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    Law of the Sea

    West Bengal

    IIT Kharagpur

    Rajiv Gandhi School of Intellectual Property Law

    Assistant Professor

    Dr. Raju KD

    1KDR/IIT KGP/RGSOIPL-2008

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    The oceans are the very foundation of human

    life...

    y The ocean is vast, covering 140 million square miles,some 72 per cent of the earth's surface.

    y most of the world's people live no more than 200 milesfrom the sea and relate closely to it.

    y The oceans had long been subject to the freedomof-the-seas doctrine - a principle put forth in the

    seventeenth century essentially limiting nationalrights and jurisdiction over the oceans to a narrowbelt of sea surrounding a nation's coastline.

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    Grotiusy 1. no ocean can be the property of a nation because it is

    impossible for any nation effectively to take it into

    possession by occupation.y Nature does not give a right to anybody to appropriate

    things that may be used by everybody and areexhaustible

    yopen sea is a res gentium or res extra commercium.

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    Historyy The dispute over who controls the oceans

    probably dates back to the days when the

    Egyptians first plied the Mediterranean inpapyrus rafts.

    y Over the years and centuries, countries large andsmall, possessing vast ocean-going fleets or small

    fishing flotillas, husbanding rich fishing groundsclose to shore or eyeing distant harvests, have allvied for the right to call long stretches of oceansand seas their own.

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    Historyy Conflicting claims, even extravagant ones, over the oceans were

    not new.

    y In 1494, two years after Christopher Columbus' first expedition to

    America, Pope Alexander VI met with representatives of two ofthe great maritime Powers of the day - Spain and Portugal - andneatly divided the Atlantic Ocean between them.

    y A Papal Bull gave Spain everything west of the line the Pope drewdown the Atlantic and Portugal everything east of it.

    y On that basis, the Pacific and the Gulf of Mexico wereacknowledged as Spain's, while Portugal was given the SouthAtlantic and the Indian Ocean.

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    18th century: Cannon Shot Theoryy In the eighteenth century, the so-called "cannon-shot" rule

    gained wide acceptance in Europe.

    y

    Coastal States were to exercise dominion over theirterritorial seas as far as projectiles could be fired from acannon based on the shore.

    y According to some scholars, in the eighteenth century therange of land-based cannons was approximately one

    marine league, or 3 nautical miles.

    y It is believed that on the basis of this formula developedthe traditional three-mile territorial sea limit.

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    1702y Bynkershoek: published a book Essay on Sovereignty

    or the Sea.

    y Territorial state could only dominate such width ofcoastal waters as lay within the range of cannon shotfrom shore batteries.

    y 19th century 3 mile limit received widespread

    recognition by jurists.y US and UK proponents of this theory.

    y But failed to get acceptance.

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    Hot pursuity If any ship violates the laws and regulations of a

    maritime state, the ship might be pursued

    immediately before leaving the maritime belt of thatcountry.

    y Sufficient auditory signal should be given to theforeign vessel to stop.

    yThe arrest of personnel and the ship must be made

    within the territorial waters.

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    Challengesy twentieth century, by mid-century there was an

    impetus to extend national claims over offshore

    resources.y In 1945, President Harry S. Truman, responding in part

    to pressure from domestic oil interests, unilaterallyextended United States jurisdiction over all natural

    resources on that nation's continental shelf - oil, gas,minerals, etc.

    y This was the first major challenge to the freedom-of-the-seas doctrine.

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    Territorial claimsy In October 1946, Argentina claimed its shelf and the

    continental sea above it.

    yChile and Peru in 1947, and Ecuador in 1950, assertedsovereign rights over a 200-mile zone, hoping therebyto limit the access of distant-water fishing fleets and tocontrol the depletion of fish stocks in their adjacent

    seas.y Geneva Convention of 1958 on the Territorial Sea and

    Contiguous Zone - sovereignty of the territorial state right of innocent passage.

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    Territorial claimsy Soon after the Second World War, Egypt, Ethiopia, Saudi

    Arabia, Libya, Venezuela and some Eastern Europeancountries laid claim to a 12-mile territorial sea, thus clearlydeparting from the traditional three-mile limit.

    y Later, the archipelagic nation of Indonesia asserted theright to dominion over the water that separated its 13,000islands.

    y The Philippines did likewise. In 1970, Canada asserted theright to regulate navigation in an area extending for 100miles from its shores in order to protect Arctic wateragainst pollution.

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    Oil explorationsy In the late 1960s, oil exploration was moving further

    and further from land, deeper and deeper into the

    bedrock of continental margins.y Beginning in 1947 in the Gulf of Mexico, offshore oil

    production, still less than a million tons in 1954, hadgrown to close to 400 million tons.

    y

    Oil drilling equipment was already going as far as4,000 metres below the ocean surface.

