PIL Report - Ramos
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The Federal Government of the United States and the State of California are trying to determine who owns and has jurisdiction over the subsoil, seabed of the continental shelf and the resources located therein along the California Gulf, and the question of the interpretation of the term used in the Submerged Lands Act with regards to “inland waters”. The Act did not contain any definition for the term “inland waters”.
US v. California
Gulf of California (highlighted)
Ruling:◦ The Court decided, with regards to jurisdiction
that, beyond three miles seawards of the coastline, it is owned and under the exclusive jurisdiction of the Federal Government, but with regards to what is within the three mile coastline or what is known as Tidelands, its is owned and under the exclusive jurisdiction of the State of California.
◦ For determining the definition of the term “inland waters”, as used in the Submerged Land Act, the Court ruled that, since the Congress did not give a definition to “inland waters” and pursuant to jurisprudence, the definition of “inland waters” provided for in the International Convention on the Territorial Sea and Contiguous Zone is the best and most workable. . . available," and adopted them for the purposes of the Submerged Lands Act.to wit:
◦ “Inland Waters” (Par. 2[b] Convention on the Territorial Sea and the Contiguous Zone) waters landward of the baseline of the territorial sea and includes: Any river or stream flowing directly into the sea,
landward of a straight line across its mouth; Any port, landward of its outermost permanent
harbor works and a straight line across its entrance; Any “historic bay”, as that term is used in paragraph
6 of Article 7 of the Convention, defined essentially as a bay over which the United States has traditionally asserted and maintained dominion with the acquiesence of foreign nations;
Semi Circle Test: Any other bay landward of a straight line across its entrance or, if the entrance is more than 24 geographical miles wide, landward of a straight line not over 24 geographical miles long, drawn within the bay so as to enclose the greatest possible amount of water. An estuary of a river is treated in the same way as a bay.
Similar case to US v. California, on the interpretation of the term “inland waters” In this case The Federal Government of the United States argues that the definition of the term in question should be that of the ICTS, State of Louisiana argues that the definition to be followed should be that of the “Inland Water Line” fixed by the Commandant of the Coast Guard in 1985.
US v. Louisiana
Ruling:◦ The Court sustained the adoption of the definition
of the ICTS regarding the questioned term, as ruled in the case of US v. California as it follows: “the line of ordinary low water along the portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.”
Used for international navigation between parts of the highs seas or an EEZ and another part of the high seas or an EEZ
Transit passage is allowed, provided they proceed without delay and without threat to bordering states. It is the exercise of the freedoms of navigation and overflight solely for the purpose of expeditious and continuous transit.
Facts:◦ A squadron of British warships, the Cruisers
Mauritius and Leander, and the destroyers Saumarez and Volage, left the port of Corfu and proceeded though a channel previously swept for mines, the North Corfu Strait. Several ships struck mines and caused damage to the ships and loss of life. UK sued People’s Republic of Albania.
Corfu Channel Case, ICJ Reports, 1949
North Corfu Strait
Issue:◦ Whether or not Albania should be liable.
Ruling:◦ Yes, pursuant to Part III, Section 44 of the
UNCLOS, re the duties of States bordering Straits, States bordering straits shall not hamper transit passage and shall give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge. There shall be no suspension of transit passage.
◦ The North Corfu Strait, where the ships passed and were damaged, being a strait allows other states the right of Innocent Passage, a right which is recognized by International Law.
◦ It is the incumbent obligation of the bordering state, Albania, to notify for shipping in general, the existence of the minefield in its territorial waters.
Part IV, Art 49 of the UNCLOS discusses the Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil◦ The sovereignty of an archipelagic State extends
to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast.
◦ This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein.
◦ This sovereignty is exercised subject to this Part. (pertains to PART IV of the UNCLOS)
◦ The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein.
Part IV, Art 52 of the UNCLOS discusses the Right of Innocent Passage◦ Subject to article 53 and without prejudice to
article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3.
◦ Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3.
Part IV, Art 53 of the UNCLOS discusses the Right of Archipelagic Sea Lanes Passage◦ An archipelagic State may designate sea lanes
and air routes there above, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.
◦ All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.
◦ Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.
◦ Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the nearest points on islands bordering the sea lane.
◦ An archipelagic State which designates sea lanes under this article may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes.
◦ An archipelagic State may, when circumstances require, after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by it.
