The International Law of the Sea

Tanaka, pp. 70-120; 123-150

MARINE SPACES UNDER NATIONAL JURISDICTION o The coastal State is the one who will determine if the above
situations exist
I. Internal Waters
- Unlike merchant ships, warships and other government ships
- Those waters which lie landward of the baseline from which the
operated for non-commercial purposes, as well as the members of
territorial sea is measured
the crew of these vessels, enjoy sovereign immunity
- This includes parts of the sea along the coast, ports and harbours,
B. Access to ports
estuaries, landward waters, and waters enclosed by straight
- Nicaragua case – It is by virtue of its sovereignty that the coastal State
baselines
may regulate access to its port.
- Generally, internal waters are bound by territorial seas EXCEPT in the
- One can say that there is no right of entry into ports of foreign States
case of archipelagic states which use the archipelagic waters as
in customary international law
boundaries of internal waters
o In fact, it is not uncommon that nuclear-powered ships and
- What is the legal status of these waters?
those carrying nuclear or noxious substances can only enter
o The State enjoys FULL sovereignty over internal waters and
a port after being granted permission
the right of innocent passage does not apply to
o Foreign warships have no automatic right of entry into
A. Jurisdiction over foreign vessels in internal waters
internal waters or ports without diplomatic clearance.
- Two positions:
- BUT, sea communications would be disturbed if there is no free
o Anglo-American position – coastal State has complete
access to ports. Thus, bilateral treaties of “Friendship, Commerce,
jurisdiction over foreign vessels in its ports but may refrain
and Navigation” confer the rights of entry to ports for foreign
from exercising such power over said vessels
merchant ships.
o French position – coastal State has no jurisdiction over purely
C. Ships in distress at sea
internal affairs of foreign vessels in its ports but if it is not
- Eleanor case outlined the 4 requirements for distress:
purely internal, the coastal State may exercise jurisdiction
o Distress must be urgent and something of grave necessity
- In modern practice, the scope of criminal jurisdiction of the coastal
o There must be at least a moral necessity
State is as follows:
o Must not be cause by the entity claiming distress
o Foreign ships are subject to the criminal jurisdiction of the
o Must be proved by the claimant in a clear and satisfactory
coastal State EXCEPT if it involves matters relating solely to
manner
internal discipline of the ship
- For humanitarian and safety reasons, any foreign vessel in distress
o State may exercise jurisdiction if (1) an offense on board the
has a right of entry into any foreign port under customary
ship is affects or likely affects the peace and order of the port,
international law
(2) intervention is requested by the captain or the consul of
o Enjoys immunity from local laws with regard to arrest of the
the flag State of the vessel, (3) involvement of non-crew
vessel, local health, criminal, and tax laws
members, (4) offence cause on board the ship is of serious
o Immunity also applies to charges levied for entry into the
character, (5) matters which do not concern solely the
port
internal economy of the ship (like pollution and pilotage)
o Also exempt for certain rules on marine pollution
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- In cases of accidents, the economic and health interests of a State’s
local community may be damaged. For this reason, it is probable that
coastal States will refuse to grant entry to ships in distress in order to
protect the environment
- M/V Toledo: This is not an absolute right. If safety of life is not a
factor, there is a widely recognized practice to have a proper regard
to their own interests and those of their citizens in deciding whether
or not to accede to the request
o Guidelines on Places of Refuge for Ships in Need of Assistance
by the International Maritime Organization – Where
permission to access a place of refuge is requested, there is
no obligation for the coastal State to grant it but the coastal
State should weigh all factors and risks and give shelter
whenever reasonably possible
- TANAKA: Right of entry into ports is a long-established ruled in CIL
BUT it is now debatable if there is widespread and uniform State
practice at this stage
o There is good reasons to argue that if safety of life is a factor,
State should not refuse entry
- TANAKA: When a ship in distress is sent out to see, the harm it could
do to the environment near the coast may still happen
o Erika and Prestige – two vessels denied entry into the ports
because of the risk they pose to the environment were
eventually destroyed at sea after being sent back out which
still caused substantial pollution to the offshore environment
II. TERRITORIAL SEA
A. Legal Status
- Territorial sea – marine space under the territorial sovereignty of the
coastal State up to a limit NOT exceeding 12 nautical miles measured
from the baselines
- Comprises the seabed and its subsoil, the adjacent waters, airspace.
- 12 nautical miles maximum breadth of the territorial sea is already
CIL but while the UNCLOS contains no rule on the minimum breadth,
no State has claimed less than three nautical miles in practice
- Grisbadara case (Norway v Sweden) – the maritime territory is an
essential appurtenance of land territory and an inseparable
appurtenance of this land territory
- Coastal State can exercise complete legislative and enforcement
jurisdiction over all matters and all people in an exclusive manner
unless international law provides otherwise (Art. 2(3) of the UNCLOS)
B. Right of innocent passage
- Twee Gebroeders case (1981) – the act of inoffensively passing over
such portions of water, without any violence committed there, is not
considered as any violation of territory belonging to a neutral state –
permission is not usually required
- The right of innocent passage is based on the freedom of navigation
as an essential means to accomplish freedom of trade
- Article 18(1) of the UNCLOS – innocent passage comprises lateral and
vertical passage
o Lateral passage – traversing the territorial sea without
entering the internal waters or calling at a roadstead or port
facility outside internal waters
o Vertical passage – passage proceeding to or from internal
waters or roadstead or port facility
- The UNCLOS contains several rules concerning the manner of
innocent passage through territorial sea
o Passage must be continuous and expeditious – stopping and
anchoring is only allowed insofar as incidental to ordinary
navigation or rendered necessary by force majeure or
distress
o Submarines and other underwater vessels are required to
navigate on the surface and show their flag pursuant to Art.
20
o Foreign ships exercising the right of innocent passage shall
comply with all laws and regulations and generally accepted
international regulations relating to the prevention of
collisions at sea
- When does passage become prejudicial and hence non-innocent?
(Art. 19(2) of the UNCLOS)
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o Any threat or use of force
o Any exercise of weapons of any kind
o Spying
o Any act of propaganda
o Launching, landing, or taking on board of any aircraft
o Launching, landing, or taking on board of military device
o Loading or unloading of any commodity or person contrary
to customs or law of the coastal State
o Any act of willful and serious pollution
o Fishing
o Research or survey activities
o Interference with coastal communication
o Any other activity not having a direct bearing on passage –
this shows that the list is non-exhaustive
C. Right of innocent passage of warships
- Under customary law, the free passage of foreign warships may be
subject to special rules of the riparian State
- Looking at the old Conventions, such as the 1930 Hague Codification
Conference, jurist Gidel argued that the passage of foreign warships
through territorial sea is not a right but a tolerance of the coastal
State
- Corfu Channel case: ICJ accepted the right of innocent passage of
foreign warships in straits for international navigation BUT did not
directly address the question of whether or not warships have the
right of innocent passage in territorial waters
- Though the UNCLOS has no explicit provision on the matter, Tanaka
pointed out 4 points
o Article 17 (on innocent passage) is under the title “Rules
Applicable to All Ships). Hence, it can be presumed that it
applies to warships.
o Article 20 requires submarines to navigate on the surface and
show their flags while in territorial seas
o Article 19(2) relate to things which make a passage non-
innocent. Some of these items specifically, if not totally,
relate to warships.
o Article 30 stipulates that if any warship does not comply with
the laws of a State, the State may order the ship to leave
immediately. This provision would be pointless if warships
had no right of innocent passage.
- State practice, however, is not uniform.
o Nearly 40 states, mostly developing countries, require prior
notification or prior authorization of the passage of warships
through their territorial sea.
