Introduction and Background
Over
the years, there have been series of agreement and understandings dealing with
the sharing of the resources of the sea, its general usage and other
international worker. The law of the sea is not as rigorous or chequred as the
laws of non and aimed conflict but both have worked together to create a more
tranquil and more accessible international environment.
The
1979 UN convention on the law of the sea was the most comprehensive agreement
reached on the law of the sea. Its success was the result of decades of
conferences and actions on the issues which started long before the UN itself
was created. The laws of the sea again has its roots on the arguments of Hugo Grotims.
It was agreed that there ought to be freedom on the high seas and as such there
must be races guarding and preserving the existence of this freedom. These
agreements were based on the following principles:
1. The
high sea can never come under the sovereignty of one part in law state as
against what has been attempted in the past.
2. There
is absolute freedom of navigation on the high sea for vessels of all nations
whether worships or merchant ships.
3. In
general terms, no state may exercise jurisdiction over the ship on the high sea
which does not bear ha flag.
4. A
state may, as a general rule, exercise jurisdiction over a particular ship only
by virtue of the ship flying its national flag.
5. Every
state and her citizens are entitled to make use of the high sea for laying
submarine cables and oil pipelines for the conduct of fisheries and for
scientific and technological purposes.
6. There
is an absolute freedom of flight above international waters for all aircraft.
7. The
resources of the high sea belongs to all states, though not all states has the
capacity N one time to exploit the resources of the high seas.
Innocent and Non Innocent Passage
With the territorial sea, the state is supposed to
have exclusive territorial jurisdiction, but the right of passage for others
must be guaranteed. This is the right of free navigation through the
territorial sea of another state. This is called innocent passage when such
navigation is intended purely for the purpose of :
1. Entering
the sea without entering internal waters of calling of a road stead or ports
facilities outside international waters.
2. Proceeding
to or from international waters or a call at such roadstead or ports facility.
3. Innocent
passage exists as long as it sis not prejudicial to the peace, good order and
security of the coastal state.
The convention went ahead to identify what could
constitute a non-innocent passage. These include:
1. Any
threat or use of force against the sovereignty, territorial integrity or
political independence of the coastal state.
2. Any
exercise or practice with weapons of any kind.
3. Any
act aimed at collecting information to the prejudice of the defense or security
of the coastal state.
4. Any
act of propaganda aimed at affecting the defense or security of a coastal
state-acts of espionage.
5. Launching,
landing or taking on board of any aircraft intended for hostile purposes.
6. Launching,
landing or taking on board of any military device.
7. any
act of willful and serious pollution contrary to the rules of the convention.
8. Any
unauthorized fishing activity.
9. Any
act aimed at interfering with any system of communication or other facilities
of interest to the coastal state.
Jurisdiction over a Foreign Ship: The coastal state, with reference to criminal
jurisdiction, is not expected to extend its jurisdiction over passing ships,
the coastal state has some conditions over which it may want to extend its
criminal jurisdiction over a foreign ship which is supposed to be engaged in
non-innocent passage. The UN convention of 1958 provides that a state has the right to know whether a
passing ship is carrying any vacotics or psychotropic substances considered
injurious to the coastal state or which generally contravenes international law
if.
1. The
consequences of the crime extends to the coastal state.
2. The
crime is of such a kind that would disturb the peace and good order of the
coastal state
3. The
captain of the ship invites the authorities of the coastal state for whatever
reason
4. It
is necessary for the coastal state to intervene if order to stop illicit deal
or drug trafficking
5. It
violates the regulations of the coastal state in which care the coastal state
may request it to go back.
6. The
ship is engaged in illicit activity of any sort that constitutes a breath of
international laws.
The contiguous zone, straits and canal: the contiguous zone is a continuation of
the territorial waters of the coastal state. It may not extend beyond 24
nautical miles from the base line from which the breath of the sea is measured.