◦ Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations.
◦ In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them.
◦ The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation schemes designated or prescribed by it on charts to which due publicity shall be given.
◦ Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this article.
◦ If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation.
THE CONTIGUOS ZONE
Area of water not exceeding 24 nautical miles from the baseline.
Extends 12 nautical miles from the edge of the territorial sea.
Coastal state exercises authority over the area to the extent necessary to prevent infringement of its customs, fiscal immigration, or sanitation authority over its territorial waters or territory and to punish such infringement
The Contiguous Zone
Part II, Art 33 of the UNCLOS discusses the Contiguous Zone◦ In a zone contiguous to its territorial sea, described as
the contiguous zone, the coastal State may exercise the control necessary to:
◦ (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;
◦ (b) punish infringement of the above laws and regulations committed within its territory or territorial sea.
◦ The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.
Part VI, Art 76 of the UNCLOS discusses the Definition of the Continental Shelf◦ The continental shelf of a coastal State comprises
the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.
◦ 1. The continental shelf of a coastal State shall not extend beyond the limits provided for in paragraphs 4 to 6.
◦ 2. The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.
◦ 4. (a) For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either: (i) a line delineated in accordance with paragraph 7
by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or
(ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope.
◦ (b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base.
◦ 5. The fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres.
◦ 6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural
This is the first instance of continental shelf before any court. This case is concerned with the delimitation of the continental shelf in the north sea, which involved Denmark, the Netherlands, and Germany. Denmark and the Netherlands both wanted to apply the equidistance principle, while Germany opposed as it would disproportionately reduce its area, due to the concave German Coastline.
North Sea Continental Shelf Case, ICJ Reports, 1969
◦ In the book written by Keith Highet, an American Lawyer who handled the most cases before the International Court Of Justice, the elaboration of the ICJ with regards to the continental shelf in this case is about the “natural prolongation principle” (NPC for brevity).(Keith Highet)
◦ NPC – natural prolongation or continuation of land territory or domain or land sovereignty of the coastal state, into and under the high seas, via the bed of its territorial sea which is under full sovereignty of the coastal sea. (Prof. Harry Roque)
◦ Criteria Considered in determining the Continental Shelf Geology – an area physically extending the territory
of a coastal state. Geography Unity of any deposits – natural resources found
therein Reasonable degree of proportionality – delimitation
of continental shelf may cause irregularities due to the geomorphology of the coastal state. The choice and application of the appropriate technical methods would be a matter for the parties.
◦ The Mediterranean is bordered by Tunisia (east), Italy (north), Greece (west), and Libya (south). Malta is a group of islands situated in the Mediterranean south of Italy. The coast of Libya is significantly larger that that of Malta. Hence this case was brought to the ICJ for the delimitation of the continental shelf between Libya and Malta.
Libya v. Malta, ICJ Reports, 1985
Ruling:◦ The ICJ ruled this case finally disposing of with the
“natural prolongation principle”. The UNCLOS does not provide a strict process in delimiting the boundaries of a coastline. This principle is only to be made complementary.
◦ In the delimiting of boundaries, equitableness of result is primary. It must be affected by the application of equitable principles in all the relevant circumstances in order to achieve an equitable result.
◦ In delimiting the boundaries in this case these are the equitable factors considered: No refashioning of geography; Compensating for irregularities of nature; Non-encroachment by one State over the other by
natural prolongation; Respect due to all; and Although all States are equal before the law, “equity
does not necessarily imply equality”
◦ Factors not to be considered in the delimiting of boundaries: Landmass; Economic position of the parties; Security conditions; and The principle of equality.
Libya and Tunisia requested the ICJ to determine what principles and rules of International Law may be applied for the delimitation of the continental shelf appertaining to Libya and that of Tunisia. In this case the are to be delimited is a single continental shelf. Decide.
Tunisia v. Libya, ICJ Reports, 1982
◦ Since there is only one continental shelf appertaining to the natural prolongation of both states, the principle of natural prolongation cannot be used. The court proclaimed that the method of delimitation should be The Method of Half-effect. This method involves the drawing of two lines, one which gives full effect to the by the delimitation process used, and at the same time disregarding the island totally. Using the arguments of both states and the bathymetric measurement of the ocean floor, the ICJ derived the delimitation of the continental shelf.
Delimitation Through The Method of Half-Effect