Post on 03-Apr-2018
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LEGAL REGIME -UNCLOS 1982
Internal Water
Territorial Sea
Contiguous Zone Continental Shelf
Exclusive Economic Zone
High Sea The Area
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INTERNAL WATERS
Inclusive of waters on the landward side of thebaseline 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, noright of passage, innocent or otherwise exists forforeign vessels in internal waters
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Sovereignty status
Total sovereignty over all waters on thelandward 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 andpassage allowed after positive clearconsent is given
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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.
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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 assuch.
In that situation a right of innocent passage asprovided by UNCLOS shall exist
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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
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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:
Sea landward of the baseline where
the State has full sovereign
authority
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INTERNAL WATERS
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Inclusive of waters on the landward side of thebaseline 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
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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 thelaw of the place to which it goes,
Unless
by the treaty or otherwise the two countries have
come to some different understanding or agreement.
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Waite C.J Decision
It would be beneficial if the local government wouldrefrain 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 belongedto
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.
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ABSOLUTE SOVEREIGNTY OF THE STATE
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Coastal States free to set laws, use anyresource.
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
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Article 8(2) LOSC 1982
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Established straight baseline in accordance withthe method set forth under the Article 7 has the
effect of enclosing as internal waters areas
which had not previously been considered assuch.
In that situation a right of innocent passage asprovided by UNCLOS shall exist :
historic title has to exist in order for the title to be
continued
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Modification
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Rights of access through treaty
(1923 Convention,1994 GATT,EC Treaties)
Rights of access for vessels in distress
Innocent passage [Article 8 (2)]
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Two modifications:
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Immunity from enforcement jurisdiction:
Vessels in ports of refugeWarships
Discretionary use of enforcement jurisdiction:
The state should only use it in matters that does notaffect the peace and good order of the port:
Certain serious crimes
When requested by master and consulateInvolves a non-crew memberTechnical, sanitarian, fiscal, custom legislation
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Jurisdiction II
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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
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BASELINE
18 MARCH 2013
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IMPORTANCE OF THE BASELINE
MAINLAND INTERNAL WATERS
Lakes, canals, rivers, ports and
other waters inside the baseline(Article 8)
BASELINETerritorial sea
(Article 3) Up to 12 nautical miles
Continental Shelf
(Article 76,
Paragraph 1)
Contiguous Zone
(Article 33) Up to 24 nautical miles
Exclusive Economic Zone
(Article 57)Up to 200 nautical miles
SEA
In exceptional circumstances
given in Article 76,
Paragraphs 3-6
Up to 350 nautical miles or not more
than 100 nautical miles from the
2,500 meter isobath depth line
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)
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 affectthe status as high seas
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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 anequitable result
for the ICJ in this case, the basic criteria used
in the delimitation process must be based ongeometrical methods
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STRAIGHT BASELINE
INDENTED COASTLINE & FRINGING ISLAND
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BASELINE
BASELINE
INDENTED COASTLINE FRINGING ISLANDS
STRAIGHT BASELINES
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SEMI-CIRCLE TEST
< or = 24NM ACROSSAREA BAY > AREA SEMI-CIRCLE
LEGAL BAYS
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MEDITERRANEAN SEA
LIBYA
TRIPOLI
BENGHAZI
100NM
32 DEG 30 MIN
GULF OF SIDRA
HISTORIC BAYS
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INTERNAL WATER
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International Law prespective
Internal waters
Waters landward of the baseline are defined asinternal 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 knownas "archipelagic waters" within the outermost islands
of an archipelagic state Indonesia or
Philippines.
http://en.wikipedia.org/wiki/Internal_watershttp://en.wikipedia.org/wiki/Internal_watershttp://en.wikipedia.org/wiki/Indonesiahttp://en.wikipedia.org/wiki/Philippineshttp://en.wikipedia.org/wiki/Philippineshttp://en.wikipedia.org/wiki/Indonesiahttp://en.wikipedia.org/wiki/Internal_waters7/28/2019 Internal Water and Baseline 18 March 2013
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INTERNAL WATERS
Inclusive of waters on the landward side of thebaseline 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, noright of passage, innocent or otherwise exists forforeign vessels in internal waters
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Internal waters
Covers all waters on the landward side ofthe baseline.
Coastal States free to set laws, use anyresource.
Foreign vessels have no right of passage.
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Article 8(2) LOSC 1982
Established straight baseline in accordance withthe method set forth under the Article 7 has the
effect of enclosing as internal waters areas
which had not previously been considered assuch.
In that situation a right of innocent passage asprovided by UNCLOS shall exist
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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:
Sea landward of the baseline where
the State has full sovereign
authority
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INTERNAL WATERS
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Inclusive of waters on the landward side of thebaseline 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
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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.
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Waite C.J Decision
It would be beneficial if the local government wouldrefrain 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.
