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(..9..)
MARITIME LAW
QUESTION BANK.
2.
Explain maritime Law. Discuss various areas or zones of seas classified under
International Law.
3.
4.
Write a full note on the basic principles of Air law.
Explain the concept of Outer Space. What are the basic principles of Outer Space
Law?
5.
Write basic principles of ‘Air law’ and ‘Outer Space Law’.
Explain the concept of “Air law’. What are the basic principles of Air law?
Short Notes
6.
1. Five freedoms of air.
4. The basic principles of air law.
5. Basic principles of outer space law.
SYNOPSIS
I. Introduction –
First United Nations Conference on the Law of Sea 1958 –
II. Second United Nations Conference on Law of Seas 1960-
III. Convention on the Law of the Sea, 1982-
1) Territorial Sea –
i. Breadth of Territorial Sea –
ii. Archipelago-
iii. Rights of States over Territorial Sea–
iv. Rights of other States-
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2) Contiguous Zone –
3) Continental Shelf –
i. Definition of Continental Shelf –
ii. Rights of Continental States –
iii. Rights of the other states –
(4) Exclusive Economic Zone (EEZ)–
i. Breadth of EEZ –
ii. Rights of Coastal States over EEZ –
iii. Rights of other states over EEZ –
iv. Comparison between Continental Shelf and EEZ –
v. However, there are following differences between these two–
5) HIGH SEAS –
a) Freedom of the High Seas –
1) Freedom of Navigation –
2) Freedom of Fisheries –
3) Freedom to lay submarine cables and pipelines –
4) Freedom of over flight –
5) Freedom to construct artificial islands–
6) Freedom of Scientific Research-
7) Non-interference with the warships –
b) Limitations on the Freedom of High Seas –
1) Ship or Aircraft involved in Piracy –
2) Ship used for slave trade etc. –
3) Hot pursuit–
4) Search and Seizure of neutral states’ vessels –
5) Non transportation of Narcotic drugs–
6) No Pollution in high seas –
I. Introduction –
Like land, the sea is also important for the states for navigation, fishing, extraction
of minerals, and defence purposes.
However, as science and technology grew, the problems relating to claims on the
sea have also grown.
Some Conventions were negotiated on behalf of the General Assembly of the United
Nations to resolve and avoid such problems and to establish universal rules relating to the
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sea.
First United Nations Conference on the Law of Sea 1958 –
The General Assembly of the United Nations convened a Conference in 1958 in
Geneva to pass a resolution on the law of the sea. Eighty-two states attended the
Conference, which adopted four resolutions. However, there was no agreement as to the
length of the territorial sea.
II. Second United Nations Conference on Law of Seas 1960-
The second conference, called in 1960, was called to resolve the earlier points of
dispute. However, it also could not reach a conclusion as to the disputed points. The
conference also realised that the laws formulated in the earlier conference were inadequate.
During this period, the report of Arvid Pardo revealed that there was an enormous
amount of minerals in the sea. Technology and Science have also developed to extract
them. Therefore, earlier laws were found inadequate.
III. Convention on the Law of the Sea, 1982-
The third United Nations conference was called in 1973 to lay down the law
effectively and more comprehensively on the sea. The Conference had many sessions. In
its 11th Session in 1982, the Conference adopted a convention on the Law of the Sea. This
Convention was very important on the Law of Sea. The Convention on the Law of the Sea
1982 has 320 Articles. However, the convention was to become enforceable after one year
after its ratification by at least 60 States. Guyana was the 60th State that signed the
Convention in 1993, and the Convention became enforceable in 1994. The Convention was
so important that it became almost universal. It covered all aspects relating to the Law of
the Sea. It has codified all conventional rules. It has superseded all existing laws on the
Law of the Sea.
