activities shall be subject to the regulation and control of

11、the United States. Development of LOS(1493-1958)1945-1950: Latin America takes on the Truman Proclamations Mexico, 1945: Jurisdiction over CS-mineral & fishery resources Argentina, 1946: Sovereignty over CS and overlying sea Chile, 1947: As Argentina, but out to 200 miles1952: The Santiago Decla

12、ration Chile, Peru, and Ecuador claim 200 mile sovereignty Right of innocent passage through this 200 mile zone was explicitly acknowledgedDevelopment of LOS (UNCLOS I,1958)lConvention on the High Seas Freedom of Navigation; Freedom of Overflight; Freedom of Fishing; Freedom to Lay Cables and Pipeli

13、neslConvention on Territorial Seas and Contiguous Zones Territorial sovereignty over coastal waters extends beyond low tide line - no agreement on how far! Contiguous seas at 12 miles from shore Some problems here (Latin American claims)Development of LOS (UNCLOS I,1958)lConvention on the Continenta

14、l Shelf Coastal nations have sovereignty over the seabed and its resources, but not over the water and airspace above the seabed Problems with benthic specieslConvention on Fishing and Living Resources of the High Seas Recognized that marine resources were exhaustible Resolution of disputes by “bind

15、ing arbitration” was unpalatable Undefined extent of “territorial sea” led to problemsDevelopment of LOS (Cod Wars)lBackground of Cod War In 1944, Iceland gains independence from Denmark and extends its “fishery zone” to 4 miles in 1950;during 1954-1958, Icelands catches decline outside the 4-mile z

16、onel1st Cod War, 1958 Icelands economy largely dependent upon fishing; Dwindling cod stocks in the North Sea send British trawlers towards Iceland; September, 1958, Iceland extends its “fishery zone” from 4 miles to 12 miles Development of LOS (Cod Wars)lBritain doesnt accept this extension, and has

17、 Royal Navy frigates accompany its trawlers into waters claimed by IcelandlAttempted boardings, collisions, warning shots lIceland and UK agree to have International Court of Appeals in the Hague resolve disputesDevelopment of LOS (Cod Wars)l2nd Cod War, 1972September, 1972, Iceland extends its “fis

18、hery zone” from 12 miles to 50 milesBritain doesnt accept this extension, and Icelandignores the arbitration treatyIceland patrol boats cut the gear of British trawlerswithin the new 50 mile zoneIceland patrol boats cut the gear of British trawlerswithin the new 50 mile zone Development of LOS (Cod

19、Wars)Again, Royal Navy frigates accompany British trawlers into waters claimed by IcelandNATO intervenes, and an agreement to allow Britain to harvest a certain tonnage of fish within Icelands declared 50 mile limit is signedThis agreement extends to November, 1975Development of LOS (Cod Wars)l3rd C

20、od War, 19751974: Cod stocks in trouble again, In 1964, 18-year old cod being caught; In 1974, nothing older than 12-years old, so Reproductive capacity of stock is reducedBritish fisheries scientists agree with the analyses of their Icelandic colleaguesSo, one more time Iceland extends its exclusio

21、n zone to 200 milesThe termination date of the treaty allowing Britain to fish within waters claimed by Iceland passesDevelopment of LOS (Cod War)l3rd Cod War, 1975Iceland cuts trawling gear, British frigates ram Icelandic patrol boats, shots are firedIceland threatens to close an important NATO bas

22、eBritain backs down and establishes its own 200-mile limit “ Between scientists is was a very friendly cod war. The English are our best enemies”; “All the world was going to 200 miles. I said to the British minister I am quite sure you are going to 200 miles in a few years, and then we will be able

23、 to advise you on how to do it ” UNCLOS II, 1960lGoal was to resolve specific problems left by UNCLOS IWidth of Territorial SeasFisheries Limits but NO AGREEMENT REACHED ON EITHER ISSUE!Latin America (1970-1972) Montevideo, Lima, and Santo Domingo Declarations: Latin American Nations Come to a Regio

24、nal Consensus on 12-Mile Territorial Seas and 200-Mile “Patrimonial” SeasUNCLOS III, 1973-1982Largest Multilateral Treaty-Making ConferenceTreaty Available for Signing in 1982Treaty Came in to Force in 1994U.S. Voted Against the TreatyMany Nations have not Signed the TreatyAgreements and consequence

25、sEvery State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles. Contiguous zone up to 24 nautical miles from the shoreline for purposes of enforcement of customs, fiscal, immigration, or sanitary laws.Exclusive economic zone up to 200 nautica

26、l miles from the shoreline for purposes of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil.Agreements and consequencesThe resources of the seabed and ocean floor and sub

27、soil thereof beyond the limits of national jurisdiction are the common heritage of mankind.An International Seabed Authority will organize, carry out, and control activities associated with the exploitation of the resources of the international seabed.A parallel system will be established for explor

