Appunti di International Law of the Sea

International law of the sea

Introduction

The text of reference is the UNCLOS = United Nations Convention on the Law of the Sea. The international law of the sea establishes all the rules that a state has to follow in order to use the sea (exploit sea, use the sea and limit the use of it). Practice means that there were not written rules. Actions weren’t made with agreements with other countries (unilateral). Practice is called custom. Customary law is a law derived from this practice. These rules are not written in a code. After a while, they were put in a codification. The last important feature is that customary law binds all states; all of them accept these types of law. It’s different from a treaty, which is an agreement between certain states, not everyone. (N.B. Customary laws are not written. Treaty agreements and conventions are written laws.)

Customary laws are used for over centuries, many years. One of the most fascinating things is that it is one of the oldest branches of international law. The law of the sea is not just old but also dynamic, always evolving. They reflect classical and new aspects of international law: it refers to one of the oldest uses of the sea (navigation) but also to the most modern way to exploit the sea. The primary role is the regulation of space (division of the ocean into multiple zones of jurisdiction). The law of the sea tries to coordinate the interests of different states.

The secondary role: oceans are unique in a physical way; law and nature do not always correspond. The law of the sea ensures international cooperation. It tries to safeguard the interests of the international community as a whole. These two functions are not mutually exclusive. The balance between these two functions may change over time. From the early times, two principles were ruling the law of the sea:

• Sovereignty — represents the right of the coastal state to control the sea along its coasts.
• Freedom — applies to other states, to fishing, navigation, flights, construction of artificial islands, scientific research: all states are free to navigate, fish, etc.

They are opposite. Dupuy summarizes it: “The sea has always been lashed by two major contrary winds: the wind from the high seas towards the land is the wind of freedom; the wind from the land towards the high seas is the bearer of sovereignties. The law of the sea has always been in the middle between these conflicting forces.”

History

Pope Alexander VI decided to give to Spain all the lands behind a certain line drawn in the Atlantic Ocean. Spain was a maritime power. However, this was not welcomed by other countries, like Portugal, which reacted. An agreement was signed by these two countries (Treaty of Tordesillas) to move this line a little bit. But other countries reacted to this agreement, like the Netherlands.

Hugo Grotius, a Dutch jurist, was the first legal scholar to put on the basis for the freedom of the sea. He had to advocate to avenge the freedom of commerce. One day a Dutch squadron captured a Portuguese galleon, Santa Catarina, in the Strait of Singapore. They brought the galleon to Amsterdam. He said that the Dutch were right in capturing the galleon because it wasn’t a place exclusively Portuguese.

The idea of a closed sea is a way to describe the sea as an occupied zone. This is different from the idea of freedom. The first intergovernmental convention was in 1930, under the League of Nations (Società delle Nazioni). It was an attempt. The conference ended up failing.

The second attempt was made by the Continental Shelf. In 1958, the United Nations in Geneva committed to an international conference that was successful with four different conventions:

• Convention on the Territorial Sea and the Contiguous Zone
• Convention on the High Seas
• Convention on Fishing and the Conservation of the Living Resources of the High Seas
• Convention on the Continental Shelf

One key issue was about the maximum breadth of the territorial sea. In 1960, the Second Conference of the Law of the Sea: the US and Canada proposed a 6 miles limit, the proposal was defeated. The states decided to create different zones from high seas and territorial zones, without interference with freedom but with the possibility of exploitation (e.g., sea mining). Another important aspect was the protection of the marine environment, never considered before. In 1967, the Torrey Canyon disaster spilled tons of gallons of petrol, and the British tried to remove it by bombarding it.

During the Third UN Conference, one of the main characteristics was that it was more participated so the legitimacy of the process was respected. Ten years of work for the law. Each marine space must be connected to another sea or the ocean at least “by a narrow outlet” according to art. 122 UNCLOS (normally, a strait): there must be no physical separation between marine spaces. That's why the Caspian Sea is not ruled by the law of the sea; we apply customary law because it’s not connected to the ocean. The ocean in a legal sense is divided into:

• Subsoil and seabed
• Water column
• Air above the sea

Coastal State (a state that extends control over a territorial sea) and flag state (same as the flag of a vessel) are different. Marine spaces can be divided into two categories:

1. Under national jurisdiction further divided into: a) sea ruled by territorial sovereignty (Territorial Sea), like Straits and b) Marine spaces where coastal states exercise sovereign rights (sea rule by a less of a sovereignty) like the seabed and subsoil of the territorial sea;
2. Beyond national jurisdiction: the Area (subsoil and seabed) and high seas.

The coastal state is the one who exercises territorial sovereignty which is complete (comprehensive of legislative, enforcement, and judicial power) and exclusive. Only the coastal state can exercise territorial sovereignty. The second point is that they are spatial; they both consider legislative and enforced jurisdiction.