We will discuss some important concepts of the Law of the sea. The Law has divided
the sea into different zones. These different zones provide different rights to the adjacent
states and other states. We will discuss them as follows –
1) Territorial Sea –
This is also called a ‘Marine Belt’. The Territorial Sea is that part of the sea which
is adjacent to the coastal state. The state's sovereignty is confined not to the inland waters
but to seawater surrounding its coast. In other words, a ‘territorial sea’ is a length of sea
adjacent to a State's coast. ‘Territorial sea’ is the subject of the sovereignty of that state as
any other internal water. The Sovereignty of the state on the territorial sea includes
sovereignty on air space over the territorial sea, the sea bed beneath it and subsoil.
We will discuss some of the important concepts relating to the territorial sea as
follows–
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i. Breadth of Territorial Sea –
As already discussed, the state exercises complete sovereignty over the territorial
sea, similarly as it exercises sovereignty over its internal waters.
Conventionally, the limit of the territorial sea was three miles from the coastal
baseline. The baseline is the low-water line along the coast.
However, the 1982 Convention laid the limit of twelve nautical miles from the
baseline. Where the costs of two states are opposite or adjacent to each other, the states
may set a line of the territorial sea amongst themselves by agreement. Without such an
agreement, the territorial sea is the middle line of both states. It is the equidistance line
between the two States.
ii. Archipelago-
The ‘archipelago’ means a group of islands, including parts of islands,
interconnecting waters and other natural features which are so closely interrelated that such
islands, waters and other natural features form an intrinsic geographical, economic and
political entity or which historically have been regarded as such’.
In this case, a line is drawn by joining the outermost points of the outermost islands
and drying reefs of the archipelagos and may not exceed 100 nautical mails. However, up
to 3 per cent of the total number of the baseline, including any archipelago, may exceed
that length up to 125 nautical miles.
In ‘archipelagic water,’ the archipelagic State has sovereign power over its
territorial water like any other state.
iii. Rights of States over Territorial Sea–
The Sovereignty of the coastal state extends to the territorial sea. However, the right
of innocent passage and transit is available to other states. The coastal state has the
exclusive right to appropriate the natural products of the territorial sea, including the right
of fisheries and other resources of the sea bed and sub-soil, i.e. minerals, etc. The coastal
state can even enact Laws relating to the territorial sea and innocent passage therein. Such
laws may relate to the safety of navigation, regulation of maritime traffic, providing
navigational aids and facilities, protection of cables and pipelines, environmental control
of sea resources, preservation of the environment, control of pollution etc. The duty is to
cast on the passing ships not to hamper innocent passage of coastal state.
iv. Rights of other States-
As per Art. 14 of the 1958 Convention and Art. 17 of the 1982 Convention, Ships
of all states enjoy the right of innocent passage through the territorial sea. A coastal state
must provide and maintain the passage in a safe condition by erecting lighthouses and other
facilities for safe navigation. The coastal state cannot impose a toll, nor can it prevent or
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hamper innocent passage through the territorial sea in the time of peace. 1982 Convention
states that the “Passage is innocent” so long as it is not prejudicial to the coastal state's
peace, good order or security. The passage is not innocent if the ship practices activities
that threaten the sovereignty, territorial integrity or political independence of the coastal
state; the coastal state can take necessary steps to prevent such activities from the passing
ship.
There is no unanimity among states in granting innocent passage to warships. Indian
legal position is in consonance with 1982 convention. India passed the Maritime Zones Act
in 1976, i.e. before the 1982 Convention.
2) Contiguous Zone –
The Contiguous Zone is that part of the sea which is beyond and adjacent to the
territorial waters or the coastal waters of the coastal state. As per the Geneva Convention
of 1958, the limit of the contiguous zone is 24 nautical miles from the baselines from which
the breadth of the territorial sea is measured. However, the Geneva Convention 1982 has
made the concept of continuous zones ineffective. It has laid down the concept of an
Exclusive Economic Zone, which is more comprehensive than a continuous Zone.
3) Continental Shelf –
The Continental Shelf is the edge of a continent that lies under the ocean. It extends
from the coastline of a continent to a drop-off point called the ‘Shelf break’. In other words,
it refers to the submarine zone between the coast and the continental margin's outer edge.
