LEGAL REGIME -UNCLOS 1982

Internal Water Territorial Sea Contiguous Zone Continental Shelf Exclusive Economic Zone High Sea The Area

INTERNAL WATERS
Inclusive of waters on the landward side of the baseline of the territorial sea of a State Consists of :
Ports & Harbours Lakes , Rivers & Canals And waters as defined prior to the 1982 LOSC

Absolute sovereignty of the State In the absence of treaty or other agreement, no right of passage, innocent or otherwise exists for foreign vessels in internal waters
2

Sovereignty status Total sovereignty over all waters on the landward side of the baseline. Coastal States free to set its own laws, use any resource. Foreign vessels have no right of passage. Foreign vessel must seek permission and passage allowed after positive clear consent is given

 The sovereign rights over the internal water is sucjected to UNCLOS in Article 8 ( 2)
If that water has not been part of the designated internal water of the state If the internal water is part of the rights of innocent passage provided under the 1982 UNCLOS.

Article 8(2) LOSC 1982

Established straight baseline in accordance with the method set forth under the Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such. In that situation a right of innocent passage as provided by UNCLOS shall exist
5

Art 8(2)
Only apply
On measurement of straight baseline The water collumn has not been encounter yet in the present internal water measurement Innocent passage Rights already existed under the Convention

Internal Waters: Sea landward of the baseline where the State has full sovereign authority

Territorial Sea: Sea from the baseline to the 12 mile limit where State has full sovereign authority subject to rights of innocent passage

INTERNAL WATERS
Inclusive of waters on the landward side of the baseline of the territorial sea of a State Consists of :
Ports & Harbours Lakes , Rivers & Canals And waters as defined prior to the 1982 LOSC

Absolute sovereignty of the State

Wildenhus case
120 U.S 1 (1887) It is part of the law of civilised nations that when a merchant vessel of one country enters the ports of another for the purpose of trade, it subjects itself to the law of the place to which it goes, Unless by the treaty or otherwise the two countries have come to some different understanding or agreement.

Waite C.J Decision

It would be beneficial if the local government would refrain from the internal discipline of the ship This matter should be left to be dealt with by the authorities of the nations to which the vessel belonged to If crime is committed on board the ship,
that disturb the peace and tranquility of the country where the vessel been brought, the offender is not entitled to any exemption then, he is subjected to the local law for punishment, only if the local law see fits to assert their authority.

ABSOLUTE SOVEREIGNTY OF THE STATE

Coastal States free to set laws, use any resource.
In the absence of treaty or other agreement, no right of passage, innocent or otherwise exists for foreign vessels in internal waters .

Foreign vessels have no right of passage even in historic bays :

Gulf of Sidha USA protested twice against Libya since 1982 Libya has never granted innocent passage to any foreign vessel
11

Article 8(2) LOSC 1982

Established straight baseline in accordance with the method set forth under the Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such. In that situation a right of innocent passage as provided by UNCLOS shall exist :
historic title has to exist in order for the title to be continued
12

Modification

Rights of access through treaty

Rights of access for vessels in distress Innocent passage [Article 8 (2)]
(1923 Convention, 1994 GATT, EC Treaties)

13

Two modifications:

Immunity from enforcement jurisdiction: Vessels in ports of refuge Warships Discretionary use of enforcement jurisdiction:
The state should only use it in matters that does not affect the peace and good order of the port: Certain serious crimes When requested by master and consulate Involves a non-crew member Technical, sanitarian, fiscal, custom legislation
14

Jurisdiction II A right to leave port? Linked to the jurisdiction of the state: e.g. seaworthiness Safeguards? Extended jurisdiction:
Exercise of jurisdiction for activities beyond the internal waters:

Violations in its territorial sea and EEZ Continuous violations (e.g. stricter regulations on construction) Violations on the high seas or in the EEZ or territorial sea of another state

An obligation to exercise jurisdiction?