Internal waters

The first marine space is the internal waters: waters on the landward side of the baseline of the territorial sea form part of the internal waters of the state. There is always a line running parallel along the country that divides the internal water from the territorial sea. From this line, we measure the territorial sea. This line is called baseline. So internal waters are blocked by the territorial sea. Part IV is referred to the convention.

Archipelagic state represents an exception because the feature presents this peculiarity: the baseline is running all along the islands of the archipelago and is called the archipelagic baseline. If we look inside, there is a smaller baseline near an island and there are the internal waters. This baseline is behind the archipelagic waters. This is why this is an exception. In this specific case, internal waters are bound by the archipelagic waters, not the territorial sea. Internal waters do not include lakes, rivers because they are not connected to the ocean. Internal waters refer only to marine waters. The coastal state has territorial sovereignty over its internal waters. In the territorial sea, foreign vessels may exercise innocent passage, a right used if you only navigate in a territorial sea (no fishing, no doing any activities) (but a foreign vessel entering the internal waters has to ask permission from the state). For tourism, there are different regulations, so it is not required the permission. The important thing to consider is the activity that is made on the vessel: so if a sailboat is used for scientific research then it has to follow these rules. Archipelagic waters have their own regime.

From the archipelagic baseline, you start to measure the territorial sea, not from internal waters. The regime for the archipelagic waters is different, because it is not the territorial sea. If we have a coast and a straight baseline (that it is an exception) drawn in the sea this type of situation is regulated in paragraph 2 of the same article. In this case, the new internal water obtained from the draw of the new baseline still can host the right of innocent passage. This is only possible if the zone considered as internal water wasn’t considered like this before. The right can’t be canceled by a unilateral decision made by a state.

Within internal waters, we encounter ports: they are under territorial sovereignty. The state may regulate the access to its ports. There is no right for foreign countries to enter ports, in customary law. For practical reasons, there is the presumption that ports are free to go (like for tourism activities). If the state didn’t say anything as a reciprocity between states they are considered free but this is no legal cause. In practice, sea communication would be very disturbed so they sign treaties of friendship between states in order to reduce the communication problems. Ports used for trading are freer to use because the World Trade Organization is promoting free access to ports for commercial reasons. But it is not uncommon that some types of ships, like nuclear-powered or any type dealing with dangerous types of substances, need permission in order to access ports (they may cause accidents). There is a convention, the convention of liability for operators of nuclear ships that can block the access to this type of ship. In practice, many states in the absence of treaties continue to refuse access to the vessels.

Even warships are restricted. Other types of restrictions are made in order to prevent pollution from vessels (art 211), are made for national security reasons (in order to defend because of strategic reasons, because of marine terrorism, ISPS court—made after an international convention in order to protect the life of people traveling by sea. This security court required that most ships involved in trade have an informatic recording system. If the system is present the ship gets a certificate. If a ship doesn’t present this certificate its access to ports may be denied for security reasons), restriction to combat IUU fishing (Illegal Unreported and Unregulated Fishing = made by FAO in order to combat this problem). Several multilateral treaties regulating fishing establish port restriction to those vessels which fail to have fishing regulation. If the coastal state is a part of the treaty it can deny the possibilities of the landing of cargo from the vessels.

If there is a need for a foreign vessel to enter, because there is a danger if the situation is of immediate danger it applies the Eleonor case, decided in 1809 (Lord Stowell, an English judge had to establish the elements of distress) which has different criteria:

• Distress must be urgent and something of grave necessity
• There must be at least a moral necessity
• It must not be a distress that the ship claiming distress has created itself
• The distress must be proved by the claimant in a clear and satisfactory manner

Nowadays it is not applied like this because it is always a moral necessity and the help is given even if the distress is the fault of the vessel in distress. Today the international convention on maritime search and rescue proposed the concept of distress phase: “a situation wherein there is a reasonable certainty that a vessel or a person is threatened by grave and imminent danger and requires immediate assistance”.

If there is a ship in distress customary law recognized a right of the ship to enter the port. When the ship enters the port it gets immunity from local laws. This is because the vessel did not intend to be there, it is not voluntary. The immunity applies to the arrest of the vessel, local health, criminal (certain types of crimes) and tax laws and public charges potentially applicable for the entry into the port. It is also exempted from certain rules regulating marine pollution (if you read articles 218 and 220 it says voluntary, but in this case, this is not voluntary). The reason in this case is force majeure. Force majeure may vary (flood, natural disasters, human-caused, like war, etc.), but in order to be called like this, it has to have elements of:

• Externality (the event must not be caused by the claimant)
• Unpredictability
• Irresistibility

It does not consider negligence. Some events may be borderline. If a ship is used for something illegal, like slave trade, it can’t get immunity.