12 nautical miles is the agreed length of the territorial waters although some states may shorten it
but it must not go beyond 12 nautical miles
Straits- a strait is a piece of water between two
land areas. It is different from a canal. A strait is natural but a canal can
be manmade. Right of passage through a strait are similar to those of high
seas. Straits are not territorial water and cannot be divided by states. It
also cannot be appropriated.
Canal -canal is an artificial passage trench of
water purposely created by man. Right to passage is subject to the permission
of the coastal state or states which has control over the canal. Canals are
created for the purpose so commerce, military uses and other maritime
activities. The seek canal in Egypt is a good example
The Archipelagic State- This is a state constituted wholley by one or more
archipelagos, that is a group of islands and inter connecting waters and other
natural features which are so closely inter related that such islands and other
natural features form an intrinsic geographically economic and political entity
or which historically has been regarded as such. Some states may fall within
this definition but would opt not to declare themselves as such. This is the
case with Britain and Japan. All water within the state has sovereignty but
existing agreements, traditional fishing rights and existing submarine cables
must be respected. In addition, ships of all states shall enjoy the rights of
innocent passage through archipelagic waters and all ships and aircraft are to
enjoy a right of archipelagic sea lanes passage through such lanes and air
routes designated by the archipelagic state for continuous and expeditious
passage.
The exclusive economic zone (EEZ):
The exclusive economic zone is an area beyond and
adjacent to the territorial sea subject to the specific legal regime
established in the convention under which the rights and jurisdiction of the
coastal states and rights and freedom of other states are recognized. The eel
shall not extend beyond 200 nautical miles from the base lines from which the
breath of the territorial sea is measured. One of the major reason for the 200
miles exclusive economic zone was the controversy over fishing zones and the
exploitation of other sea resources.
The rights, jurisdiction and duties of coastal states over EEZ
Articles 55-57 of UNCLOS provides the following:
1. the
coastal state has sovereign right for the purpose of exploring and exploiting,
preserving and management the natural resources whether living or non living of
the waters separjacent to the sea bed and of the sea bed and its subsoil and
with regard to other activities for the economic exploitation and exploration
of the zone such as the production of energy from the water, current and winds.
2. the
coastal state has jurisdiction with reference to the establishment and use of
artificial islands installations and structures as well as conducting marine
and scientific research.
3. it
also protects and preserves the marine environment within 200 nautical airless
radius.
4. in
exercising this right, the coastal state shall have regard to the rights and
duties of other states.
5. conflicts
are to be resolved on the basis of
equity and in the light of all relevant circumstances.
In the Eez,
all states whether coastal or land locked enjoy the freedom of navigation and
over flight and of laying of submarine cables and pipelines and other
internationally lawful uses of the sea related to these freedoms such as these
associated with the operation of ships, aircrafts and submarines cables and
pipelines and compatible with the various provisions of the convention. These
are to be worked out through agreements.
In
exercising their rights and performing their duties in the EEZ, states shall
have due regard for the rights and duties of the coastal states and shall couly
with laws and regulations adopted by the coastal states in accordance with the
provisions of the convention.
Within
the EEZ, the coastal state is to have exclusive right to construct and
authorize or regulate the construction operation and use of artificial islands,
installations and structures provided for in the convention, relevant for
achieving economic purposes and also ensuring the exercise of right by other
states which will not interfere with the interest of the coastal states. The
coastal states may, where necessary, establish reasonable safety zones around
artificial islands, instillations and structures, and may take appropriate
measures to ensure the safety of navigation and of the artificial islands and
structures.
The conservation of living resources
In conserving the living resources of the
sea, the convention provides as follows:
1. Coastal
states shall determine the “allowable catch” of the living resources in its EEZ
2. The
coastal state, taking into account, the best scientific evidence available to
it shall ensure, through proper conservation and management, measures that the
maintenance of living resource in the EEZ is not enlarged by over exploitation.