Flag state jurisdiction:

Prescriptive jurisdiction applies but limited right to enforcement

15

BASELINE
18 MARCH 2013

16

17

IMPORTANCE OF THE BASELINE

MAINLAND INTERNAL WATERS

Lakes, canals, rivers, ports and other waters inside the baseline (Article 8)

BASELINE

Territorial sea (Article 3)

Contiguous Zone (Article 33)

Up to 12 nautical miles

SEA
Continental Shelf (Article 76, Paragraph 1)

Up to 24 nautical miles

Exclusive Economic Zone (Article 57)

Up to 200 nautical miles

In exceptional circumstances given in Article 76, Paragraphs 3-6 AREA (Article 1, Paragraph 1; Article 134, Paragraph 3) The Area stars where the jurisdiction of the coastal state over the continental shelf ends (Article 76) The Area beyond 200 nautical miles is subject contributions to the Sea-bed Authority (Article 82)

Up to 350 nautical miles or not more than 100 nautical miles from the 2,500 meter isobath depth line HIGH SEAS (Article 86)

-If an exclusive economic Zone is established, the high seas start at the outer limits of the Zone (Article 86)
- otherwise, they begin from the outer limits of the territorial sea (Article 86) - A contiguous Zone alone does not affect the status as high seas 18

Gulf of Maine Case (Canada v. US)

It is a fundamental norm of international law that a maritime boundary be in conformity with equitable principles, having regard to all relevant circumstances, in order to achieve an equitable result for the ICJ in this case, the basic criteria used in the delimitation process must be based on geometrical methods
19

20

STRAIGHT BASELINE
INDENTED COASTLINE & FRINGING ISLAND

21

STRAIGHT BASELINES
BASELINE BASELINE

INDENTED COASTLINE

FRINGING ISLANDS
22

LEGAL BAYS

SEMI-CIRCLE TEST
< or = 24NM ACROSS AREA BAY > AREA SEMI-CIRCLE
23

HISTORIC BAYS
MEDITERRANEAN SEA
TRIPOLI

32 DEG 30 MIN

GULF OF SIDRA

BENGHAZI

LIBYA

100NM
24

INTERNAL WATER

25

International Law prespective

Internal waters Waters landward of the baseline are defined as internal waters, the state has complete jurisdiction:
not even innocent passage is allowed. Lakes, and rivers are considered internal waters, For archepelagic island their internal water is known as "archipelagic waters" within the outermost islands of an archipelagic state
Indonesia or Philippines.

INTERNAL WATERS
Inclusive of waters on the landward side of the baseline of the territorial sea of a State Consists of :
Ports & Harbours Lakes , Rivers & Canals And waters as defined prior to the 1982 LOSC

Absolute sovereignty of the State In the absence of treaty or other agreement, no right of passage, innocent or otherwise exists for foreign vessels in internal waters
27

Internal waters

Covers all waters on the landward side of the baseline. Coastal States free to set laws, use any resource. Foreign vessels have no right of passage.

28

Article 8(2) LOSC 1982

Established straight baseline in accordance with the method set forth under the Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such. In that situation a right of innocent passage as provided by UNCLOS shall exist
29

Internal Waters: Sea landward of the baseline where the State has full sovereign authority

Territorial Sea: Sea from the baseline to the 12 mile limit where State has full sovereign authority subject to rights of innocent passage

INTERNAL WATERS
Inclusive of waters on the landward side of the baseline of the territorial sea of a State Consists of :
Ports & Harbours Lakes , Rivers & Canals And waters as defined prior to the 1982 LOSC

Absolute sovereignty of the State

31

Wildenhus case
120 U.S 1 (1887) It is part of the law of civilised nations that when a merchant vessel of one country enters the ports of another for the purpose of trade, it subjects itself to the law of the place to which it goes, Unless by the treaty or otherwise the two countries have come to some different understanding or agreement.

Waite C.J Decision

It would be beneficial if the local government would refrain from the internal discipline of the ship This matter should be left to be dealt with by the authorities of the nations to which the vessel belonged to If crime is committed on board the ship,
that disturb the peace and tranquility of the country where the vessel been brought, the offender is not entitled to any exemption then, he is subjected to the local law for punishment, only if the local law see fits to assert their authority.

ABSOLUTE SOVEREIGNTY OF THE STATE

Coastal States free to set laws, use any resource.
In the absence of treaty or other agreement, no right of passage, innocent or otherwise exists for foreign vessels in internal waters .

Foreign vessels have no right of passage even in historic bays :

Gulf of Sidha USA protested twice against Libya since 1982 Libya has never granted innocent passage to any foreign vessel
34

Article 8(2) LOSC 1982

Established straight baseline in accordance with the method set forth under the Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such. In that situation a right of innocent passage as provided by UNCLOS shall exist :
historic title has to exist in order for the title to be continued
35

Modification

Rights of access through treaty

Rights of access for vessels in distress Innocent passage [Article 8 (2)]
(1923 Convention, 1994 GATT, EC Treaties)

36

Two modifications:

Immunity from enforcement jurisdiction: Vessels in ports of refuge Warships Discretionary use of enforcement jurisdiction:
The state should only use it in matters that does not affect the peace and good order of the port: Certain serious crimes When requested by master and consulate Involves a non-crew member Technical, sanitarian, fiscal, custom legislation
37

Jurisdiction II A right to leave port? Linked to the jurisdiction of the state: e.g. seaworthiness Safeguards? Extended jurisdiction:
Exercise of jurisdiction for activities beyond the internal waters:

Violations in its territorial sea and EEZ Continuous violations (e.g. stricter regulations on construction) Violations on the high seas or in the EEZ or territorial sea of another state

An obligation to exercise jurisdiction?

Flag state jurisdiction:

Prescriptive jurisdiction applies but limited right to enforcement

38

TERRITORIAL WATERS

39

Effect of LOSC 1982 on Malaysia

Practice dualism theories of international law 1956 Federal Constitution Art 75-79 Malaysia signed on the first day opening for signature in Montego Bay 30th April 1982 Ratified the Convention 19th November 1998 YDPA sent a reservation letter on the 19th November 1999

40

MALAYSIAS MARITIME ZONES

Internal Waters 97,306.83 km2 37, 571 bn2 63,665.53 km2 24,581.85 bn2 476, 761.87 km2 184, 082.22 bn2

Territorial Waters

Continental Shelf

Exclusive Economic Zone -

453,186.18 km2 174, 979.43 bn2 4492 km 1737 km (Semenanjung) 2755 km (Sabah dan Sarawak) 1:2
41

Coastline

Land and Sea Ratio

Geographical Location of Malaysia

Center of South East Asia and sea borders with

Indonesia, Singapore, Thailand, Brunei, Vietnam and Philippines

4 major seas Straits of Malacca, South China, Sulu Sea and Celebes Sea + Strait of Johor Sea lane of Communication (SLOC) Straits of Malacca and South China Sea

42

Notification of A New Map of the Continental Shelf of Malaysia, 21 December 1929,

43

MALAYSIA MARITIME JURISDICTION

44

MALAYSIA MARITIME JURISDICTION

45

46

47

48

LEGISLATIVE INSTRUMENTS
Continental Shelf Act 1966 Proclamation of EEZ Act 1980 EEZ Act 1984 Fisheries Act 1985 Petroleum Mining Act 1966 Environmental Quality Act 1974 Merchant Shipping Act 1952 MMEA Act 2004
49

AGENCIES AND AUTHORITIES

Royal Malaysian Air Force, Army and Navy Malaysian Maritime Enforcement Agency Royal Malaysian Customs Department of Immigration Department of Fisheries (Min. of Agriculture) Royal Malaysian Police A-Gs Department; MFA Marine Department Various Port Authorities

50

 Territorial waters are all waters within the jurisdictional limits set by international law to an independent state inclosed waters:
Rivers lakes and other inland waters wholly within the boundaries of a state;

Origin

if the boundaries of a state are rivers or lakes or other inland waters, unless one of the riparian states has a good title to the whole bed of the same, bounding non-navigable rivers to the middle of such streams, bounding navigable rivers to the middle of their deepest channel, and bounding lakes and other inland waters to the middle of the same;
And includes ports, bays, straits, sounds or arms of the sea within (intra fauces) headlands belonging to the same state not more than two marine leagues apart
51

Extent of territorial waters

Prior to LOSC 1982
Limits is not uniform Limitation has some relation to the notion of effective control of a State In 18th Century most State use 3 nm or cannon shot rule in measuring the extent of territorial water Legally acceptable extent of territorial water Some state made an attempt to claim larger After Truman proclamation 1945 most states claim 12 nm and more