Continental Shelf occupies 7 % of the area of the world’s oceans, but their economic
importance is significantly greater. Therefore, the Continental Shelf is of national
importance not just geographically but economically, socially and legally.
Due to technical advancements, the exploitation of natural resources became
possible. US President Truman first raised the concept of the Continental Shelf in 1945.
The concept found a legal place in the Geneva Convention of 1958. It was again modified
and articulated by the Geneva Convention of 1982.
i. Definition of Continental Shelf –
Geneva Convention of 1982 defines ‘Continental Shelf’ as the continental shelf of
a coastal state comprised-
(i) the sea bed and sub-soil 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
ii) 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.
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The definition takes care of two types of situations. States like Argentina and
Canada have large extensions of the Continental Shelf; they get the edge of the continental
margin. Those states that have no large submarine areas available get a minimum of 200
nautical miles of sea as the Continental Shelf.
After the Geneva Convention 1982, the first case decided by the International Court
ii. Rights of Continental States –
The Continental States have the following rights available to them-
1. The Continental State has sovereignty over the continental shelf for the purposes of
exploration and exploitation of natural resources.
If the coastal state cannot perform these activities, no other state can perform them
without the consent of that coastal state. However, the coastal state has no right to fish on
the continental shelf except that part which belongs to the Exclusive Economic Zone.
Thus, we may say that the coastal state has no complete sovereignty but is limited
in extracting natural resources. ‘Natural resources’ means that mineral and other resources
of the sea bed and sub-soil together with living organisms belonging to sedimentary species
(i.e. the organisms which, at the harvestable stage, either are immovable or under the sea
bed or are unable to move except in constant physical contact with the seabed or sub-soil).
However, those states that extract nonliving resources of the continental shelf
beyond 200 nautical miles from the baseline must make payments or contributions to the
International sea-bed authority.
iii. Rights of the other states –
All states have the right to lay submarine cables and pipelines on the continental
shelf. However, the consent of the Coastal State is necessary.
The Indian position regarding the continental shelf is consistent with the
International Convention on the Law of Sea, 1982. The provisions of the Maritime Zone
Act 1976, passed by India, are consistent with the provisions of the Geneva Convention,
1982.
(4) Exclusive Economic Zone (EEZ)–
The concept of an exclusive economic zone was first raised by Kenya in 1972. The
concept then found its place in the Geneva Convention of 1982. However, during this
period, the concept of an Exclusive Economic Zone has found an acceptable world.
i. Breadth of EEZ –
As per convention, the EEZ is an area beyond and adjacent to the territorial sea
1
1982 ICJ 18
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extending up to 200 nautical miles seaward from the coastal baselines from which the
breadth of the territorial sea is measured.
ii. Rights of Coastal States over EEZ –
As the name itself suggests, EEZ is limited to the exclusive economic functions of
the coastal states. Thus in the EEZ, the coastal states have sovereign rights for exploring
and exploiting, conserving and managing the natural resources, living and non-living
resources of the water superjacent to the sea-bed and its subsoil.
Thus, coastal states can use EEZ to produce energy from water currents and winds,
establish artificial islands, etc., and make laws, regulations, etc., for their management.
They may pass regulations to be complied with by other states. No other state can take
away these rights of a coastal state unless the state transfers these rights.
iii. Rights of other states over EEZ –
All States have freedom of Navigation and overflight over the EEZ. Other states
may lay submarine cables and pipelines and conduct marine scientific research in the EEZ.
iv. Comparison between Continental Shelf and EEZ –
There are some similarities between these two, viz. –
i) The Coastal states have sovereign rights under both these concepts with respect
to natural resources. It can extract and exploit natural resources; they can use the
Zones for economic benefits.
ii) In both these concepts, the Coastal States have the right to make laws and
regulations.
v. However, there are the following differences between these two–
1) As to declaration –
The right of the coastal state over its Continental shelf needs no proclamation,
whereas, with respect to EEZ, the Coastal State needs a proclamation of its right through
an instrument.
2) Breadth –
The breadth of the Continental Shelf may be more than 200 nautical miles; however,
the breadth of EEZ is not more than 200 nautical miles.