- Does a foreign warship have the right to enter the territorial sea to
render assistance to persons in distress without prior notification?
o Art. 98, which applies to high seas and the EEZ, places an
explicit obligation upon every State to render assistance
o UNCLOS has no explicit provision containing a duty to render
assistance to any person in distress in the territorial sea but
to offer such assistance would be consistent with the
requirement of the consideration of humanity
D. Right of innocent passage of foreign nuclear-powered ships and ships
carrying inherently dangerous or noxious substances
- It seems beyond doubt that these vessels enjoy the right of innocent
passage based on the expression of Article 23 “when exercising the
right of innocent passage”
- In practice, some States require prior notification or prior
authorization of the passage of these vessels.
o This practice has encountered opposition.
- BUT the prior notification rule is actually consistent with Article 22(1)
and (2) of the UNCLOS which designates sea lanes and traffic
separation schemes
E. Rights of coastal State concerning innocent passage
- Article 21,22, and 25 of the UNCLOSE provide the rights of the coastal
State
- Article 21(1) gives the coastal State the legislative jurisdiction relating
to innocent passage with respect to:
o the safety of navigation and the regulation of maritime trafic;
o the protection of navigational aids and facilities and other
facilities or installations;
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o the protection of cables and pipelines;
o the conservation of the living resources of the sea;
o the prevention of infringement of the fisheries laws and
regulations of the coastal State;
o the preservation of the environment of the coastal State and
the prevention, reduction and control of pollution thereof;
o marine scientific research and hydrographic surveys;
o the prevention of infringement of the customs, fiscal,
immigration or sanitary laws and regulations of the coastal
State
- Coastal State may also require ships to use the sea lands and traffic
separation schemes as it may designate by virtue of Art. 22(1)
- Coastal States may also take the necessary steps to prevent passage
which is not innocent in conformity with Art. 25(1) provided that the
suspension of passage is
o Essential for the protection of its security
o Temporal
o Limited to specific areas of its territorial sea
o Without discrimination
o Take effect only after being duly publishes
- Theoretically, state has the criminal jurisdiction over foreign vessels
passing through the territorial sea but Art. 27(1) of the UNCLOS
provides that criminal jurisdiction should not be exercised, save only
in the following cases:
o Consequences of the crime extent to coastal State
o Crime is of a kind to disturb the peace of the country or the
good order of the territorial sea
o Assistance of local authorities has been requested
o Such measures are necessary for the suppression of illicit
traffic of narcotics and psychotropic substances
 This does not apply to vessels exercising vertical
passage
F. Obligations of coastal State concerning innocent passage
- Under Art. 24(1), state shall not impose requirements on foreign
ships which have the effect of denying innocent passage,
discriminate against ships of any State
- Corfu Channel case (dicta) – coastal State is under the obligation to
give appropriate publicity to any danger to navigation under Art.
24(2)
III. INTERNATIONAL STRAITS
A. Typology of international straits under the UNCLOS
- According to a survey, there are 52 int’l straits less than 6 nautical
miles in width, 153 between 6 and 24 nautical miles in width, and 60
with more than 24 nautical miles in width.
- Convention divides international straits into two main rubrics
according to the applicability of Part III – those where Part III applies,
and those where it does not.
B. International straits under Part III of the UNCLOS
- Two types of international straits that are under Part III
- FIRST TYPE: straits used for international navigation between one
part of the high seas or an EEZ and another part of the high seas or
an EEZ: the regime of transit passage applies to this kind of strait
o Two Criteria for identifying international straight:
Geographical and Functional
o Geographical: that the straits connect two separate parts of
high seas or EEZ with another
o Functional: such strait is used for international navigation; it
must be actually used to meet the criterion as mere potential
utility is not enough
o Example: Dover Strait bet. UK and France
- SECOND TYPE: straits excluded from the application of the regime of
transit passage and straits between a part of the high seas or an EEZ
and the territorial sea of a foreign state: the right of innocent passage
applies to this kind of strait
C. International straits not under Part III of the UNCLOS
- Three type of international straits that are not covered by Part III
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- FIRST TYPE: those which contain a route through high seas or EEZ of
similar convenience
- SECOND TYPE: straits where passage is regulated in whole or in part
by long-standing international conventions in force
o Turkish Strait
o Danish Belts and Sound
o Strait of Magellan
o Strait of Gibraltar
o The Aland Strait
- THIRD TYPE: straits that are within archipelagic waters
D. Right of transit passage
- Art. 38(2) defines it as the exercise in accordance with this Part [III]
of the freedom of navigation and overflight solely for the purpose of
continuous and expeditious transit of the strait between one part of
the high seas or an exclusive economic zone and another part of the
high seas or an exclusive economic zone (Applicable only to first type
of strait under Part III)
- Difference with right of innocent passage:
o Art. 38(1) states that all ships and aircraft enjoy right of
transit passage, even warships
o Right of transit passage includes overflight by all aircraft
o Regarding submarines, no explicit obligation to navigate on
the surface and show their flag
o Unlike the right of innocent passage, there can be no
suspension of the right of transit passage
- Ships and aircraft are required to comply with three types of duties:
common duties for ships and aircraft in transit passage, duties for
ships in transit passage, and duties for aircraft in transit passage
- Common duties under Art. 39(1)
o Proceed without delay
o Refrain from any threat or use of force against the
sovereignty, territorial integrity, or political independence of
States bordering the Strait
o Refrain from any activities other than those incident to their
normal modes of continuous and expeditious transit
o Comply with other relevant provisions of Part III
- Ships in transit passage are under duties to (art. 39(2), 40, 41, 42):
o Comply with generally accepted international regulations,
procedures, and practice for safety at sea
o Comply with generally accepted international regulations,
procedures, and practice for the prevention, reduction, and
control of pollution at sea
o Refrain from carrying out any research or survey activities
without prior authorization
o Respect sea lanes and traffic separation schemes
o Comply with law and regulations adopted by States
- Aircraft in transit passage are under duties to (Art. 39(3)a and b)
o Observe the Rules of Air established by the International Civil
Aviation Organization
o Monitor the radio frequency assigned by the competent air
traffic control authority
E. Right and obligations of coastal States bordering straits
- Coastal State has a right to adopt laws and regulations relating to
transit passage through straits under Article 42(1)
- BUT this legislative is limited in two respects (Art. 42(2)):
o Non-discrimination in form or in fact among foreign ships
o No law which has the practical effect of denying, hampering,
or impairing the right of transit passage
- Coastal States bordering straits shall undertake the following duties
under Article 44:
o Not to hamper transit passage
o Give appropriate publicity to any danger to navigation or
overflight
o Not to suspend transit passage
- Since international straits are usually narrow, risk of maritime
casualties is higher that in other marine spaces. Thus, the
environmental protection of theses waterways is a matter of serious
concern.
o Case in point is the compulsory pilotage system adopted by
Australia where merchant ships 70 meters in length or over
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or oil tankers, chemical tankers, liquefied gas tankers,
irrespective of size, navigating certain Australian straits must
have a pilot with them.
F. Non-suspendable innocent passage
- Unlike innocent passage through territorial seas, innocent passage
through international straits is not allows by virtue of Article 45(2)
G. Legality of creation of bridges in international straits (1991 Great Belt
case)
- Finland and Denmark share a strait, the Great Belt. Denmark decided
to build a bridge over the West Channel for road traffic and another
bridge on the East Channel for the same purpose with a clearance of
65 meters above sea level. This effectively closes the East Channel for
vessels over 65 meters in height.
- Even before the bridges were built, Finland uses vessels with a height
of close to 150 meters. By building the bridge, these vessels
important to Finnish economy and trade will be hampered from
travelling.
- However, before the oral arguments before the Court, the two
countries reached a settlement so the question is still open.