52

Law governing territorial waters

International Law The state inclosing them within its naturally extended territory has a right of ownership, as well as a right of jurisdiction, over them; in order that the passageways of commerce and navigation may be subject to public authority and control , the title to the land under water, and to the shore below ordinary high-water mark,
53

Exclusive Jurisdiction
Although a state is entitled to exclusive jurisdiction both civil and criminal, over its territorial waters, usage gives a concurrent criminal jurisdiction over offenses committed on foreign vessels in such waters to the states to which such vessels belong

54

Exception
the state entitled to exclusive criminal jurisdiction will not exercise it in such cases, the parties being exclusively foreign, unless its authority is invoked, or unless the peace of the country is disturbed.

55

Modern Law of the sea

Begins with Truman Proclamation Open sea or the High Sea are now subjected to ownership claim by States
England asserted a right of ownership over the sea surrounding Great Britain as far as the coasts of neighboring countries; Spain declared its exclusive right to navigate the gulf of Mexico and the Pacific ocean; Portugal sought to bar the rest of the world from the gulf of Guinea and the Indian ocean; Venice claimed the Adriatic, Genoa the Ligurian, and Denmark the North seas.

56

Jurisdiction extended
During the sixteenth and seventeenth centuries assertions of proprietary rights based upon prescription, or discovery, or police services, or papal grant, over the open sea, were general, and were maintained with varying success

57

Exclusive possession of open sea

The physical impossibility of obtaining and keeping exclusive possession of any part of the open sea, the growth of commerce and the consequent recognition of the necessity of the free navigation of the ocean, led to a contest between the advocates of mare clausum and those of mare liberum, which was begun in 1609 by Grotius and John Shelden later.

58

Exclusive Jurisdiction of Territorial Sea In International Law :

refers to that part of the ocean immediately adjacent to the shores of a state and subject to its territorial jurisdiction.

The state possesses both the jurisdictional right to regulate, police, and adjudicate the territorial waters and the proprietary right to control and exploit natural resources in those waters and exclude others from them. The legal status of territorial waters also extends to the seabed and subsoil under them and to the airspace above them.
59

Modern Definition
LOSC 1982 a belt of coastal water extending at most 12 nm from the baseline (usually the low-water mark) of a coastal state. The territorial sea is regarded as the sovereign territory of a state, although foreign sips ( both military and civilian) are allowed innocent passage through it This sovereignty also extends to the airspace over and seabed below
60

Limit of territorial waters

A states territorial sea extends up to 12 nm from its baseline If this would overlap with another states territorial sea, the border is taken as the median line as the point between the states baselines, unless The states in question agree otherwise
Indonesia- Malaysia MOU on Natunas Island

A state can also choose to claim a smaller territorial sea

Singapore 3 nm

Some state claim more than allowed by the LOSC 1982

61

Australias maritime claim

Australia claims maritime territory throughout the southern hemisphere, greater than its land area. Blue Line : Territorial waters
Green: 24-mile Contiguous Zone Orange: 200-mile EEZ Blue: claimed Continental 62 Shelf Prolongation

The term territorial waters

Also sometimes used informally to describe any area of water over which the state has jurisdiction including also the internal waters, the contiguous zones , the exclusive economic zones and potentially the continental shelf.

63

Coastal States rights over Territorial waters

This term is used to refer to bodies of water which are under the direct control of a nation or state. By LOSC 1982, lakes and rivers within a country are automatically considered territorial waters, since they are bounded by the nations land. Therefore the term is usually used specifically in reference to the ocean waters which surround the nations coastline.

64

Territorial Waters

Belt of waters 12 nautical miles from the baseline. Within the area coastal State free to legislate and use any resource. Vessels given the right of innocent passage.