28、ing and exploiting the international seabed, one involving private and state ventures and the other involving the Authority. Agreements and consequencesA so-called Enterprise will carry out activities in the international seabed for the Authority and will be responsible for transporting, processing,

29、 and marketing minerals recovered from the international seabed.Consequences 12-Mile Territorial Sea200-Mile Exclusive Economic ZoneRights of Innocent PassageCountries outside 1982UNCLOSlCambodia, Colombia, Congo, North Korea, Dominican Republic, Ecuador, Eritrea, Estonia, Iran, Israel, Latvia, Libe

30、ria, Libya, Morocco, Niue, Peru, Syria, Thailand, East Timor, Turkey, United States, Venezuela, and 21 landlocked states including Afghanistan, Ethiopia, and Niger. lU.S. Voted Against the Treaty but it had already, unilaterally, adopted many of the treatys features, the most important being the ado

31、ption of the 200-mile EEZ in 1977.Marine ZonesTerritorial SealSovereign authoritylBreadth & MeasurementlRights of Ships (innocent passage)lRights and jurisdiction of coastal stateTerritorial SealSovereignty, subject to the Law of the Sea Convention (Art. 2)lThe sovereignty of a coastal State ext

32、ends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.lThis sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.lThe sovereignty

33、over the territorial sea is exercised subject to this Convention and to other rules of international law.Territorial SealBreadth (Art. 3)Up to 12 nautical miles from baselinelMeasurement baseline (Art. 5):Except where otherwise provided in this Convention, the normal baseline for measuring the bread

34、th of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.Territorial SealRights of Ships innocent passage (Arts 17-18)Art. 17: Subject to this Convention, ships of all Statesenjoy the right of innocent passage through

35、the territorial sea.Art. 18: Passage means navigation through the territorial sea for the purpose of:l(a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; orl(b) proceeding to or from internal waters or a call at such roadstead

36、or port facility.lPassage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same 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

37、 aircraft in danger or distress.Territorial SeaMeaning of Innocent Passage (Art. 19):lPassage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international

38、 law.lPassage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:Paraphrased: threat or use of force, weapon exercise, espionage, launching or landing of aircraft or

39、 other military device, violation of customs, fiscal, immigration or sanitary laws, willful and serious pollution, fishing, research or surveying activities, interfering with communications or other facilities, or “any other activity not having a direct bearing on passage” Territorial SealRights and

40、 Jurisdiction of Coastal State prevent or suspend innocent passagelArt. 25(1): “The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent.”lArt. 25(3): coastal state may temporarily suspend innocent passage through specified areas of territorial s

41、ea.Territorial SeaCivil Jurisdiction in Relation to Foreign Ships (Art. 28)lThe coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship.lThe coastal State may not levy execut

42、ion against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State.lParagraph 2 is without prejudice to the right of

43、the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.Territorial SeaCriminal Jurisdiction on Board a Foreign

44、Ship (Art. 27)l1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the foll

45、owing cases:(a) if the consequences of the crime extend to the coastal State;(b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;(c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent

46、 or consular officer of the flag State; or(d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.Contiguous ZonelArt.33 of the UNCLOS provides that the contiguous zone may not extend beyond 24 nautical miles from baseline from which the

47、 territorial sea is measured. The establishment of contiguous zone aimed at preventing violation of laws and regulations within its territory. The coastal state may exercise the control necessary to:Prevent infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its

48、 territory or territorial sea;Punish infringement of the above laws and regulations committed within its territory or territorial sea.Exclusive Economic ZonelSpecific legal regime special naturelBreadthlRights, jurisdiction of coastal statelRights and duties of other stateslEnforcement jurisdictionE

49、xclusive Economic ZoneSpecific Legal Regime Created by UNCLOSlArt. 55 - The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and fr

50、eedoms of other States are governed by the relevant provisions of this Convention.BreadthlArt. 57 - The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.Exclusive Economic ZoneArt. 56 - Rights, jurisdictio

51、n and duties of the coastal State in the EEZl1. In the exclusive economic zone, the coastal State has:l(a) 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

52、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, currents and winds;l(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (ii) marine scientif

53、ic research; (iii) the protection and preservation of the marine environment;l(c) other rights and duties provided for in this Convention.l2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights

54、 and duties of other States .l3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI Continental Shelf.Exclusive Economic ZoneArt. 58 - Rights and duties of other States in the EEZlIn the exclusive economic zone, all States, whether

55、 coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those as

56、sociated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.lArticles 88 to 115 rights and duties on the high seas and other pertinent rules of international law apply to the exclusive economic zone in so far as they

57、are not incompatible with this Part.lIn exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in

58、accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.Exclusive Economic ZoneArt. 73 - Enforcement of laws and regulations of the coastal StatelThe coastal State may, in the exercise of its sovereign rights to exp

59、lore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.lArrest

60、ed vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.lCoastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerne