Vous êtes sur la page 1sur 9

TERRITORIAL SOVEREIGNTY The acquisition of additional territory

Brierly defined territorial sovereignty in terms of the Five modes of acquisition are usually detailed: occupation
existence of rights over territory rather than the of terra nullius, prescription, cession, accretion and
independence of the state itself or the relation of persons subjugation (or conquest)
to persons.

The essence of territorial sovereignty is contained in the


notion of title. This term relates to both the factual and Cession
legal conditions under which ter- ritory is deemed to belong
to one particular authority or another This involves the peaceful transfer of territory from one
sovereign to an- other (with the intention that sovereignty
As the International Court noted in the Burkina Faso/Mali should pass) and has often taken place within the
19 framework of a peace treaty following a war. Indeed the
case, the word ‘title’ comprehends both any evidence
orderly transference of sovereignty by agreement from a
which may establish the existence of a right and the actual
colonial or ad- ministering power to representatives of the
source of that right
indigenous population could be seen as a form of cession.
Apart from territory actually under the sovereignty of a
Because cession has the effect of replacing one sovereign
state, interna- tional law also recognises territory over
63
which there is no sovereign. Such territory is known as by another over a particular piece of territory, the
terra nullius. In addition, there is a category of ter- ritory acquiring state cannot possess more rights over the land
called res communis which is (in contrast to terra nullius) than its predecessor had.
generally not capable of being reduced to sovereign
control. The prime instance of this is the high seas, which In other words, the rights of the territorial sovereign are
belong to no-one and may be used by all. Another example derived from a previous sovereign, who could not,
would be outer space. therefore, dispose of more than he had.

New states and title to territory Conquest and the use of force

There are basically two methods by which a new entity may Conquest, the act of defeating an opponent and occupying
gain its independence as a new state: by constitutional all or part of its territory, does not of itself constitute a basis
means, that is by agreement with the former controlling of title to the land.
administration in an orderly devolution of power, or by non-
constitutional means, usually by force, against the will of It does give the victor certain rights under international law
the previous sovereign. as regards the territory, the rights of belligerent
71
occupation, but the territory remains subject to the legal
However, a different situation arises where the new entity
title of the ousted sovereign.
gains its independence contrary to the wishes of the
previous authority, whether by secession or revolution. It
Conquest, of course, may result from a legal or an illegal
may be that the dispossessed sovereign may ultimately
use of force.
make an agreement with the new state recognising its new
status, but in the meantime the new state might well be
However, force will be legitimate when exercised in self-
regarded by other states as a valid state under
defence. Whatever the circumstances, it is not the
34
international law. successful use of violence that in international law
constituted the valid method of acquiring territory.
The principle of self-determination is also very relevant
here. Where a state gains its sovereignty in opposition to It is, however, clear today that the acquisition of territory
the former power, new facts are created and the entity may by force alone is illegal under international law. This may
well comply with the international require- ments as to be stated in view of article 2(4) of the UN Charter and other
statehood, such as population, territory and government. practice. Security Coun- cil resolution 242, for example,
Other states will then have to make a decision as to emphasised the ‘inadmissibility of the acquisition of
whether or not to recognise the new state and accept the territory by war’, while the 1970 Declaration of Princi- ples
legal consequences of this new status. But at this point a of International Law adopted by the UN General Assembly
serious problem emerges. provides that:

One possibility that could be put forward here involves the the territory of a state shall not be the object of
aban- donment of the classical rule that only states can acquisition by another state resulting from the
acquire territorial sovereignty, and the substitution of a threat or use of force. No territorial acquisition
provision permitting a people to acquire sovereignty over resulting from the threat or use of force shall be
the territory pending the establishment of the particular recognised as legal.
state
The exercise of effective control the possession forming the basis of the title must be by
virtue of the authority of the state or a` titre de souverain,
Occupation is a method of acquiring territory which belongs and not a manifestation of purely individual effort unrelated
to no one (terra nullius) and which may be acquired by a to the state’s sovereign claims. And this possession must
state in certain situations. The occupation must be by a be public so that all interested states can be made aware
state and not by private individuals, it must be effective of it.
and it must be intended as a claim of sovereignty over the
area. The high seas cannot be occupied in this manner for This latter requirement also flows logically from the
they are res communis, but vacant land may be subjected necessity for the possession to be peaceful and
to the sovereignty of a claimant state. It relates primarily uninterrupted, and reflects the vital point that prescription
to uninhabited territories and islands, but may also apply rests upon the implied consent of the former sovereign to
to certain inhabited lands. the new state of affairs. This means that protests by the
dispossessed sovereign may completely block any
Occupation, both in the normal sense of the word and in prescriptive claim
its legal meaning, was often preceded by discovery, that is
the realisation of the existence of a particular piece of
87
land. But mere realisation or sighting was never
Intertemporal law
considered (except for periods in the fifteenth and
sixteenth centuries and this is not undisputed) as sufficient
One question that arises is the problem of changing
to constitute title to territory. Something more was
conditions related to particular principles of international
required and this took the form of a symbolic act of taking
law, in other words the relevant time period at which to
possession, whether it be by the raising of flags or by
ascertain the legal rights and obligations in question. This
solemn proclamations or by more sophisticated ritual
can cause considerable difficulties since a territorial title
expressions. As time passed, the conditions changed and
may be valid under, for example, sixteenth-century legal
the arbitrator in the Island of Palmas case pointed to the
doctrines but ineffective under nineteenth-century
modern effect of discovery as merely giving an inchoate
developments. The general rule in such circumstances is
title which had to be completed within a reasonable time
that in a dispute the claim or situation in question (or
by the effective occupation of the relevant region.
106
Discovery only put other states on notice that the claimant relevant treaty, for example) has to be examined
state had a prior interest in the territory which, to become according to the conditions and rules in existence at the
legally meaningful, had to be supplemented by effective time it was made and not at a later date. This meant, for
occupation within a certain period. 107
example, that in the Island of Palmas case, the Spanish
claim to title by discovery, which the United States declared
89
Prescription is a mode of establishing title to territory it had inherited, had to be tested in the light of international
which is not terra nullius and which has been obtained legal principles in the sixteenth century when the discovery
either unlawfully or in circum- stances wherein the legality was made. This aspect of the principle is predicated upon
of the acquisition cannot be demonstrated. It is the a presumption of, and need for, stability.
legitimisation of a doubtful title by the passage of time and
the presumed acquiescence of the former sovereign, and it
reflects the need for stability felt within the international
system by recognising that terri- tory in the possession of Critical date
a state for a long period of time and uncontested cannot
be taken away from that state without serious It is not correct that there will or should always be such a
consequences for the international order. It is the critical date in territorial disputes, but where there is, acts
legitimisation of a fact. If it were not for some such undertaken after that date will not be taken into
doctrine, the title of many states to their territory would be consideration, unless such acts are a normal continuation
jeopardised. of prior acts and are not undertaken for the purpose of
improving the legal position of the party relying on them.
Prescription differs from occupation in that it relates to
territory which has previously been under the sovereignty The concept of a critical date is of especial relevance with
of a state. In spite of this, both concepts are similar in that regard to the doctrine of uti possidetis, which posits that a
they may require evidence of sovereign acts by a state over new state has the boundaries of the predecessor entity, so
a period of time. And although distinct in theory, in practice that the moment of independence itself is invariably the
these concepts are often indistinct since sovereignty over 117
critical date. This does not preclude the possibility that
an area may lapse and give rise to doubts whether an
the relevant territorial situation or rights had crystallised at
92
abandonment has taken place, rendering the territory an earlier time, in the sense of having become established
terra nullius. 118
and not altered subsequently. Where there is more
than one state involved, then the date of later
In fact, most cases do not fall into such clear theoretical
119
categories as occupation or prescription. Particular modes independence or possibly the dates of the
of acquisition that can be unambiguously related to the 120
independence of the respective states, may be taken
classic definitions tend not to be specified. Most cases
121
involve contesting claims by states, where both (or possibly depending on the circumstances. Further, it is possible
all) the parties have performed some sovereign acts. As in for there to be different critical dates for different
the instance of occupation, so prescription too requires that circumstances (for example, land and maritime disputes
122 The role of subsequent conduct: recognition,
within the same case). How- ever, the date of
acquiescence and estoppel
independence may simply mark the date of succession to
boundaries which have been established with binding force
Recognition and acquiescence are also important in cases
by earlier instruments.
of acquisition of control contrary to the will of the former
sovereign. Where the pos- session of the territory is
The importance of the critical date concept is relative and
accompanied by emphatic protests on the part of the
depends entirely upon the circumstances of the case.
former sovereign, no title by prescription can arise, for such
title is founded upon the acquiescence of the dispossessed
state, and in such circumstances consent by third states is
of little consequence. However, over a period of time
Sovereign activities (effectivit ́es) recognition may ultimately validate a defective title,
although much will depend upon the circumstances,
The exercise of effective authority, therefore, is the crucial including the attitude of the former sovereign. Where the
element. As Huber argued, ‘the actual continuous and territory involved is part of the high seas (i.e. res
peaceful display of state functions is in case of dispute the communis), acquiescence by the generality of states may
sound and natural criterion of territorial sovereignty’. affect the subjection of any part of it to another’s
sovereignty, particularly by raising an estoppel.
However, control, although needing to be effective, does
not necessarily have to amount to possession and Acquiescence and recognition are also relevant where the
settlement of all of the territory claimed. prescriptive title is based on what is called immemorial
possession, that is, the origin of the particular situation is
Palmas Case: Huber declared that the Netherlands shrouded in doubt and may have been lawful or unlawful
possessed sovereignty on the basis of ‘the actual but is deemed to be lawful in the light of general ac-
continuous and peaceful display of state functions’ quiescence by the international community or particular
evidenced by various administrative acts performed over acquiescence by a relevant other state. Accordingly,
135 acquiescence may constitute evidence reinforcing a title
the centuries. It was also emphasised that
manifestations of territorial sovereignty may assume based upon effective possession and control, rendering it
different forms, ac- cording to conditions of time and place. definitive.
Indeed, ‘the intermittence and discontinuity compatible
with the maintenance of the right necessarily differ Estoppel is a legal technique whereby states deemed to
according as inhabited or uninhabited regions are have consented to a state of affairs cannot afterwards alter
involved’. Additionally, geographical factors were relevant. their position. Estoppel may arise either by means of a prior
recognition or acquiescence, but the nature of the
Clipperton Island: The arbitrator emphasised that the consenting state’s interest is vital. Where, for example, two
actual, and not the nominal, taking of possession was a states put forward conflicting claims to territory, any
necessary condition of occupation, but noted that such acceptance by one of the other’s position will serve as a
taking of posses- sion may be undertaken in different ways bar to a renewal of contradictory assertions.
depending upon the nature of the territory concerned. In
this case, a proclamation of sovereignty by a French naval
officer later published in Honolulu was deemed sufficient to
create a valid title. Relevant to this decision was the The doctrine of uti possidetis
weakness of the Mexican claims to the guano-rich island,
as well as the uninhabited and inhospitable nature of the the administrative divisions of the Spanish empire in South
territory. America were deemed to constitute the boundaries for the
newly independent successor states, thus theoretically
Eastern Greenland case: both Norway and Denmark excluding any gaps in sovereignty which might precipitate
claimed sovereignty over Eastern Greenland. Denmark had hostilities and encourage foreign intervention.
colonies in other parts of Greenland and had granted con-
cessions in the uninhabited Eastern sector. In addition, it
proclaimed that all treaties and legislation regarding
Greenland covered the territory as a whole, as for example Beyond uti possidetis
its establishment of the width of the territorial sea, and it
sought to have its title to all of the territory recognised by The principle of uti possidetis is not able to resolve all
other states. The Court felt that these acts were sufficient 233
territorial or boundary problems. Where there is a
upon which to base a good title and were superior to relevant applicable treaty, then this will dispose of the
various Norwegian actions such as the wintering of matter completely.
expeditions and the erection of a wireless station in Eastern
Greenland, against which Denmark had protested. It is also Where the uti possidetis line could be determined neither
to be noted that it was not until 1931 that Norway actually by authoritative decisions by the appropriate authorities at
claimed the territory. the relevant time nor by subsequent practice with regard
to a particular area, recourse to equity might be necessary.
‘The common heritage of mankind’ principles which include the provisions that outer space and
celes- tial bodies were free for exploration and use by all
In 1970, the UN General Assembly adopted a Declaration states on a basis of equality and in accordance with
of Principles Governing the Seabed and Ocean Floor in international law, and that outer space and celestial bodies
which it was noted that the area in question and its re- were not subject to national appropriation by any means.
sources were the common heritage of mankind.
1967 of the Treaty on Principles Governing the Activities of
Article XI of the 1979 Moon Treaty emphasises that the States in the Exploration and Use of Outer Space, including
moon and its natural resources are the common heritage the Moon and Other Celestial Bodies. This reiterates that
of mankind, and thus incapable of national appropriation outer space, including the moon and other celestial bodies,
and subject to a particular regime of exploitation. is not subject to national appropriation by any means and
emphasises that the exploration and use of outer space
Like res communis, the areas in question are incapable of must be carried out for the benefit of all countries. The
national appropriation. Sovereignty is not an applicable Treaty does not establish as such a precise boundary
principle and the areas in question would not be ‘owned’, between airspace and outer space but it provides the
nor would any jurisdictional rights exist outside the framework for the international law of outer space.
framework of the appropriate common heritage regime
institutional arrangements. However, while a res communis Article 4 provides that states parties to the Treaty agree:
regime permits freedom of access, exploration and not to place in orbit around the earth any objects carrying
exploitation, a common heritage regime as envisaged in nuclear weapons or any other kinds of weapons of mass
the examples noted above would strictly regulate destruction, install such weapons on celestial bodies, or
exploration and exploitation, would establish management station such weapons in outer space in any other manner.
mechanisms and would employ the criterion of equity in
distributing the benefits of such activity. Under article 4, only the moon and other celestial bodies
must be used exclusively for peaceful purposes, although
The law of outer space the use of military person- nel for scientific and other
peaceful purposes is not prohibited. There are minimalist
‘The principle of respect for territorial sovereignty is also and maximalist interpretations as to how these provisions
directly infringed by the unauthorised overflight of a state’s are to be understood. The former, for example, would
territory by aircraft belonging to or under the control of the argue that only aggressive military activity is banned, while
government of an- other state. The Court noted in the 316
the latter would prohibit all military behaviour. Article 6
Benin/Niger case that ‘a boundary represents the line of provides for international responsibility for national
separation between areas of state sovereignty, not only on
activities in outer space, including the moon and other
the earth’s surface but also in the subsoil and in the
celestial bodies, whether such activities are carried on by
superjacent column of air’.
governmental agencies or by non-governmental entities,
and for assuring that national activities are carried out in
There is no right of innocent passage through the airspace
conformity with the Treaty. The activities of non-
304
of a state. Aircraft may only traverse the airspace of governmental entities in outer space, including the moon
states with the agreement of those states, and where that and other celestial bodies, require authorisation and
has not been obtained an illegal intrusion will be involved continuing supervision by the appropriate state party to the
which will justify interception, though not (save in very Treaty. When activities are carried on in outer space,
exceptional cases) actual attack. including the moon and other celestial bodies, by an inter-
national organisation, responsibility for compliance with the
Treaty is to be borne both by the international organisation
and by the states parties to the Treaty participating in such
The definition and delimitation of outer space 317
organisation.
the sovereignty of states over their airspace is limited in Under article 8, states retain jurisdiction and control over
height at most to the point where the airspace meets space personnel and vehicles launched by them into space and
itself. Precisely where this boundary lies is difficult to say under article 7 they remain responsible for any damage
and will depend upon technological and other factors, but caused to other parties to the Treaty by their space
figures between 50 and 100 miles have been put forward. 318
objects.

This aspect of space law was further developed by the


The regime of outer space Convention on International Liability for Damage Caused
by Space Objects signed in 1972, article XII of which
Beyond the point separating air from space, states have provides for the payment of compensation in accordance
agreed to apply the international law principles of res with international law and the principles of justice and
communis, so that no portion of outer space may be equity for any damage caused by space objects. Article II
appropriated to the sovereignty of individual states. provides for absolute liability to pay such compensation for
damage caused by a space object on the surface of the
UN General Assembly resolution 1962 (XVII), adopted in earth or to aircraft in flight, whereas article III provides for
1963 and entitled the Declaration of Legal Principles fault liability for damage caused elsewhere or to persons or
Governing the Activities of States in the Exploration and 319
property on board a space object. This Convention was
Use of Outer Space, lays down a series of applicable legal
invoked by Canada in 1979 following the damage allegedly Internal waters, whether harbours, lakes or rivers, are such
caused by Soviet Cosmos 954. waters as are to be found on the landward side of the
baselines from which the width of the territorial and other
The Agreement on the Rescue of Astronauts, the Return of 13
zones is measured, and are assimilated with the territory
Astronauts and the Return of Objects Launched into Outer
of the state. They differ from the territorial sea primarily in
Space was signed in 1968 and sets out the legal framework
that there does not exist any right of innocent passage
for the provision of emergency assistance to astronauts. It
from which the shipping of other states may benefit.
provides for immediate notification of the launching
authority or, if that is not immediately possible, a public
In general, a coastal state may exercise its jurisdiction over
announcement regarding space personnel in distress as
foreign ships within its internal waters to enforce its laws,
well as the immediate provision of assistance. It also covers
although the judicial authorities of the flag state (i.e. the
search and rescue operations as well as a guarantee of
state whose flag the particular ship flies) may also act
prompt return. The Convention also provides for recovery
where crimes have occurred on board ship. This concurrent
of space objects
jurisdiction may be seen in two cases.
In 1979, the Agreement Governing the Activities of States
However, a completely different situation operates where
324
on the Moon andother Celestial Bodies was adopted. the foreign vessel involved is a warship. In such cases, the
This provides for the demilitarisation of the moon and other authorisation of the captain or of the flag state is necessary
celestial bodies, although military personnel may be used before the coastal state may exercise its jurisdiction over
for peaceful purposes, and reiterates the principle the ship and its crew. This is due to the status of the
established in the 1967 Outer Space Treaty. Under article warship as a direct arm of the sovereign of the flag state.
IV, the exploration and the use of the moon shall be the
province of all mankind and should be carried out for the
benefit of all. Article XI emphasises that the moon and its
natural resources are the common heritage of mankind and Baselines
are not subject to national appropriation by any means.
That important article emphasises that no private rights of The width of the territorial sea is defined from the low-
ownership over the moon or any part of it or its natural water mark around the coasts of the state.
resources in place may be created, although all states
parties have the right to exploration and use of the moon. the low-water line along the coast is defined ‘as marked on
The states par- ties also agreed under article XI(5) and (7) large-scale charts officially recognised by the coastal state’.
to establish an international regime to govern the
exploitation of the resources of the moon, when this 24
the low-water line of a low-tide elevation may now be
325
becomes feasible. The main purposes of the used as a baseline for measuring the breadth of the
international regime to be established are to include: territorial sea if it is situated wholly or partly within the the
territorial sea measured from the mainland or an island.
a. the orderly and safe development of the natural
resources of the moon; However, a low-tide elevation wholly situated beyond the
25
territorial sea will generate no territorial sea of its own.
b. the rational management of those resources;
When a low-tide elevation is situated in the overlapping
area of the territorial sea of two states, both are in principle
c. the expansion of opportunities in the use of those
entitled to use this as part of the relevant low-water line in
resources; and
measuring their respective territorial sea.
d. an equitable sharing by all states parties in the
Fisheries case: The Court held that it was the outer line of
benefits derived from
the skjaergaard that was relevant in establishing the
those resources, whereby the interests and needs
baselines, and not the low-water line of the mainland. This
of the develop- ing countries, as well as the efforts
was dictated by geographic realities. The Court noted that
of those countries which have contributed either
the normal method of drawing baselines that are parallel
directly or indirectly to the exploration of the
to the coast (the trac ́e parall`ele) was not applicable in
moon, shall be given special consideration.
this case because it would necessitate complex geometrical
constructions in view of the extreme indentations of the
coastline and the existence of the series of islands fringing
the coasts.
The Law of the Sea

The territorial sea


Bays
Internal waters
It was long accepted that a straight closing line could be
Internal waters are deemed to be such parts of the seas as
used across the mouths of bays, but there was
are not either the high seas or relevant zones or the
considerable disagreement as to the permitted width of the
territorial sea, and are accordingly classed as appertaining
42
to the land territory of the coastal state. bay beyond which this would not operate. The point was
settled in article 7 of the 1958 Convention on the Territorial
Sea. This declared that:
if the distance between the low-water marks of the natural total number of baselines enclosing any
entrance points of a bay does not exceed twenty-four archipelago may exceed that length, up to a
miles, a closing line may be drawn between these two low- maximum length of 125 nautical miles.
water marks, and the waters enclosed thereby shall be
considered as internal waters,
3. The drawing of such baselines shall not depart to
43 any appreciable extent from the general
otherwise a straight baseline of 24 miles may be drawn.
configuration of the archipelago.
This provision, however, does not apply to historic bays.
These are bays the waters of which are treated by the
coastal state as internal in view of historic rights supported
4. Such base lines shall not be drawn from low-tide
by general acquiescence
elevations, unless light- houses or similar
installations which are permanently above sea
level have been built on them or where a low-tide
elevation is situated wholly or partly at a distance
Islands
not exceeding the breadth of the territorial sea
from the nearest island.
As far as islands are concerned, the general provisions
noted above re- garding the measurement of the territorial
sea apply. Islands are defined in the 1958 Convention on
5. The system of such baselines shall not be applied
the Territorial Sea as consisting of ‘a naturally- formed area
by an archipelagic state in such a manner as to
of land, surrounded by water, which is above water at high
cut off from the high seas or the exclusive
58
tide’, and they can generate a territorial sea, contiguous economic zone the territorial sea of another state.
zone, exclusive economic zone and continental shelf where
relevant.
6. If a part of the archipelagic waters of an
Where there ex- ists a chain of islands which are less than archipelagic state lies between two parts of an
24 miles apart, a continuous band of territorial sea may be immediately adjacent neighbouring state, existing
60 rights and all other legitimate interests which the
generated. However, article 121(3) of the 1982
Convention provides that ‘rocks which cannot sustain latter state has traditionally exercised in such
human habi- tation or economic life of their own shall have waters and all rights stipulated by agreement
no exclusive economic zone or continental shelf’. between those states shall continue and be
respected.

Archipelagic states 7. For the purpose of computing the ratio of water


to land under paragraph 1, land areas may include
waters lying within the fringing reefs of islands
and atolls, including that part of a steep-sided
Article 46(a) defines an archipelagic state as ‘a state
oceanic plateau which is enclosed or nearly
constituted wholly by one or more archipelagos and may
enclosed by a chain of limestone islands and
include other islands’, while article 46(b) defines
drying reefs lying on the perimeter of the plateau.
archipelagos as ‘a group of islands, including parts of
islands, interconnecting waters and other natural features
which are so closely interrelated that such islands, waters
and other natural features form an intrinsic ge- ographical, 8. The baselines drawn in accordance with this
economic and political entity, or which historically have article shall be shown on charts of a scale or
been regarded as such’. scales adequate for ascertaining their position.
Alter- natively, lists of geographic co-ordinates of
points, specifying the geode- tic datum, may be
Article 47 pro- vides that an archipelagic state may draw
substituted.
straight archipelagic baselines joining the outermost points
of the outermost islands and drying reefs of the
archipelago, which would then serve as the relevant
baselines for other purposes. 9. The archipelagic states shall give due publicity to
such charts or lists of geographical co-ordinates
and shall deposit a copy of each such chart or list
1. An archipelagic state may draw straight
with the Secretary-General of the United Nations.
archipelagic baselines joining the outermost
points of the outermost islands and drying reefs
of the archipelago provided that within such
baselines are included the main islands and in All the waters within such baselines are archipelagic waters
areas in which the ratio of the area of the water 70
over which the state has sovereignty, but existing
to the area of the land, including atolls, is between agreements, traditional fishing rights and existing
1 to 1 and 9 to 1. 71
submarine cables must be respected. In addition, ships
of all states shall enjoy the rights of innocent passage
72
2. The length of such baselines shall not exceed 100 through archipelagic waters and all the ships and aircraft
nautical miles, except that up to 3 per cent of the are to enjoy a right of archipelagic sea lanes passage
through such lanes and air routes designated by the French writer Gidel, and it appeared in the Convention on
archipelagic state for ‘continuous and expeditious passage’. the Territorial Sea. Article 24 declared that:

The width of the territorial sea In a zone of the high seas contiguous to its territorial sea,
the coastal state may exercise the control necessary to:
Article 3 of the 1982 Convention, however, notes that all
states have the right to establish the breadth of the (a) Prevent infringement of its customs, fiscal, immigration
territorial sea up to a limit not exceeding 12 nautical miles or sanitary regulations within its territory or territorial sea;
from the baselines.
(b) Punish infringement of the above regulations
committed within its territory or territorial sea.

The juridical nature of the territorial sea Thus, such contiguous zones were clearly differentiated
from claims to full sovereignty as parts of the territorial sea,
Articles1 and 2 of the Convention on the Territorial Sea by being referred to as part of the high seas over which
1958 provide that the coastal state’s sovereignty extends the coastal state may exercise particular rights. Unlike the
over its territorial sea and to the airspace and seabed and territorial sea, which is automatically attached to the land
subsoil thereof, subject to the provisions of the Convention territory of the state, contiguous zones have to be
and of international law. The territorial sea forms an specifically claimed.
undeniable part of the land territory to which it is bound,
so that a cession of land will automatically include any band Under article 33 of the 1982 Convention, however, a
of territorial waters. coastal state may claim a contiguous zone (for the same
purpose as the 1958 provisions) up to 24 nautical miles
The right of innocent passage from the baselines. Under the 1982 Convention it would
form part of the exclusive economic zone complex.
Article 17 of the 1982 Convention lays down the following
principle: ‘ships of all states, whether coastal or land-
locked, enjoy the right of innocent passage through the
territorial sea’. Passage is defined as navigation through The exclusive economic zone
the territorial sea for the purpose of crossing that sea
without entering internal waters or of proceeding to or Under article 56, the coastal state in the economic zone
from that sea without entering internal waters or of has inter alia:
proceeding to or from internal waters. It may include
temporary stoppages, but only if they are incidental to . (a) sovereign rights for the purpose of exploring
ordinary navigation or necessitated by distress or force and exploiting, conserving and managing the
majeure. 125
natural resources, whether living or non-
living, of the waters superjacent to the seabed
The coastal state may not impose charges.
and of the seabed and its subsoil and with regard
to other activities for the economic exploitation
Passage ceases to be innocent under article 14(4) of the
and exploration of the zone, such as the
1958 Convention where it is ‘prejudicial to the peace, good
production of energy from the water, currents and
order or security of the coastal state’ and in the case of
winds;
foreign fishing vessels when they do not observe such laws
and regulations as the coastal state may make and publish
to prevent these ships from fishing in the territorial sea. In
. (b) jurisdiction with regard to (i) the architecture
addition, submarines must navigate on the surface and
and use of artificial is- lands, installations and
show their flag.
126 127
structures; (ii) marine scientific research;
The statement noted that where a ship in passage through (iii) the protection and preservation of the marine
the territorial sea was not engaged in any of the activities environment.
laid down in article 19(2), it was ‘in innocent passage’ since
that provision was exhaustive. This important statement
underlines the view that the list of activities laid down in Article 55 provides that the zone starts from the outer limit
article 19(2) is exhaustive so that a ship passing through of the territorial sea, but by article 57 shall not extend
the territorial sea not engaging in any of these activities is beyond 200 nautical miles from the baselines from which
in innocent passage. It also lends considerable weight to the breadth of the territorial sea is measured.
the view that warships have indeed a right of innocent
passage through the territorial sea and one that does not Article 58 lays down the rights and duties of other states in
necessitate prior notification or authorisation. the exclusive economic zone. These are basically the high
seas freedom of navigation, overflight and laying of
submarine cables and pipelines. It is also provided that in
exercising their rights and performing their duties, states
The contiguous zone should have due regard to the rights, duties and laws of
the coastal state.
The idea of a contiguous zone (i.e. a zone border- ing upon
the territorial sea) was virtually formulated as an Article 60(2) provides that in the exclusive economic zone,
authoritative and consistent doctrine in the 1930s by the the coastal state has jurisdiction to apply customs laws and
regulations in respect of artificial islands, installations and their own and their presence in no way affects the
structures. delimitation of the territorial waters of the coastal state.

Where the continental shelf of a state extends beyond 200


miles, article 82 of the 1982 Convention provides that the
The continental shelf coastal state must make payments or contributions in kind
in respect of the exploitation of the non-living resources of
The continental shelf is a geological expression referring to the continental shelf beyond the 200-mile limit.
the ledges that project from the continental landmass into
the seas and which are covered with only a relatively These payments and contributions are to be made to the
shallow layer of water (some 150–200 metres) and which International Seabed Authority, which shall distribute them
eventually fall away into the ocean depths (some amongst state parties on the basis of ‘equitable sharing
thousands of metres deep). These ledges or shelves take criteria.
up some 7 to 8 per cent of the total area of ocean and their
extent varies considerably from place to place.

The vital fact about the continental shelves is that they are The high seas
rich in oil and gas resources and quite often are host to
extensive fishing grounds. Article 87 of the 1982 Convention (developing article 2 of
the 1958 Geneva Convention on the High Seas) provides
Article 76(1) of the 1982 Convention provides as to the that the high seas are open to all states and that the
outer limit of the continental shelf that: freedom of the high seas is exercised under the conditions
laid down in the Convention and by other rules of
[t]he continental shelf of a coastal state comprises the international law. It includes inter alia the freedoms of
seabed and subsoil of the submarine areas that extend navigation, overflight, the laying of submarine cables and
beyond its territorial sea throughout the natural 292
pipelines, the construction of artificial islands and other
prolongation of its land territory to the outer edge of the
293
continental margin, or to a distance of 200 nautical miles installations permitted under international law, fishing,
from the baselines from which the breadth of the territorial 294
and the conduct of scientific research. Such freedoms
sea is measured where the outer edge of continental are to be exercised with due regard for the interests of
margin does not extend up to that distance. other states and also with due regard for the rights under
the Convention regarding activities in the International
The rights and duties of the coastal state Seabed Area.