3. Such
measures shall also be designed to maintain or restore population of the
harvested species of levels which can produce the maximum sustainable yields as
qualified by relevant environmental and economic factors including the economic
needs of coastal fishing communities and the special requirements of developing
states and taking into account fishing patterns, interdependence of stocks and
any generally recommended international maximum standards whether sub-regional,
regional, continental or universal.
Utilization of living resources in the EEZ
The coastal states shall promote the
objective or optimum utilization of the living resources in the EEZ. It shall
also determine its own capacity to harvest the resources of the EEZ. When the
coastal state does not have the capacity to harvest the entire allowable catch,
it shall through agreements or other arrangements give other states access to
the samples of the allowable catch having particular regard to the provision of
the conventions dealing with the right of land. Locked states and
geographically disadvantaged states.
In
giving access to other states to the EEZ. The coastal states shall take into
account all relevant factors including inter alia, the significance of the
resources of the area to the economy of the coastal state convened and its
other national interest as well as the interest of land locked and
geographically disadvantaged states in addition to the requirements of
developing states in the region in harvesting part of the surplus and the need
to minimize economic dislocation in states whose nationals have habitually
dished in the zone or which have made substantial efforts in research and
identification of stock.
The resources of the sea as a common human heritage:- This concept holds that the entire
resources of the sea belongs to the entire Humanity and that no state
irrespective of ability or geographical location should be denied the right to
benefit from this free gift of nature.
Under
the provisions of UNCLOS, land-locked states and geographical disadvantaged
areas are guaranteed that right to participate on an equitable basis in the
exploitation of an appropriate part of the surplus of the living resources of
the EEZ of coastal states of the same region or sub region. This must take into
account the relevant economic and geographical circumstances of all the states
conceived. The terms and modalities of such participation shall be established
by the states concerned through bilateral agreements. Further taking into
account such factors as
1. The
need to avoid effects detrimental to the fishing communities or fishing
industries of the coastal state.
2. The
extent to which the land locked states is participation or is entitled to
participate under existing agreements in the exploitation of living resources
of the EEZ of other coastal states.
The
right of land locked and geographically disadvantaged areas to benefit from the
resources of the sea is premised on the understanding that the resources of the
sea is a free gift if nature intended by God to serve the common good of all
humanity.
Land locked states
Land locked states are states that do not have direct access to the
sea. Such states cannot be denied the one of the sea. Article 3 or the 1950
Geneva convention on the High seas provided that states having no sea coast are
entitled to have free access to the sea in order to enjoy freedom of the seas
on equal terms with coastal states. Article 125 of the 1982 convention on the
law of the sea provided as follows:
1. Land –
locked states shall have the right of access to and from the sea for the
purpose of exercising the rights provided for in this convention including
those relting to the freedom of the high seas and the common heritage of
mankind. To this end,. Land-locked states shall enjoy freedom of transit
through the territory of transit states by all means of transport.
2. The
terms and modalities for exercising freedom of transit shall be agreed between
the land. Locked states and the transit state concerned through bilateral, sub
regional or regional agreements.
3. Transit
states, in the exercise of their full sovereignty ever their territory, shall
have the right to take all measures necessary to ensure that the rights and
facilities provided for in this part for land-locked states shall in no way
infringe their legitimate interests.
The
convention also provides that ships flying the flog of landlocked states shall
enjoy equal treatment with other foreign ships in narrative ports. Again, chips
of all states, whether coastal states or land locked states, have the right of
innocement passage in the territorial sea and freedom of navigation in the
waters beyond the territorial sea.
The
convention further noted that landlocked states have the right to participate
upon an equitable basis in the exploitation of an appriate part of the surplus
of the living resources of the economic zones of coastal states provided the
terms and modalities for such participation are worked out through bilaterate
or regional agreements.
The Principle of hot
pursuit
This involves going after a ship or pursuing a ship in
the high sea for violating the law of the sea or the law of the coastal state.
The principle of hot pursuit is a legal condition designed to ensure that a
vessel.