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ABSOLUTE SOVEREIGNTY OF THE STATE
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Coastal States free to set laws, use anyresource.
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
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Article 8(2) LOSC 1982
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Established straight baseline in accordance withthe method set forth under the Article 7 has the
effect of enclosing as internal waters areas
which had not previously been considered assuch.
In that situation a right of innocent passage asprovided by UNCLOS shall exist :
historic title has to exist in order for the title to be
continued
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Modification
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Rights of access through treaty
(1923 Convention,1994 GATT,
EC Treaties) Rights of access for vessels in distress
Innocent passage [Article 8 (2)]
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Two modifications:
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Immunity from enforcement jurisdiction:
Vessels in ports of refugeWarships
Discretionary use of enforcement jurisdiction:
The state should only use it in matters that does notaffect the peace and good order of the port:
Certain serious crimes
When requested by master and consulateInvolves a non-crew memberTechnical, sanitarian, fiscal, custom legislation
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Jurisdiction II
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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
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TERRITORIAL WATERS
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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
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MALAYSIAS MARITIME ZONES
Internal Waters - 97,306.83 km2
37, 571 bn2
Territorial Waters - 63,665.53 km2
24,581.85 bn2
Continental Shelf - 476, 761.87 km2
184, 082.22 bn2
Exclusive Economic Zone - 453,186.18 km2
174, 979.43 bn2
Coastline - 4492 km
1737 km (Semenanjung)
2755 km (Sabah dan Sarawak)
Land and Sea Ratio - 1 : 2
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Geographical Location of Malaysia
Center of South East Asia and sea borders withIndonesia, Singapore, Thailand, Brunei, Vietnamand Philippines
4 major seas Straits of Malacca, South China,Sulu Sea and Celebes Sea + Strait of Johor
Sea lane of Communication (SLOC)Straits ofMalacca and South China Sea
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Notification of A New Map of the Continental Shelf of Malaysia,21 December 1929,
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MALAYSIA MARITIME JURISDICTION
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MALAYSIA MARITIME JURISDICTION
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LEGISLATIVE INSTRUMENTS
Continental Shelf Act1966
Proclamation of EEZ Act1980
EEZ Act1984
Fisheries Act1985
Petroleum Mining Act1966
Environmental Quality Act1974
Merchant Shipping Act1952
MMEA Act2004
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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
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Origin 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;
if the boundaries of a state are rivers or lakes or other inlandwaters, unless one of the riparian states has a good title to thewhole bed of the same, bounding non-navigable rivers to themiddle of such streams, bounding navigable rivers to the middleof their deepest channel, and bounding lakes and other inlandwaters 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 morethan two marine leagues apart
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Extent of territorial waters
Prior to LOSC 1982 Limits is not uniform
Limitation has some relation to the notion of effectivecontrol of a State
In 18th Century most State use 3 nm or cannon shotrule 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 12nm and more
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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,
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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 committedon foreign vessels in such waters to the states
to which such vessels belong
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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 ofthe country is disturbed.
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Modern Law of the sea
Begins with Truman Proclamation
Open sea or the High Sea are now subjected toownership 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 ofGuinea and the Indian ocean;
Venice claimed the Adriatic,
Genoa the Ligurian, and
Denmark the North seas.
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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 opensea, were general, and were maintained with
varying success
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Exclusive possession of open sea
The physical impossibility of obtaining andkeeping exclusive possession of any part of theopen sea, the growth of commerce and the
consequent recognition of the necessity of thefree navigation of the ocean, led to a contestbetween the advocates ofmare clausum andthose ofmare liberum, which was begun in
1609 by Grotius and John Shelden later.
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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 toregulate, police, and adjudicate the territorialwaters and the proprietary right to control andexploit natural resources in those waters andexclude others from them.
The legal status of territorial waters also extendsto the seabed and subsoil under them and to theairspace above them.
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Modern Definition
LOSC 1982
a belt of coastal water extending at most 12 nmfrom the baseline (usually the low-water mark) of acoastal state.
The territorial sea is regarded as the sovereignterritory of a state, although foreign sips ( bothmilitary and civilian) are allowed innocent passagethrough it
This sovereignty also extends to the airspace overand seabed below
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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, theborder is taken as the median line as the point between thestates 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
Australias maritime claim
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Australia s maritime claim
Australia claimsmaritime territorythroughout thesouthern hemisphere,greater than its landarea.
Blue Line : Territorialwaters
Green: 24-mile ContiguousZone
Orange: 200-mile EEZ
Blue: claimed ContinentalShelf Prolon ation
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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, sincethey are bounded by the nations land.
Therefore the term is usually used specifically in
reference to the ocean waters which surround the
nations coastline.
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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
TRANSIT PASSAGE
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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
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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
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Innocent Passage
The right of innocent passage is a well-
established rule and constitutes a part of the
territorial sea regime. However, while there is
a uniform State practice in innocent passagefor merchant ships, whether the right of
innocent passage should be accorded to
warships remains a controversial issue.