3) Continental Shelf is related to the depth of the water, whereas EEZ is related to the
distance of water.
4) As to the rights –
In Continental Shelf, the Sovereign rights cover the natural resources of Sea-bed
and Sub-Soil, whereas, in EEZ, the right covers the natural resources of the water
superjacent to the seabed.
5) Related with –
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Continental Shelf is exclusively related only to Continental Shelf, whereas EEZ is
related to the water distance.
6) The Continental Shelf extends to the living and non-living resources in the sea area,
while the EEZ mostly extends to the living resources.
6) HIGH SEAS –
Under the customary rule of International Law, ‘High Seas’ means that part of the
sea is not included in territorial waters.
According to Hague Grotius, no person can own the Sea. According to him, the sea
is not an article of merchandise; hence, it is not private property. The concept of the High
Sea found legal status in the Geneva Convention in 1956. Thereafter, it was thoroughly
revised in the Geneva Convention in 1982. The convention defines ‘High Seas’ as “all parts
of the sea that are not included in the –
i)
EEZ
ii)
iii)
iv)
In the territorial sea, or,
In the internal waters of a state, or
In the archipelagic waters of an archipelagic State,
-would constitute high seas.
a). Freedom of the High Seas –
As per the Geneva Convention on High Seas in 1958 and 1982, the following
freedoms are granted to all states as to High Seas, viz.–
1) Freedom of Navigation –
The freedom of Navigation is available to coastal and non-coastal (i.e., landlocked)
states. The state has jurisdiction over the ship whose flag it flies.
2) Freedom of Fisheries –
All states have the freedom to fish on the high seas; however, all states also have
the duty to take or cooperate with other states in taking measures to conserve living
resources on the high seas.
3) Freedom to lay submarine cables and pipelines –
All States have the right to lay submarine cables and pipelines on high seas.
However, the state has to ensure that already laid cables and pipelines of other states should
not be damaged.
4) Freedom of overflight –
All states have the right to fly over the high seas. However, other states can only
interfere with aircraft in flight over the high seas in follows exceptional circumstances–
i)
If the aircraft affects that state,
ii)
If any offence has been committed by or against one of its nationals in the flight.
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If the aircraft is flying against the security of that state.
If the aircraft commits beach of air safety regulations.
Prof. S.D. Bhosale
iii)
iv)
v)
If the interference is necessary to ensure the observance of its obligation under the
multipartite international agreement.
5) Freedom to construct artificial islands–
All states have the freedom to construct artificial islands and other installations
subject to some conditions imposed by part VI of the 1982 Geneva Convention on the High
Seas.
6) Freedom of Scientific Research-
All states have the freedom to conduct scientific research. However, this right is
subject to some conditions laid by the 1982 Geneva Convention.
7) Non-interference with the warships –
Warships on high seas have complete immunity from the jurisdiction of any state
except its own state, i.e. the state of which the flag flies.
b) Limitations on the Freedom of High Seas –
The Convention of 1958 and 1982 have laid down limitations on the freedom of
High Seas –
1) Ship or Aircraft involved in Piracy –
The convention permits the seizure of ships or aircraft involved in the act of piracy.
The convention is against the use of high seas for piracy.
2) Ship used for slave trade etc. –
Warships of all the states have the right to board foreign merchant ships if there is
reasonable ground for suspecting that the ship in question is engaged in piracy or slave
trade or that it is a disguised warship or a ship of the warship's nationality but flying a false
flag.
3) Hot pursuit–
States have the right to ‘hot pursuit’ of offending vessels even on high seas.
4) Search and Seizure of neutral states’ vessels –
A belligerent state is entitled to search any vessel of a neutral state. It can seize the
vessel if found violating neutrality.
5) Non-transportation of Narcotic drugs–
The convention mandates that the high seas should not be used for narcotic drugs.
6) No Pollution on high seas –
According to the convention, any state should not pollute the high seas. The right of
any vessel on high seas can be infringed for polluting high seas.
*******
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