IV. ARCHIPELAGIC WATERS
A. Definitions
- Archipelagic State – a state constituted wholly by one or more
archipelagoes and may include other islands
- Archipelago (Art. 46b) – 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
o FOUR criteria which must be present: existence of group of
island, compactness or adjacency of islands, existence of an
intrinsic geographical, economic and political entity, and
historical practice
o No minimum requirement of islands
- Archipelagic waters – waters enclosed by the archipelagic baselines
drawn in accordance with Art. 47
o Note that the Philippines declared that archipelagic waters is
similar to internal waters, a claim objected to by some states
B. Archipelagic baselines
- Art. 47(1) provides that an archipelagic State may draw straight
archipelagic baselines joining the outermost points of the outermost
islands and drying reefs
o Must include main islands with a ratio of 1:1 or 1:9, with the
former designed to exclude archipelagos dominated by one
or two large islands (UK, Iceland, etc) and the latter to
exclude widely dispersed archipelagos (Tuvalu, Kiribati)
o Length of the baselines shall not exceed 100 nautical miles
BUT up to 3% of the total number of baselines may exceed
up to 125 nautical miles
o Drawing of the baselines must not significantly depart from
the general configuration of the archipelago
o The baselines shall not be drawn to and from low-tide
elevations (including drying reefs) UNLESS lighthouses or
similar installations permanently above sea level have been
erected
o Baselines shall not be applied by a State in a manner to cut
off from the high seas or EEZ the territorial sea of another
State
o Baselines must be shown on charts of a scale adequate to
ascertain their position
C. Jurisdiction of States over archipelagic waters
- Art. 49(1) and (2) state that archipelagic waters are under the
territorial sovereignty of the archipelagic State BUT is qualified in four
respects by rights of third States
o Archipelagic State is required to respect the traditional
fishing rights of the Third States pursuant to Art. 51(1)
o Obligation to respect existing submarine cables under Art.
51(2)
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o Under Art. 47(6), if part of the archipelagic waters lies
between two parts of an immediately adjacent neighboring
State, existing rights and legitimate interests traditionally
exercised by the latter State must be respected
o Strong need to guarantee the freedom of navigation of
foreign vessels in archipelagic waters especially since some
important navigation channels fall under archipelagic waters
like the Sunda and Lombok Straits in Indonesia
D. Right of innocent passage through archipelagic waters
- Art. 52(1) of the UNCLOS provides the right of innocent passage
through archipelagic waters of ships of all States
- This right is essentially parallel to the right of innocent passage in the
territorial sea
o May be suspended under Article 52(2)
o No provision concerning submarines but it seems that it
should be treated the same as territorial waters where
submarines must navigate on the surface
E. Right of archipelagic sea lanes passage
- Art. 53(3) defines Archipelagic sea lanes passage as 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.
- Principal elements:
o Applies between one part of the high seas/EEZ and another
part of the high seas/EEZ
o Ships and aircraft enjoy the right of archipelagic sea lanes
passage in such lanes and routes under Art. 53(2)
o Like the right of transit passage, archipelagic sea lanes
passage must be the exercise of the rights of navigation and
overflight solely for the purpose of expeditious, continuous,
and unobstructed transit.
- Art.53(5) requires ships and aircraft in these passages to NOT deviate
more than 25 nautical miles to either sides of the axis lines (center
lines) and such vessels or aircraft should not navigate closer to the
coasts than 10% of the distance between the nearest points on
islands bordering the sea lane. This has two interpretations:
o First: The 10% means the whole width of the channel
between the bordering islands
o Second: The 10% means distance from the axis line to the
nearest island
- The State may also designate archipelagic sea lanes and air routes
under Art. 53 of the UNCLOS provided:
o It shall include normal passage routes used as international
navigation or overflight
o Shall be defined by a series of continuous axis lines from
entry points to exit points
o In designating theses routes, the State is obliged to refer
proposals to the competent international organizations
o The state must clearly indicate the axis of the sea lanes and
traffic separation schemes on charts
o If no designation is made, the right od archipelagic sea lanes
passage may be exercised through the routes normally used
for international navigation by virtue of Article 53(12)
V. CONTIGUOUS ZONES
A. Concept
- Under Art. 33(1), contiguous zone is a marine space contiguous to the
territorial sea in which the coastal State may exercise the control
necessary to prevent and punish infringement of its customs, fiscal,
immigration or sanitary laws and regulations within its territory or
territorial sea.
