Internal Water and Baseline 18 March 2013

7/28/2019 Internal Water and Baseline 18 March 2013

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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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Consists of :

Ports & Harbours

Lakes , Rivers & Canals




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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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Established straight baseline in accordance withthe method set forth under the Article 7 has the



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_waters


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INTERNAL WATERS


Consists of :

Ports & Harbours Lakes , Rivers & Canals



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.


Foreign vessels have no right of passage.


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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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Consists of :

Ports & Harbours

Lakes , Rivers & Canals




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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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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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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.
http://legal-dictionary.thefreedictionary.com/International+Lawhttp://legal-dictionary.thefreedictionary.com/International+Law


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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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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

Internal Water and Baseline 18 March 2013

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Transcript of Internal Water and Baseline 18 March 2013