Public International Law
Lecture 5
The law of the sea
- In week 1: states exercise jurisdiction; this follows from the principle of sovereignty.
Confirmed by the Court in the case of week 1.
- The exercise of jurisdiction is not absolute. Limited by rules of PIL.
- Reason for limitation, is that the exercise may conflict with the sovereign rights of
another state. Within their territory and outside their territory.
- Nicaragua 212: Court established that states have an obligation to respect the
sovereignty of states.
- If states exercise jurisdiction within territory, they have to respect immunity and other
things from states.
- When jurisdiction outside territory, they have to respect sovereign rights of other
states.
- Limitation of exercise of jurisdiction is linked to sovereign rights of other states.
- But what if states exercise jurisdiction in area beyond jurisdiction? When there is no
conflict between sovereign states?
Exercise of jurisdiction at sea
- Some form of exercise jurisdiction at sea is allowed.
- Generally recognized, that no state may claim sovereignty over entire oceans.
- The seas as a matter of principle free for all mare liberum (= the free seas)
- Grotius justified the view of the Netherlands, who had just succeeded from Spain to
keep the oceans open for Dutch ships to travel around the world.
- This view has become the dominant view. Still is today.
- The oceans are free for all.
- Every state has the right to navigate over the oceans and to make use of the oceans.
- Subject to only a small limitation.
- In 17th century that coastal states exclusively exercise jurisdiction over small areas of
water just before the coast.
- Reason is also for security reasons.
- Coastal state could exercise effective control, because of the reach of the canons at
shore. Range of canons jurisdiction over waters before coast.
- For a long time the only rules that existed.
- After 1945: states had a clear reason to have jurisdiction for economic and security
purpose.
- Developed states claimed jurisdiction over part of continental shelf to exploit oil and
gas.
- Developing countries, eager to exercise jurisdiction to protect state against hostile
states, against colonization.
- New states also claimed that they had a right to the sea, and the oil and gas that could
be found here. These new states had been colonized for years. The claimed the right,
even though they lacked the capacity to practice this right.
- This led to codification.
Codification
- Multiple conferences were organized to discuss codification of the law of the sea, and
the limitations.
- In 1982 after the third UN diplomatic conference on the law of the seas treaty was
concluded. This treaty took 8 years.
United Nations convention on the law of the seas.
, - This is believed to be a codification of the CIL. Not every provision, but most reflecting
CIL.
- 168 states have become parties.
- How did the drafters reached compromise?
- They divided the oceans in maritime zones. They reflect the compromise between the
developed states (who wanted the seas as open as possible) – developing states (who
wanted to claim sovereign rights and jurisdiction as far as possible from their coast).
Maritime zones
- First establish from which point you have to measure maritime zones from the coast.
What is the baseline?
- Art. 5 UN Law of the seas: coastal states are allowed to use the low water line to start
any measurements. (de eb lijn)
- What if a coastal line is not so easy? For example when there are islands before the
coast? See art. 7: States are allowed to draw straight baselines.
- The NL has done that with the islands; drawn a straight base line north above the
islands. This means that the Waddenzee is part of the internal waters of NL. If the
impetrations are deep enough, they may be qualified as bays. (Art. 10)
Territorial sea
- Oldest maritime zone. Equivalent of the coastal waters.
- Every state has, under bases art. 2 and 3, the right to a territorial sea with a maximum
of 12 nautical miles.
- The coastal state exercise full territorial jurisdiction in those waters, on the basis of
their sovereignty. As if sea was part of the territory.
- This applies also on the air above the territorial sea.
- One limitation: the interest of the other seafaring states. A coastal state must respect
the right of all ships to navigate through its territorial sea, as long if this passage is
continuous, expeditious and for the purpose of traversing this territorial coast, or from
and to a haven The right of innocence passage (art. 17 and 18).
- Ports through the territorial sea to another maritime zone.
- Passage must be innocent = the passage may not be tenuous. The peace, good order,
and security of the coastal state, under bases of art 19. Any of the activities in art 19 are
considered to be not innocent. These activities would be subject to the jurisdiction of the
coastal state. Coastal state can take measures to prevent these activities.
- Art. 20: submarines (ships by military) must come to the surface in order to enjoy the
right of innocence passage.
- Even warships have the right to innocence passage, when not acting war activities.
- The right of innocence passage does not mean that coastal state may not impose rules.
Art. 21: the coastal state may prescribe specific rules. As long as these rules are not
discriminatory.
High seas
- The high sea and territorial sea are mutually exclusive. They cannot overlap.
- In the high sea no state has jurisdiction.
- All states enjoy full freedom.
- Art. 86-120.
- Rights that can be exercised with due regard of interest of other states (art. 87), include
the right of navigation to sail on the high seas (art. 90).
- Also right to lay pipelines. Important for oil and gas exploitation.
- States also exercise right on seas, must show due regard of the protection of the
environment. The living resources of the sea (art. 116-120).