- Under Art. 33(2), the maximum breadth is 24 nautical miles. It is part
of the EEZ when the State claims the zone. When the State does not
claim its EEZ, the contiguous zone is part of the high seas.
- It appears that under Art. 33(1), States are not allowed to extend
legislative jurisdiction to its contiguous Zone.
o EXCEPTION: Art. 303(2) of the UNCLOS provides that the
removal of archaeological and historical objects from the
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contiguous zone is an infringement of customs, fiscal,
immigration, or sanitary laws of the State and such removal
is to be considered within the territory or the territorial sea.
VI. EXCLUSIVE ECONOMIC ZONE
A. Genesis of the concept
- The EEZ is an area beyond and adjacent to the territorial sea,
extending not more than 200 nautical miles from the baseline of the
territorial sea
- Originated when Chile, Peru, and Ecuador set the limit of exercise of
full sovereignty and reach the Peruvian and Humboldt Currents
which were rich in living species
- In August 1972, Kenya formally submitted its proposal for a 200-mile
EEZ backed by an overwhelming support from developing countries
- Unlike a continental shelf, a State must claim the zone in order to
establish an EEZ
B. Legal Status of the EEZ
- The landward limit of the EEZ is the seaward limit of the territorial
sea and the seaward limit of the EEZ is at a maximum of 200 nautical
miles from the baseline. Since the territorial sea is 12 nautical miles
in breadth, the maximum breadth of the EEZ is 188 nautical miles.
- It comprises the seabed and subsoil, the waters superjacent the
seabed as well as airspace above the waters
o Coastal State has the sovereign rights of exploration and
exploitation, conservation and management of the natural
resources, whether living or non-living, of the waters
superjacent to the seabed and of the seabed and its subsoil
- Territorial sovereignty of the coastal State does NOT extend to the
EEZ but the EEZ is not part of the high seas. Thus, it is a sui generis
zone.
C. Sovereign rights over the EEZ
- Limited to economic exploration and exploitation
- It may be argued that sovereign rights in the EEZ are exclusive in a
sense that no one may undertake activities in the EEZ without the
express consent of the coastal State
- Art. 73(1) of the UNCLOS seem to provide both legislative and
enforcement jurisdiction over the EEZ.
- The rights of a coastal state in its EEZ are:
o Sovereign rights are spatial in nature as they can only be
exercised within the EEZ
o Only limited to matters defined by international law
o If within matters defined by IL, the State may exercise both
legislative and enforcement jurisdiction
o May exercise sovereign rights over all persons within the EEZ
regardless of nationality so there is no limit ratione personae.
o Sovereign rights are exclusive such that other State cannot
engage in activities in the EEZ without the consent of the
coastal State
D. Jurisdiction of coastal State over the EEZ
- Aside from economic exploration and exploitation, the coastal State
possesses jurisdiction over the establishment and use of artificial
islands and structures, marine scientific research, and protection and
preservation of the marine environment.
- With regard to establishment and use of artificial islands and
structures, Art. 60(3) requires that due notice must be given of the
construction of such structures and islands and permanent means for
giving warning of their existence must be maintained.
o What if the structure is for military purpose? No State
Practice on this matter. Tanaka states the favorable view is
that UNCLOS does not explicitly attribute rights or
jurisdiction in this matter to a coastal State or to other States
- Under Art. 56(1)(b)(iii), the State has legislative and enforcement
jurisdiction with regard to protection and preservation of marine
environments in the EEZ
E. Freedoms of third States
- Among the six freedoms in Art. 87 of the UNCLOS, three freedoms of
the seas – navigation, overflight, and lying of submarine and pipelines
– apply to the EEZ.