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    Oily Offshore oil was the centre of attraction in the North

    Sea.

    yBritain, Denmark and Germany were in conflict as tohow to carve up the continental shelf, with its rich oilresources.

    y In the 1960s oceans were generating a multitude of

    claims, counterclaims and sovereignty disputes.y By the late 1960s, a trend to a 12-mile territorial sea had

    gradually emerged throughout the world.

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    Initiativesy On 1 November 1967, Malta's Ambassador to the

    United Nations, Arvid Pardo in an address to the

    General Assembly call for "an effective internationalregime over the seabed and the ocean floor beyond aclearly defined national jurisdiction".

    y A Conference was convened in New York in 1973.

    y

    United Nations Convention on the Law of the Sea 1982concluded.

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    Freedom of the high seasy Conflicting claims of the open sea.

    y 1982 United Nations Convention on the Law of the

    Sea, which has gained nearly universal acceptancesince its entry into force on 16 November 1994.

    y Sovereignty of the costal state extends to the seabedand subsoil of the territorial sea and the airspace over

    it.y As the work of the Conference progressed, the move

    towards a 12-mile territorial sea gained wider andeventually universal acceptance.

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    Law of the Sea Convention, 1982y Setting Limits

    y Navigation

    y Exclusive Economic Zone

    y Continental Shelf

    y Deep Seabed Mining

    y The Exploitation Regime

    y Technological Prospects

    y The Question of Universal Participation in the

    Convention

    y Pioneer Investors

    y Protection of the Marine Environment

    y Marine Scientific Research

    y Settlement of Disputes

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    y

    Navigational rights,y territorial sea limits,

    y economicjurisdiction,

    y legal status of resources on theseabed beyond thelimits of national

    jurisdiction,y passage of ships

    through narrowstraits,

    y

    conservation andmanagement of livingmarine resources,

    y protection of the marineenvironment,

    y a marine researchregime and,

    y a more unique feature,

    y a binding procedure for

    settlement of disputesbetween States - theseare among theimportant features of

    the treatyKDR/IIT KGP/RGSOIPL-2008 17

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    Conventiony TheConvention was adopted as a "Package deal",

    to be accepted as a whole in all its parts without

    reservation on any aspect.y TheConvention came into force on 16 November

    1994.

    y The right of landlocked countries of access to and

    from the sea is now stipulated unequivocally.y The right to conduct marine scientific research is

    now based on accepted principles and cannot beunreasonably denied.

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    Institutional systemy Already established and functioning are the

    International Seabed Authority, which organize

    and control activities in the deep seabed beyondnational jurisdiction with a view to administeringits resources;

    y as well as the International Tribunal for the Law

    of the Sea, which has competence to settle oceanrelated disputes arising from the application orinterpretation of theConvention.

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    Rightsy In addition to their right to enforce any law within their

    territorial seas, coastal States are also empowered to implementcertain rights in an area beyond the territorial sea, extending for

    24 nautical miles from their shores, for the purpose of preventingcertain violations and enforcing police powers.

    y This area, known as the "contiguous zone", may be used by acoast guard or its naval equivalent to pursue and, if necessary,arrest and detain suspected drug smugglers, illegal immigrantsand customs or tax evaders violating the laws of the coastal Statewithin its territory or the territorial sea.

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    Exclusive Economic Zoney it recognizes the right of coastal States to

    jurisdiction over the resources of some 38 million

    square nautical miles of ocean space.y To the coastal State falls the right to exploit,

    develop, manage and conserve all resources - fishor oil, gas or gravel, nodules or sulphur - to be

    found in the waters, on the ocean floor and in thesubsoil of an area extending 200 miles from itsshore.

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    Fishingy About 87 per cent of all known and estimated

    hydrocarbon reserves under the sea fall under

    some national jurisdiction as a result of EEZ.y The most lucrative fishing grounds too are

    predominantly the coastal waters.

    y The desire of coastal States to control the fish

    harvest in adjacent waters was a major drivingforce behind the creation of the EEZs.

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    Fishingy The special interest of coastal States in the

    conservation and management of fisheries in

    adjacent waters was first recognized in the 1958Convention on Fishing and Conservation of theLiving Resources of the High Seas.

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    Claimsy The claim for 200-mile offshore sovereignty made by

    Peru, Chile and Ecuador in the late 1940s and early1950s was sparked by their desire to protect fromforeign fishermen the rich waters of the HumboldtCurrent (more or less coinciding with the 200-mileoffshore belt.

    y This limit was incorporated in the Santiago

    Declaration of 1952 and reaffirmed by other LatinAmerican States joining the three in the Montevideoand Lima Declarations of 1970.

    y The idea of sovereignty over coastal-area resources

    continued to gain ground.KDR/IIT KGP/RGSOIPL-2008 24

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    Disputes and claimsy Between 1974 and 1979 alone there were some 20

    disputes over cod, anchovies or tuna and other

    species between, for example, the UnitedKingdom and Iceland, Morocco and Spain, andthe United States and Peru.

    y The Third United Nations Conference on the Law

    of the Sea was launched shortly after the October1973 Arab-Israeli war.