65

Rights of Foreign Vessels

Transit Passage Ships and aircraft have the right to an unimpeded transit. It must be expeditious and continuous.
Subs can be submerged Can have flight ops Cant conduct research Follow rules of the road and dumping laws Cant be threatening
66

TRANSIT PASSAGE
International Straits With Overlapping Territorial Seas Normal Mode Of Operation:
Submerged Transits Permitted For Submarines Formation Steaming Permitted Warships May Launch And Recover Aircraft

67

INNOCENT PASSAGE
Must not be prejudicial to peace, good order, or security. Must be continuous, expeditious, and on the surface. Prohibitions:
Launching/landing any aircraft or military device. Exercises involving any weapons. Any activity not having a direct bearing on passage Stopping/Anchoring permitted only as required for safety of navigation.
68

Innocent Passage
A passage through the territorial seas. It must be continuous and expeditious
can anchor if incident to normal navigation Must show flag Subs must be surfaced State has the right to regulate No flight ops

69

Innocent Passage
The right of innocent passage is a wellestablished rule and constitutes a part of the territorial sea regime. However, while there is a uniform State practice in innocent passage for merchant ships, whether the right of innocent passage should be accorded to warships remains a controversial issue.

70

Innocent Passage-LOS Convention

The LOS Convention, like the 1958 Geneva Convention, contains no provision that expressly allows or denies warships a right of innocent passage. It stipulates only that ships of all states enjoy the right of innocent passage through the territorial sea, defining innocent passage as transit that is not prejudicial to the peace, good order or security of the coastal state.
71

Transit vs. Innocent Passages

A passage is not innocent if there is:
weapons exercises, intelligence gathering, launch and recovery of vessels or aircraft Polluting or researching

They can do anything to prevent you from making a noninnocent passage Coastal State can make laws and regulations regarding innocent passages What about joint statement of two agreeing state on Innocent passage? 72

Innocent Passage-State Practice The Commanders Handbook on the Law of Naval Operations lists 27 States which require prior permission and 12 other require prior notification.

73

Problem
Jackson Hole Joint Statement on the Law Governing Innocent Passage Rules
1989 agreement by the USSR and US that their two governments are guided by UNCLOS. Their uniform interpretation recognized that the relevant rules governing innocent passage of ships in the territorial sea are stated in UNCLOS, and that neither prior notification nor authorization is required.
74

Prior Notification Is not Part of the Territorial Sea Regime in LOSC 1982
The issue of prior notification was discussed and rejected throughout UNCLOS III. Prior notification appears 81 times in 51 Conference documents, including both Summary Records of the Plenary of the Conference and of the Second Committee (responsible for navigational issues) meetings. The term appears 16 times in all of the Summary Records of the 2nd Committee meetings.

75

Chinese Practice
The head of the Chinese delegation stated
there were still shortcomings and even serious defects in the provisions of quite a few articles in the Convention. For example, the provisions on innocent passage through the territorial sea did not make clear the regime of passage of warships through the territorial sea.

76

Chinese Practice
When China ratified LOSC 1982 in 1996, it made the following statement:
The provisions of the UN Convention on the Law of the Sea concerning innocent passage through the territorial sea shall not prejudice the right of a coastal State to request, in accordance with its laws and regulations, a foreign State to obtain advance approval from or give prior notification to the coastal State for the passage of its warships through the territorial sea of the coastal State

77

Chinese Practice
Chinas 1992 Law on the Territorial Sea and the Contiguous Zone contains several important provisions on innocent passage.
Foreign ships for non-military purposes shall enjoy the right of innocent passage Foreign ships used for military purposes shall be subject to permission of the Chinese Government before entering the territorial sea Foreign submarines and other underwater vehicles, when passing through the territorial sea, shall navigate on the surface and show their flag oreign nuclear-powered ships and ships carrying nuclear, noxious or other dangerous substances, when passing through the territorial sea, must carry relevant documents and take special precautionary measures.

78

Chinese Practice
Reports about the implementation of Chinas requirement of prior permission are rare.
There is one media report: on 17 April 2001, Australia sent three warships to go through the Taiwan Strait. The Australian flotilla, having been asked to leave by the Chinese captain who accused them of breaching Chinas sea boundaries, refused to change their direction and continued through the strait. While the Australian side alleged that this act was undertaken quite properly and fully in accordance with international law, it was regarded by the Chinese as breach of Chinese laws and intrusion of Chinese waters.