The coastal state may exercise ‘sovereign rights’ over the


continental shelf for the purposes of exploring it and
exploiting its natural resources under article 77 of the 1982 Jurisdiction on the high seas
Convention. Such rights are exclusive in that no other state
may undertake such activities without the express consent It is, basically, the flag state that will enforce the rules and
of the coastal state. These sovereign rights (and thus not regulations not only of its own municipal law but of
territorial title as such since the Convention does not talk international law as well. A ship without a flag will be
in terms of ‘sovereignty’) do not depend upon occupation deprived of many of the benefits and rights available under
or express proclamation. the legal regime of the high seas.
The Convention expressly states that the rights of the The nationality of the ship will depend upon the flag it flies,
coastal state do not affect the status of the superjacent but article 91 of the 1982 Convention also stipulates that
waters as high seas, or that of the airspace above the there must be a ‘genuine link’ between the state and the
165 ship.
waters. This is stressed in succeeding articles which
note that, subject to its right to take reasonable measures
for exploration and exploitation of the continental shelf, the Ships are required to sail under the flag of one state only
coastal state may not impede the laying or maintenance of and are subject to its exclusive jurisdiction (save in
cables or pipelines on the shelf. In addition, such exceptional cases). Where a ship does sail under the flags
exploration and exploitation must not result in any of more than one state, according to convenience, it may
unjustifiable interference with navigation, fishing or the be treated as a ship without nationality and will not be able
conservation of the living resources of the sea. 316
to claim any of the nationalities concerned. A ship that
is stateless, and does not fly a flag, may be boarded and
The coastal state may, under article 80 of the 1982 seized on the high seas.
Convention, construct and maintain installations and other
devices necessary for exploration on the continental shelf The basic principle relating to jurisdiction on the high seas
and is entitled to establish safety zones around such is that the flag state alone may exercise such rights over
installations to a limit of 500 metres, which must be re- 318 319
spected by ships of all nationalities. Within such zones, the the ship. This was elaborated in the Lotus case,
state may take such measures as are necessary for their where it was held that ‘vessels on the high seas are subject
protection. But although under the jurisdiction of the to no authority except that of the state whose flag they fly’.
coastal state, these installations are not to be considered This exclusivity is without exception regarding warships
as islands. This means that they have no territorial sea of and ships owned or operated by a state where they are
used only on governmental non-commercial service. Such fleeing to the high seas. In reality it means that in certain
ships have, according to articles 95 and 96 of the 1982 defined circumstances a coastal state may extend its
Convention, ‘complete immunity from the jurisdiction of jurisdiction onto the high seas in order to pursue and seize
3 a ship which is suspected of infringing its laws.
any state other than the flag state’.
It notes that such pursuit may commence when the
authorities of the coastal state have good reason to believe
that the foreign ship has violated its laws. The pursuit must
Exceptions to the exclusivity of flag-state jurisdiction
start while the ship, or one of its boats, is within the internal
waters, territorial sea or contiguous zone of the coastal
Right of visit
state and may only continue outside the territorial sea or
contiguous zone if it is uninterrupted. However, if the
it is well recognised in customary international law that
pursuit commences while the foreign ship is in the
warships have a right of approach to ascertain the
contiguous zone, then it may only be undertaken if there
nationality of ships. However, this right of approach to
has been a violation of the rights for the protection of which
identify vessels does not incorporate the right to board or
the zone was established. The right may similarly
visit ships. This may only be undertaken, in the absence of
commence from the archipelagic waters. In addition, the
hostilities between the flag states of the warship and a
right will apply mutatis mutandis to violations in the
merchant vessel and in the absence of special treaty
exclusive economic zone or on the continental shelf
provisions to the contrary, where the ship is engaged in
(including safety zones around continental shelf
piracy or the slave trade, or, though flying a foreign flag or
installations) of the relevant rules and regulations
no flag at all, is in reality of the same nationality as the
applicable to such areas.
warship or of no nationality. But the warship has to operate
carefully in such circumstances, since it may be liable to
Hot pursuit only begins when the pursuing ship has
pay compensation for any loss or damage sustained if its
satisfied itself that the ship pursued or one of its boats is
suspicions are unfounded and the ship boarded has not
within the limits of the territorial sea or, as the case may
committed any act justifying them
be, in the contiguous zone or economic zone or on the
continental shelf. It is essential that prior to the chase a
visual or auditory signal to stop has been given at a
distance enabling it to be seen or heard by the foreign ship
Piracy
and pursuit may only be exercised by warships or military
aircraft or by specially authorised government ships or
Piracy is strictly defined in international law and was
planes. The right of hot pursuit ceases as soon as the ship
declared in article 101 of the 1982 Convention to consist of
pursued has entered the territorial waters of its own or a
any of the following acts:
third state.
(a) Any illegal acts of violence, detention or any act of
depredation, commit- ted for private ends by the crew or
the passengers of a private ship or private aircraft and
directed: (i) on the high seas, against another ship or
aircraft, or against persons or property on board such ship
or aircraft; (ii) against a ship, aircraft, persons or property
in a place outside the jurisdiction of any state; (b) Any act
of voluntary participation in the operation of a ship or of an
aircraft with knowledge of facts making it a pirate ship or
aircraft; (c) Any act of inciting or of intentionally facilitating
an act described in subparagraph (a) or (b).

The essence of piracy under international law is that it must


be committed for private ends. In other words, any
hijacking or takeover for political reasons is automatically
excluded from the definition of piracy. Similarly, any acts
committed on the ship by the crew and aimed at the ship
itself or property or persons on the ship do not fall within
this category.

Any and every state may seize a pirate ship or aircraft


whether on the high seas or on terra nullius and arrest the
persons and seize the property on board.

Hot pursuit

The right of hot pursuit of a foreign ship is a principle


designed to ensure that a vessel which has infringed the
rules of a coastal state cannot escape punishment by