Lecture 5
The law of the sea
- In week 1: states exercise jurisdiction; this follows from the principle of sovereignty.
Confirmed by the Court in the case of week 1.
- The exercise of jurisdiction is not absolute. Limited by rules of PIL.
- Reason for limitation, is that the exercise may conflict with the sovereign rights of
another state. Within their territory and outside their territory.
- Nicaragua 212: Court established that states have an obligation to respect the
sovereignty of states.
- If states exercise jurisdiction within territory, they have to respect immunity and other
things from states.
- When jurisdiction outside territory, they have to respect sovereign rights of other
states.
- Limitation of exercise of jurisdiction is linked to sovereign rights of other states.
- But what if states exercise jurisdiction in area beyond jurisdiction? When there is no
conflict between sovereign states?
Exercise of jurisdiction at sea
- Some form of exercise jurisdiction at sea is allowed.
- Generally recognized, that no state may claim sovereignty over entire oceans.
- The seas as a matter of principle free for all mare liberum (= the free seas)
- Grotius justified the view of the Netherlands, who had just succeeded from Spain to
keep the oceans open for Dutch ships to travel around the world.
- This view has become the dominant view. Still is today.
- The oceans are free for all.
- Every state has the right to navigate over the oceans and to make use of the oceans.
- Subject to only a small limitation.
- In 17th century that coastal states exclusively exercise jurisdiction over small areas of
water just before the coast.
- Reason is also for security reasons.
- Coastal state could exercise effective control, because of the reach of the canons at
shore. Range of canons jurisdiction over waters before coast.
- For a long time the only rules that existed.
- After 1945: states had a clear reason to have jurisdiction for economic and security
purpose.
- Developed states claimed jurisdiction over part of continental shelf to exploit oil and
gas.
- Developing countries, eager to exercise jurisdiction to protect state against hostile
states, against colonization.
- New states also claimed that they had a right to the sea, and the oil and gas that could
be found here. These new states had been colonized for years. The claimed the right,
even though they lacked the capacity to practice this right.
- This led to codification.
Codification
- Multiple conferences were organized to discuss codification of the law of the sea, and
the limitations.
- In 1982 after the third UN diplomatic conference on the law of the seas treaty was
concluded. This treaty took 8 years.
United Nations convention on the law of the seas.
, - This is believed to be a codification of the CIL. Not every provision, but most reflecting
CIL.
- 168 states have become parties.
- How did the drafters reached compromise?
- They divided the oceans in maritime zones. They reflect the compromise between the
developed states (who wanted the seas as open as possible) – developing states (who
wanted to claim sovereign rights and jurisdiction as far as possible from their coast).
Maritime zones
- First establish from which point you have to measure maritime zones from the coast.
What is the baseline?
- Art. 5 UN Law of the seas: coastal states are allowed to use the low water line to start
any measurements. (de eb lijn)
- What if a coastal line is not so easy? For example when there are islands before the
coast? See art. 7: States are allowed to draw straight baselines.
- The NL has done that with the islands; drawn a straight base line north above the
islands. This means that the Waddenzee is part of the internal waters of NL. If the
impetrations are deep enough, they may be qualified as bays. (Art. 10)
Territorial sea
- Oldest maritime zone. Equivalent of the coastal waters.
- Every state has, under bases art. 2 and 3, the right to a territorial sea with a maximum
of 12 nautical miles.
- The coastal state exercise full territorial jurisdiction in those waters, on the basis of
their sovereignty. As if sea was part of the territory.
- This applies also on the air above the territorial sea.
- One limitation: the interest of the other seafaring states. A coastal state must respect
the right of all ships to navigate through its territorial sea, as long if this passage is
continuous, expeditious and for the purpose of traversing this territorial coast, or from
and to a haven The right of innocence passage (art. 17 and 18).
- Ports through the territorial sea to another maritime zone.
- Passage must be innocent = the passage may not be tenuous. The peace, good order,
and security of the coastal state, under bases of art 19. Any of the activities in art 19 are
considered to be not innocent. These activities would be subject to the jurisdiction of the
coastal state. Coastal state can take measures to prevent these activities.
- Art. 20: submarines (ships by military) must come to the surface in order to enjoy the
right of innocence passage.
- Even warships have the right to innocence passage, when not acting war activities.
- The right of innocence passage does not mean that coastal state may not impose rules.
Art. 21: the coastal state may prescribe specific rules. As long as these rules are not
discriminatory.
High seas
- The high sea and territorial sea are mutually exclusive. They cannot overlap.
- In the high sea no state has jurisdiction.
- All states enjoy full freedom.
- Art. 86-120.
- Rights that can be exercised with due regard of interest of other states (art. 87), include
the right of navigation to sail on the high seas (art. 90).
- Also right to lay pipelines. Important for oil and gas exploitation.
- States also exercise right on seas, must show due regard of the protection of the
environment. The living resources of the sea (art. 116-120).