Though it is not known where the Australian warships were exactly sailing, it was indicated that they were passing through Chinas territorial sea in the Taiwan Strait.

79

Innocent Passage-Uniform Rule?

Joint Statement on Uniform Interpretation of Rules of International Law Governing Innocent Passage issued by the Soviet Union and the US in 1989. According to it, all ships, including warships, regardless of cargo, armament or means of propulsion, enjoy the right of innocent passage through the territorial sea in accordance with international law, for which neither prior notification nor authorization is required. Reach a similar agreement with China?

80

IMPORTANCE OF THE CONCEPT INNOCENT PASSAGE

SOVEREIGNTY OF THE COASTAL STATE (Article 2) First Restriction The coastal state may only adopt laws as given in Article 21 Second Restriction The coastal state may not regulate the design. Construction, manning or equipment of foreign vessels (Article 21 Paragraph 2), but my implement other pollution measures (Article 194, Subparagraph 3(b) Third Restriction Coastal state is to make public all applicable laws (Article 21, Paragraph 3) and any dangers to navigation(Article 24, Paragraph 2) Fourth Restriction Regulations may not be adopted for the purpose of or have the effect of hampering innocent passage (Article 24, Subparagraph 1(a) Fifth Restriction Coastal state is to abstain in form or fact- from discriminatory measures against any ship (Article 24, Subparagraph 1(b) RIGHT OF INNOCENT PASSAGE (Article 17) First Restriction Vessel must be in passage, continuous and expeditious (Article 18) Second Restriction A certain number of activities and activities not having a direct bearing on passage or not regarded as innocent (Article 19) Third Restriction Coastal state may adopt regulations in the areas enumerated in Article 21 (Article 211, Paragraph 4, pollution; Article 260 Safety Zones) Fourth Restriction Coastal state may establish sea lanes and traffic separation schemes (Article 22) Fifth Restriction Nuclear- powered ships and ships carrying dangerous materials must carry documents and take established precautions (Article 23) Sixth Restriction Temporary suspension of passage in specific areas must be accepted (Article 25, Paragraph 3)
81

CONTINUE

IMPORTANCE OF THE CONCEPT INNOCENT PASSAGE

Sixth Restriction Coastal state may is to exercise its jurisdiction in criminal and civil cases only as specified in Articles 27 and 28 Seventh Restriction Changes may not be levied by reason only of passage (Article 26, Paragraph1) Eighth Restriction -Warships and other government noncommercial vessels are immune (Article 32) -Coastal state required to allow these vessels passage if they comply with law and regulations of coastal state (Article 30) - If laws and regulations disregarded by these vessels, coastal state must request compliance before acting (Article 30) Seventh Restriction Coastal state may prevent passage which is not innocent (Article 25, Paragraph 1); may prevent breach of conditions for admission to its internal waters (Article 25, Paragraph 2) Eighth Restriction Arrest and investigation can take place as specified in Articles 27 and 28 (e.g.Art , 73; 220) Ninth Restriction Charges may be levied for specific services rendered (Art 26, Paragraph 2) Tenth Restriction Submarines must navigate on surface and show flag (Article 20) Eleventh Restriction Warships, etc, must upon request of coastal state leave territorial sea immediately -if they do not comply with laws and regulations - and have been requested to do so (Article 30)
82

THE RIGHT OF FOREIGN NATIONALS IN INTERNAL WATERS AND THE TERRITORIAL SEA

ACTIVITY
Navigation

INTERNAL WATERS
Convention not applicable except where establishment of baseline encloses new internal waters (Article 8, Paragraph 2)

TERRITORIAL SEA
Convention applicable with regard to -Innocent passage of merchant vessels -Innocent passage of warships (Articles 17-26,29-32)

Overflight Fishing

Convention not applicable Convention not applicable

Convention not applicable Convention not applicable

Scientific Research

Convention not applicable

Consent of coastal state required; conducted on conditions set by coastal state (Article 245) Convention not applicable

Laying submarine cable

Convention not applicable

Mining

Convention not applicable

Convention not applicable

Imposition of environmental legislation

Convention not applicable

Only by coastal state (Article 21, 192 and following): must not hamper innocent passage (Article 211, 83 Paragraph 4) Warships (Article 236)