1. Which
has infringed the rules of a coastal state cannot escape punishment by fleeing
to the high seas. This mend that under certain conditions, a coastal state may
extend its jurisdiction onto the high sees in order to pursue a ship which is
suspected of committing a crime. Article III of the 1982 convention notes that
a hot pursuit many commence when the authorities of the coastal state have good
reasons to believe that the foreign ship has violated its laws. Hot pursuit
only beings when the pursuing ship hs satisfied itself that the ship being
pursued is within limits of the territorial sea of in the contiguous zone or
economic zone or the continental shelf. Before a pursuit begins, a visual or
auditory signed to stop must be given failure of which the pursuit may
commence. The pursuit commonly to undertaken by worships or military aircrafts
authorized by the government for such purpose. The pursuit must be
uninterrupted, that is it must remain a non stop, non interrupted exercise
until it fails o succeeds. The aim here is to avoid treachery. The right of hot
pursuit cease as soon as the ship being pursued enters the territorial waters
of its own state or that of another state. The Article further recommends that
in hot pursuit, care mush be taken to use minimum force in order to avoid
necessary casualties.
The high Seas
During
the 15th and 16th centuries, the closed sea concept was
proclaimed by Spain and Portugal dividing the seas of the world between the two
great powers. This proclamation was supported by the papal bulb of 1493. the
closed sea concept was replaced by the notion of the open seas and the
concomitant freedom of the high seas during the 18th century.
The
freedom of the high seas connotes that no state may acquire sovereignty over
the high seas or any part thereof. Te High seas were defined in article I of
the 1958 Geneva Convention on the High seas as all parts of the sea that were
not included in the territorial sea or in the internal waters of a state.
Article 87 of the 1982 convention provides that the
high seas are open to all state and that the freedom of the high seas is
exercised under the conditions laid down in the convention and by other rules
of international law. Such uses include the freedom of navigation, over flight,
the laying of submarine cables, pipelines, the construction of artificial
islands firing and scientific research, and other installations permitted under
interventional law.
The
1963 Nuclear Test Ban Treaty prohibited the testing of nuclear weapons on the
high seas although this has been
frequently violated by some states. Article 88 of the 1982 convection
provides that the high seas shall be reserved or peaceful purposes.
Piracy
The concept of piracy is a serious subject
under international law. It is also a very old problem involving armed robbery,
threats and dangers constituted by bandits
to civilian shipping and general commerce on the high seas according to
Article 15 of the 1958 conventions on the high seas, piracy consists of any of
the following acts6.
Any illegal acts of violence, detention or
any act of depredation, committed for private ends by the crew or the
passengers of aspirate ship or private aircraft and directed (a) on the high
seas against another ship or aircraft, persons or property in a place onside
the jurisdiction of any state.
2. Any
act of voluntary participation in the operation of a ship or of an aircraft
with knowledge of facts making it a pivate ship or aircraft.
3. any
act of inciting or intentionally facilitating an act described a piracy.
Article
15 of the 1958 convention provides that a pirate is subject to arrest, trial
and punishment by all states on the grand’s that he represents an enemy of
mankind. The vessel involved in privacy is subject to seizure as well as all
the property on board. The courts of the state carrying out the seizure have
jurisdiction to impose penalties, and may decide what action to take regarding
the ship or aircraft and property on board. It there are third parties acting in good faith, the rights of such
parties must be respected.
Privacy
by a work ship or aircraft or government ship or aircraft whose crew has mutinied
and taken control of the ship are equated to acts committed by private persons,
ship or aircraft words any hijacking or take over for political reasons is
excluded form the definition of piracy. Similarly, any acts committed on the
ship by the crew and aimed of the ship itself or property or persons on the
ship do not constitute piracy.
When
the seizure of ship or air craft on suspicion of piracy had been effected
without and equate grounds, the state making the seizure shall be liable to the
state, the nationality of which in possessed by the ship or aircraft for any
loss or damage caused by the seizure. The seizure on account of privacy may be
carried out only by warships or military aircrafts or other ships or aircrafts
clearly marked and identifiable as being on government service and authorised
to that effect.