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    Oily Figures on known offshore oil reserves now range

    from 240 to 300 billion tons.

    y

    Production from these reserves amounted to alittle more than 25 per cent of total worldproduction in 1996.

    y Experts estimate that of the 150 countries with

    offshore jurisdiction, over 100, many of themdeveloping countries, have medium to excellentprospects of finding and developing new oil andnatural gas fields.

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    Dutiesy Convention encourages optimum use of fish

    stocks without risking depletion through

    overfishing.y Coastal States have certain other obligations,

    including the adoption of measures to preventand limit pollution and to facilitate marine

    scientific research in their EEZs.y Coastal States are obliged to give access to others,

    particularly neighbouring States and land-lockedcountries, to the surplus of the allowable catch.

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    Continental shelfy What should be the extent of a coastal State's

    jurisdiction over resources?

    y

    Where and how should the lines demarcatingtheir continental shelves be drawn?

    y How should these resources be exploited?

    y These were among the important questions facing

    lawyers, scientists and diplomats as theyassembled in New York in 1973 for the ThirdConference.

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    Sea bed and subsoily many States had started claiming wide continental-

    shelf jurisdiction since the Truman Proclamation of1945, these States did not use the term "continentalshelf" in the same sense. In fact, the expressionbecame no more than a convenient formula covering adiversity of titles or claims to the seabed and subsoiladjacent to the territorial seas of States.

    y In the mid-1950s the International Law Commissionmade a number of attempts to define the "continentalshelf" and coastal State jurisdiction over its resources.

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    Definitiony In 1958, the first United Nations Conference on the

    Law of the Sea accepted a definition adopted by the

    International Law Commission.y The continental shelf to include "the seabed and

    subsoil of the submarine areas adjacent to the coastbut outside the area of the territorial sea, to a depth of200 metres, or, beyond that limit, to where the depthof the superjacent waters admits of the exploitation ofthe natural resources of the said areas".

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    Continental Shelf

    International waters

    Delimitation

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    Base liney baseline from which the territorial sea is measured is

    the low-water line along the coast as marked on large-

    scale charts officially recognized by the coastal state.y This is either the low-water mark closest to the shore,

    y or alternatively it may be an unlimited distance frompermanently exposed land,

    y provided that some portion of elevations exposed atlow tide but covered at high tide (like mud flats) is

    within 12 nautical miles (22 km) of permanentlyexposed land.

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    Base liney Anglo Norwegian Fisheries Case, ICJ 1951.

    y Drawing baseline at some distance from the coastline

    of the littoral state concerned, breadth of the maritimebelt was to be measured, instead of the low-watermark constituting the linear edge of the maritime belt.

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    Territorial seay A state's territorial sea extends up to 12 nautical miles

    (22 km) from its baseline. If this would overlap withanother state's territorial sea, the border is taken as themedian point between the states' baselines.

    y Two recent conflicts occurred in the Gulf of Sidra where Libya has claimed the entire gulf as itsterritorial waters and the U.S. has twice violentlyenforced freedom of navigation rights (Gulf of Sidraincident (1981), Gulf of Sidra incident (1989)).

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    Contiguous Zoney A.33 costal state laws applied

    y The contiguous zone is a band of water extending

    from the outer edge of the territorial sea to up to24 nautical miles (44 km) from the baseline,

    y within which a state can exert limited control for thepurpose of preventing or punishing "infringement of

    its customs, fiscal, immigration or sanitary laws andregulations within its territory or territorial sea".

    y This will typically be 12 nautical miles (22 km).

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    Exclusive Economic Zoney An exclusive economic zone extends for 200 nautical miles

    (370 km) beyond the baselines of the territorial sea, thus itincludes the territorial sea and its contiguous zone.

    y A coastal nation has control of all economic resources within its exclusive economic zone, including fishing,mining, oil exploration, and any pollution of thoseresources. However, it cannot regulate or prohibit passage

    or loitering above, on, or under the surface of the sea,whether innocent or belligerent, within that portion of itsexclusive economic zone beyond its territorial sea.

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    Continental shelfy The continental shelf of a coastal nation extends out to

    its continental margin, but at least 200 nautical miles(370 km) from the baselines of its territorial sea.

    y It is the submerged bed of the sea, contiguous to thecontinental land mass.

    y General recognition by Geneva Convention of 1958 on

    the continental shelf.