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Innocent Passage-LOS Convention
The LOS Convention, like the 1958 GenevaConvention, contains no provision thatexpressly allows or denies warships a right of
innocent passage. It stipulates only that shipsof all states enjoy the right of innocentpassage through the territorial sea, defininginnocent passage as transit that is not
prejudicial to the peace, good order orsecurity of the coastal state.
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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 non-
innocent passage
Coastal State can make laws and regulations regardinginnocent passages
What about joint statement of two agreeing state on
Innocent passage?
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Innocent Passage-State Practice
The Commanders Handbook on
the Law of Naval Operations lists
27 States which require priorpermission and 12 other require
prior notification.
P bl
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Problem
Jackson Hole Joint Statement on the
Law Governing Innocent PassageRules
1989 agreement by the USSR and US that their twogovernments are guided by UNCLOS.
Their uniform interpretation recognized that the relevantrules governing innocent passage of ships in theterritorial sea are stated in UNCLOS, and that neitherprior notification nor authorization is required.
Prior Notification Is not Part of
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the Territorial Sea Regime in LOSC 1982
The issue of prior notification was discussed and rejectedthroughout UNCLOS III.
Prior notification appears 81 times in 51 Conference
documents, including both Summary Records of the Plenaryof the Conference and of the Second Committee(responsible for navigational issues) meetings.
The term appears 16 times in all of the Summary Records ofthe 2nd Committee meetings.
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Chinese Practice
The head of the Chinese delegation stated there were still shortcomings and
even serious defects in the provisions of quite a fewarticles in the Convention.
For example, the provisions on innocent passagethrough the territorial sea did not make clear theregime of passage of warships through the territorialsea.
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Chinese Practice
When China ratified LOSC 1982 in 1996, it made thefollowing statement:
The provisions of the UN Convention on the Law of the Seaconcerning innocent passage through the territorial sea shall notprejudice the right of a coastal State to request, in accordancewith its laws and regulations,
a foreign State to obtain advance approval from or give priornotification to the coastal State for the passage of its warshipsthrough the territorial sea of the coastal State
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Chinese Practice
Chinas 1992 Law on the Territorial Sea and the ContiguousZone contains several important provisions on innocent
passage.
Foreign ships for non-military purposes shall enjoy the right of innocentpassage
Foreign ships used for military purposes shall be subject to permission ofthe Chinese Government before entering the territorial sea
Foreign submarines and other underwater vehicles, when passing throughthe territorial sea, shall navigate on the surface and show their flag
oreign nuclear-powered ships and ships carrying nuclear, noxious or otherdangerous substances, when passing through the territorial sea, must carryrelevant documents and take special precautionary measures.
h
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Chinese Practice
Reports about the implementation of Chinas requirement of priorpermission 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 themof breaching Chinas sea boundaries, refused to change their direction andcontinued through the strait.
While the Australian side alleged that this act was undertaken quite properlyand fully in accordance with international law, it was regarded by the Chineseas breach of Chinese laws and intrusion of Chinese waters.
Though it is not known where the Australian warships were exactly sailing, itwas indicated that they were passing through Chinas territorial sea in theTaiwan Strait.
f l ?
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Innocent Passage-Uniform Rule?
Joint Statement on Uniform Interpretation of Rulesof International Law Governing Innocent Passageissued by the Soviet Union and the US in 1989.
According to it, all ships, including warships,
regardless of cargo, armament or means ofpropulsion, enjoy the right of innocent passagethrough the territorial sea in accordance withinternational law, for which neither prior notificationnor authorization is required.
Reach a similar agreement with China?
IMPORTANCE OF THE CONCEPT INNOCENT PASSAGE
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SOVEREIGNTY OF THE COASTAL STATE
(Article 2)
RIGHT OF INNOCENT PASSAGE
(Article 17)First Restriction
The coastal state may only adopt laws as given in
Article 21Second 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 RestrictionCoastal 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)
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 andtake established precautions (Article 23)
Sixth Restriction
Temporary suspension of passage in specific
areas must be accepted (Article 25, Paragraph 3)
CONTINUE
IMPORTANCE OF THE CONCEPT INNOCENT PASSAGE
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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 non-
commercial 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)
THE RIGHT OF FOREIGN NATIONALS IN INTERNAL WATERS AND THE TERRITORIAL
SEA
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SEA
ACTIVITY INTERNAL WATERS TERRITORIAL SEA
Navigation Convention not applicable except
where establishment of baseline
encloses new internal waters (Article 8,
Paragraph 2)
Convention applicable with regard to
-Innocent passage of merchant vessels
-Innocent passage of warships
(Articles 17-26,29-32)
Overflight Convention not applicable Convention not applicable
Fishing 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)
Laying submarine cable Convention not applicable Convention not applicable
Mining Convention not applicable Convention not applicable