A case that is interesting is the one that led to environmental accidents. In this case, if the ship in distress is the cause of the environmental hazard the coastal state may say no to the access (because it would not threaten its environment). The 2003 IMO guidelines say that: “where permission to access a place of refuge is requested, there is no obligation for the coastal state to grant it, but the coastal state should weigh all the factors and risks in a balanced manner and give shelter whenever reasonably possible”, written after many accidents causing pollution problems and after many states refuse access to broken ships. The guidelines are not mandatory and are not helpful but they are the expressions of the will of the states. There is the obligation to rescue the crew of these types of vessels indeed. (After the convention to protect the life of people traveling by sea, see above). This is an example of a legal gap. The right of entry for vessels in distress shouldn’t represent a danger for the state but if we read the article 195: the example of the prestige may fall into the first point of this article. So helping these types of vessels may be against the rules stated in UNCLOS. The EU required member states to draw plans in order to accommodate ships in distress in order to prevent these types of problems.

In a situation where happens something on board of a ship that both refers to coastal state and flag state do we have to apply laws of the coastal state or the ones of the flag state? It is important to understand if the event is relevant only for the crew, so the flag state, or if it is also relevant for the coastal state. If the vessel voluntarily enters the port of the coastal state then it is under the laws of the coastal state. Every foreign ship including warships when they are in ports or internal waters they must follow laws of the coastal state. The coastal state may renounce to this right if there is reciprocity between the countries.

If the issue between two members of the crew is private then the laws applied are the ones of the flag state. Criminal jurisdiction instead is regulated by a specific consular convention. The coastal state may decide to exercise its criminal jurisdiction if the interests of the coastal state are involved or if the peace of the state is in danger, or also if the captain required it, or if the event involved someone who is not a member of the crew, or if the offense is so serious that it requires imprisonment. Normally the rule is to leave it to the flag state but if an activity undermines the tranquility of the port then the coastal state may intervene.

An example is the Wildenhus case: a Belgian crew member on a Belgian ship killed a former Belgian crew member on the ship in an American port. USA arrests Wildenhus and took him to prison. Belgium wanted Wildenhus back invoking habeas corpus. It ends up with a convention, where it was proposed that: “every state is interested in the repression of crimes and offenses that may be committed in the ports of its territory, not only by the crewmembers of a foreign merchant vessel toward men not forming part of that crew, but even by crewmembers among themselves whenever the act is of a nature to compromise the tranquility of the port, or the intervention of the local authority is invoked, or the act constitutes a crime the gravity of which does not permit any nation to leave it unpunished... because that crime is in itself the most manifest as well as the most flagrant violation of the laws”. U.S. Supreme Court recalled the Jally case, which is the duty of every nation to respect in all parts of its territory. The sovereignty of the flag state is invoked when crimes disturb the peace of the ship, in other cases the coastal state can exercise its laws.

Foreign warships and government ships operated for non-commercial purposes (research vessels if they are controlled by the government, presidential ships, royal vessels, vessels transporting troops, coastguard, hospital ships, supply ships) in internal waters of the coastal state get sovereign immunity so are not under the jurisdiction of the coastal state. This is not the same for commercial ships. Even troops are under the immunity. The flag state always decides the character of the ship with a certificate provided by an officer of the flag state.

When a person seeks asylum aboard a foreign vessel while in ports it is debated whether politicum asylum may be granted: it is necessary to evaluate the situation. Only one case raises no doubts. Slaves on board shall be freed because slavery is prohibited (article 99 UNCLOS). Other cases raise more doubts:

• Major maritime powers idea: according to the UK when a person before boarding a ship has committed a crime in the country of departure, that person can’t be required asylum. EISLER Poland protested the arrest of a German national aboard a Polish vessel by British authorities. USA requested the arrest of this person for crimes he committed in the US. Eisler was a communist, he was charged with two trials but he was released on bail. Newsweek described him as the first red agent in the US. He had illegally escaped from New York City by hiding on a Polish vessel. Two days after the departure, the crew discovered him. Before the arrival of the ship, the US asked the UK to arrest him (they sent a warrant of arrest). The captain refused to surrender the fugitive because the prisoner had asked for asylum. British police forcibly took him from the ship and sent him to prison. A merchant ship in a port of a country falls under the jurisdiction of the coastal state. The British authorities then allowed Eisler to leave the UK.

In order to make these rules (pollution prevention, safety standards, etc.) more participated, the convention gives the coastal state the power to inspect the vessels while they are in its port. It can also arrest the vessels if severe violations are discovered (art 218). This goes against the jurisdiction of the flag state. If the pollution happens in another state (nor the flag state, nor the port state) no proceeding pursuant shall be instituted unless...