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    Delimitationy There was a strong consensus in favour of extending

    coastal-State control over ocean resources out to 200 milesfrom shore so that the outer limit coincides with that of the

    EEZ.

    y It satisfied those nations with a broader shelf C about 30

    States, including Argentina, Australia, Canada, India,Madagascar, Mexico, Sri Lanka and France with respect to

    its overseas possessions C by giving them the possibility ofestablishing a boundary going out to 350 miles from theirshores or further, depending on certain geological criteria.

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    Continental shelfy the continental shelf of a coastal State comprises

    the seabed and its subsoil that extend beyond thelimits of its territorial sea throughout the naturalprolongation of its land territory to the outeredge of the continental margin,

    y or to a distance of 200 miles from the baselinesfrom which the territorial sea is measured, wherethe outer edge of the continental margin does notextend up to that distance.

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    1958 Conventionsy First UN Conference on the Law of the Sea at Geneva

    y 1. convention on Territorial Sea and the Contiguous

    Zone.y 2. Convention on High Seas.

    y 3. Convention on fishing and Conservation of theLiving Resources of the High Seas and

    y 4. the Convention on the Continental Shelf.

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    Deep Seabed Miningy On 13 March 1874, somewhere between Hawaii andTahiti, the crew of the British research vessel HMSChallengerhauled in from a depth of 15,600 feet atrawl containing the first known deposits ofmanganese nodules.

    y Analysis of the samples in 1891 showed the PacificOcean nodules to contain important metals,particularly nickel, copper and cobalt.

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    Common heritagey In 1970 the United Nations General Assembly

    declared the resources of the seabed beyond thelimits of national jurisdiction to be "the commonheritage of mankind".

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    Explorationy The developed countries took the view that the

    resources should be commercially exploited by miningcompanies in consortia and that an internationalauthority should grant licenses to those companies.

    y The developing countries objected to this view on thegrounds that the resource was unique and belonged tothe whole of mankind, and that the most appropriate

    way to benefit from it was for the internationalcommunity to establish a public enterprise to mine theinternational seabed area.

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    International Sea Bed Authorityy Agreement on Part XI to Law of the Sea

    convention, is administered by the InternationalSeabed Authority, headquartered in Jamaica.

    y The Authority is divided into three principalorgans, an Assembly, made up of all members ofthe Authority with power to set general policy, acouncil, with powers to make executive decisions,made up of 36 members elected from among themembers of the Authority, and a secretariatheaded by a secretary-general.

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    Protection of marine environmenty There are six main sources of ocean pollution

    addressed in the Convention: land-based and coastalactivities; continental-shelf drilling; potential seabedmining; ocean dumping; vessel-source pollution; andpollution from or through the atmosphere.

    y The Convention lays down, first of all, thefundamental obligation of all States to protect andpreserve the marine environment.

    y Coastal States are empowered to enforce their nationalstandards and anti-pollution measures within theirterritorial sea.

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    Conventionsy Two conventions adopted in 1969

    y 1. International Convention relating to Intervention on

    the High Seas in cases of Oil Pollution Causalities Intervention Convention

    y 2. International Convention on Civil Liability for OilPollution Damage. Liability Convention

    y

    1973 protocol Cases of Marine Pollution.

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    IMOy On the other hand, it is the duty of the "flag State", the

    State where a ship is registered and whose flag it flies,to enforce the rules adopted for the control of marinepollution from vessels, irrespective of where a violationoccurs.

    y This serves as a safeguard for the enforcement ofinternational rules, particularly in waters beyond thenational jurisdiction of the coastal State, i.e., on thehigh seas.

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    Settlement of disputesy The Convention on the Law of the Sea is unique in that the

    mechanism for the settlement of disputes is incorporatedinto the document, making it obligatory for parties to the

    Convention to go through the settlement procedure in caseof a dispute with another party.

    y Options: submission of the dispute to the InternationalTribunal for the Law of the Sea, adjudication by the

    International Court of Justice, submission to bindinginternational arbitration procedures or submission tospecial arbitration tribunals with expertise in specific typesof disputes.

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    1982 Conventiony 1. maintenance of international peace and security.

    y 2. universally accepted limits of territorial sea,

    contiguous zone, exclusive economic zone and on thecontinental shelf.

    y 3. freedom of navigation

    y 4. innocent and transit passage.

    y 5. conservation of optimum utilization of the livingresources of the sea.

    y 6. preservation of marine environment.

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    1982Law of the Sea Conventiony Marine scientific research.

    y Equitable balance between states.

    yPeaceful settlement of disputes.

    y Resources of the deep sea bed constituted the commonheritage of mankind.

    y Revenue sharing on the continental shelf beyond 200

    miles.

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    Conventiony 320 Articles

    y 17 parts

    y

    9 annexes

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    Thank you

    KDR/IIT KGP/RGSOIPL 2008 55


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