- Art. 58(3) provides that States have due regard to the rights and
duties of the coastal State and shall comply with laws and regulations
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adopted by the coastal State in accordance with the provisions of the
Convention
o Thus, it seems that the three freedoms may still be qualified
by the State with jurisdiction over the EEZ
VII. CONTINENTAL SHELF
A. Genesis of the concept of the continental shelf
- Geologically, it is an area adjacent to a continent or around an island
extending from the low water line to the depth at which there is a
marked increase of slope to a greater depth
- Truman Proclamation of 1945 – US unilaterally decided to extend its
jurisdiction over the natural resources of the continental shelf
o Caused a chain reaction and many States unilaterally
extended their jurisdiction toward the high seas
B. Spatial Scope of the Continental Shelf
- The landward limit of the shelf is the seaward limit of the territorial
sea.
- The seaward limit of the continental shelf needs a more careful
consideration. Article 1(a) of the Geneva Convention on the
Continental Shelf provides TWO criteria to locate the seaward limits
of the shelf: 200 meters isobath and the exploitability test. However,
in Art. 76 of the UNCLOS provided TWO alternate criteria:
o Geological criterion (outer edges of the continental margin)
o Distance criterion (distance of 200 nautical miles)
- Legal title can be defined as the criteria on the basis of which a state
is legally empowered to exercise rights and jurisdiction over the
marine areas adjacent to its coast.
o North Sea Continental Shelf case: Highlighted the concept of
natural prolongation as a legal title over the continental shelf
o However, the emergence of the concept of the 200-mile EEZ
affected the legal title
C. Criteria to determine the outer limits of the continental shelf beyond
200 nautical miles
- There are two geological criteria provided in Art. 76(4) to determine
the edge of the continental shelf beyond the distance limit:
o Sedimentary thickness – Using the “Irish formula”, the outer
edge of the margin is fixed by a line delineated by reference
to the outermost fixed points at each of which the thickness
of the sedimentary rocks is at least 1 percent of the shortest
distance from such point to the foot of the continental slope
o Hedberg formula – outer edge is determined by a line
delineated by reference to fixed points not more than 60
nautical miles from the foot of the continental slope
o In both cases, the lines delineating the outer limits of the
shelf must be straight lines not exceeding 60 nautical miles
in length.
D. The Commission on the Limits of the Continental Shelf (CLCS)
- The Commission consists of 21 members who shall be experts in
geology, geophysics, or hydrography, elected by State Parties to the
UNCLOS on a 5-year basis.
- They shall consider the data and other material submitted by coastal
States and make recommendations to coastal States, as well as
provide scientific and technical advice if requested by the State
concerned.
- HOWEVER, delimiting the continental shelf beyond 200 nautical
miles is outside the jurisdiction of the Commission
o In case of a dispute, the Commission shall not consider and
qualify a submission made by any of the States concerned in
the dispute, unless there is prior consent given by all States
that are parties to such a dispute
E. Procedure to establish the outer limits of the continental shelf
- Involves FOUR steps:
o Coastal State is to initially delineate the outer limits in
conformity with Art. 76 of the UNCLOS
o Coastal State shall submit this information on the limits to
the CLCS within 10 years from the entry into force of the
UNCLOS in that State. Approval of the Commission is by a
majority of 2/3.
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o Coastal State is to establish the outer limits of its continental
shelf on the basis of the recommendations of the
Commission
o Under Article 76(9), the coastal State is to deposit with the
UN Secretary-General charts and relevant information,
including geodetic data, permanently describing the outer
limits of its continental shelf.
- It must be noted that the procedure in Art. 76 is linked to Art. 82 with
regard to revenue sharing. Claims over the shelf beyond 200 miles
without the acceptance of the obligation of revenue sharing should
not be assumed
F. Payments concerning the exploitation of the shelf beyong 200
nautical miles
- Coastal state is obliged to make payments or contributions in kind in
respect of the exploitation of the non-living resources of the
continental shelf beyond 200 nautical miles
- These are to be made annually after the 5th year with 1% of the value
or volume of production at the site, the rate of which increases by 1%
yearly until the 12th year, from which point there will be a flat rate of
7%.
G. Sovereign rights of States over the Continental Shelf
- The sovereign rights are inherent rights and do not depend on
occupation, effective or notional, or any express proclamation.
- Rights only pertain to the exploration and exploitation of natural
resources on the continental shelf. Non-natural resources are not
included within the ambit of these sovereign rights even if found on
the shelf
- Natural resources basically consist of the mineral and other non-
living resources of the seabed and subsoil, as well as sedentary
species either immobile on or under the seabed or unable to move
except in constant physical contact with the seabed or subsoil. Where
the state established the EEZ, the state has the rights to explore and
exploit all marine living resources living on the seabed in the zone
- Sovereign rights include legislative and enforcement jurisdiction with
a view to explore and exploit the natural resources on the continental
shelf
- Sovereign rights are exercisable over all people or vessels regardless
of their nationalities
- Rights are exclusive in the sense that no other State can exercise
them over the EEZ without the express consent of the coastal State
- In addition to these sovereign rights, the coastal state has jurisdiction
with regard to artificial islands, marine and scientific research,
dumping and other purposes
o Under Art. 80, Art. 60 concerning the jurisdiction over
artificial islands apply mutatis mutandis to the continental
shelf.
o Article 56(1)(b)(ii) and 246(1) of the UNCLOS gives the coastal
State the jurisdiction with regard to marine scientific
research
o Article 210(5) makes clear that the coastal State has the right
to permit, regulate, and control dumping on the continental
shelf
o Article 81 provides that the coastal State has exclusive rights
to authorize and regulate drilling on the continental shelf for
all purposes
F. Freedoms of Third States
- Art. 79(1) stipulates that all States are entitled to lay submarine
cables and pipelines on the continental shelf
- HOWEVER, it must be noted that the freedoms of Third Stares maybe
qualified by the coastal state in the superjacent water of the
continental shelf beyond 200 nautical miles
o State has exclusive jurisdiction over the construction of
artificial islands as well as installations and structures on the
continental shelf beyond 200 miles
o In practice, coastal States explore and exploit natural
resources on the shelf through the superjacent waters above
the shelf. It then appears inescapable that the coastal State
The International Law of the Sea
Tanaka, pp. 70-120; 123-150
exercises its jurisdiction in the superjacent waters above the o Freedom of fishing, subject to the conditions laid down in
shelf for the purpose of the exploration and exploitation. section 2;
o The Coastal State has jurisdiction with regard to marine o Freedom of scientific research, subject to Parts VI and XIII.
scientific research on the continental shelf under Articles
56(1)(b)(ii) and 246(1) of the UNCLOS, and such research on
the continental shelf is to be conducted with the consent of
the coastal State pursuant to Article 246(2)
- In summary, it appears that in some respects the freedom of the high
seas may be qualified by coastal State jurisdiction in the superjacent
waters above the continental shelf and the airspace above the
waters.
VIII. HIGH SEAS
A. Spatial Scope
- Under Article 86, the high seas are defined as ‘all parts of the sea
which are not included in the EEZ, in the territorial sea or in the
internal waters of a State, or in the archipelagic waters of an
archipelagic State.
- When the coastal state claims the EEZ, the landward limit of the high
seas is the seaward limit of the EEZ. When the state does not claim
the EEZ, the landward limit of the high seas is the seaward limit of the
territorial sea.
B. Principle of Freedom of the high seas
- TANAKA: This has two meanings
o First: High seas are free from national jurisdiction. No state
may validly purport the high seas to its sovereignty.
o Second: Freedom of the high seas means the freedom of
activities there.
- Freedom of activities, under Art. 87(1), provides:
o Freedom of navigation;
o Freedom of overflight;
o Freedom to lay submarine cables and pipelines, subject to
Part VI;
o Freedom to construct artificial islands and other installations
permitted under international law, subject to Part VI;