This article is written by Udita Prakash, a student at UPES, Dehradun pursuing BBA LLB(Hons.). This article talks about International water boundaries and the jurisdiction of States over them.
The freedom to use the world’s international waters is one of the oldest standards in international law. However, the freedom of the seas has been threatened since the time of Grotius. Specifically, the blessing of the regions where this precept is implemented began with the First United Nations Conference on the Law of the Sea in the 1950s.
The predominant factor in this decrease in freedom is because of the coastal countries that seek to exercise manipulations on maritime regions and resources. The end result of the termination is a usurpation of the freedom of movement of goods, offerings, and people, which in the long run interferes with the freedom of navigation.
Frequently, the coastal states claim to exercise their jurisdiction over overseas vessels in regions having a baseline of the ocean. Coastal countries try to disrupt the mineral and coal-rich hotspots in those areas by imposing price lists on foreign ships and flirting with the idea of extraterritoriality. Over the years, the coastal countries have received additional power over a growing ocean neighbourhood.
Since 1982, the ocean has had a charter that now regulates the rights and obligations of the coastal states no longer in force, but also the ships that sail within the exclusive maritime zones. The United Nations Convention on the Law of the Sea (UNCLOS) presents the sovereign rights of coastal states in various marine areas in exclusive regions of the ocean. These areas are:
- internal waters;
- territorial sea;
- contiguous vicinity;
- one of a kind financial zone; and
- the excessive seas.
It additionally offers coastal states extra or much less jurisdiction over overseas vessels based on wherein the vessel is located.
Internal waters are assimilated to terrestrial territory and the coastal State can revel in complete and exceptional sovereignty over them. An overseas delivery, positioned in inland waters, is a situation to the legislative, administrative, judicial, and jurisdictional powers of the coastal State with regard to any illegal act devoted on board or ashore via means of individuals of the crew.
The coastal State must no longer allow harmless passage in addition to immediate baselines “as inland water regions that have previously no longer been considered as such. Under those circumstances, there could be harmless passage of property such as is supplied in the [UNCLOS] through one’s waters.
Jurisdiction over foreign merchant vessels
The coastal State has civil jurisdiction over overseas service provider ships. Specifically, overseas service provider vessels are difficult to the coastal State’s navigation guidelines and its sanitary, fiscal, technical, and customs controls, which may be applied with no discrimination among vessels. However, while a dispute arises among group members about their nationality, the coastal State now no longer typically asserts its jurisdiction.
Regarding criminal jurisdiction, the coastal State has different jurisdiction over illegal acts driven onboard overseas service provider ships placed inside its inner waters. It may additionally intrude on the request of the captain of the vessel or the flag of the State.
The coastal State also can implement its rules while its doggin is compromised, while the crime influences its peace and true order or while its protection is at stake. However, overseas vessels are not difficult to bring under the jurisdiction of the coastal State.
Jurisdiction over foreign warships
Overseas warships, such as authority vessels used for non-industrial purposes, are exempt from the coastal State’s civil jurisdiction because of the precept of sovereign immunity.
This immunity, consistent with UNCLOS Article 32, is a challenge to the conduct of the vessel that has to abstain from any antagonistic mindset or act of violence. Should a vessel engage in such acts, the coastal State may have a right to self-defence. Thus, the coastal State will now no longer interfere in topics solely concerning crewmembers of a warship, or while the offence is committed onboard the vessel.
But, it’ll be completely capable if neither the perpetrator nor the sufferer is a crewmember. In the same way, the coastal State does not have jurisdiction in acts through officials or crew executed as State merchants. When an act is committed inside the behaviour of public affairs, the coastal State can also additionally continue and make an arrest, however, it has to supply the perpetrator to the captain on the request of the party.
On the other hand, if the facts are not related to the conduct of public affairs, the injured facts can sue before the courts of the coastal State. Immunities can even defend warships against seizure, arrest or detention of the ship and the people on board (the police or the customs government have no right to board), in cases of collision.
The territorial sea
According to UNCLOS, the physical activities of the coastal State are fully competent within the territorial sea, however, positive concessions. The biggest mess of this sovereignty is the harmless passage of ships from overseas, whether or not they are personal or military. This standard precept can be found in Article 17 of UNCLOS, which establishes that ships of all States, whether or not they are coastal or landlocked, experience the right to pass harmlessly through the territorial sea.
UNCLOS Article 18 defines “passage” as navigation through the territorial sea without coming into the inner waters of the coastal State or for the motive of coming into or leaving the inner waters, with the circumstance that the passage is non-stop and expeditious, keep in instances incidental to navigation, of force majeure, distress, or for rendering help to different vessels. UNCLOS defines “innocent passage” in Article 19(1) as “innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.”
The flag State can be held liable for warships, consisting of authority ships operated for non-industrial purposes, if the coastal State suffers any loss or damage of any nature, as a result of such ships due to non-compliance with the guidelines laws and regulations of the coastal State, provisions of UNCLOS or different regulations of global law. If a warship is required to conform to the rules and does not behave as directed, the coastal State may also require it to leave its territorial sea immediately and may exert any significant pressure to compel it to do so. In any case, the flag State may be liable for damage caused by a warship or any other authority vessel operated for non-industrial purposes, in accordance with Article 31 of the United Nations Convention on the Law of the Sea.
The idea of the contiguous sector seems obsolete. It is worth mentioning that the contiguous sector is part of the differentiated financial sector (EEZ) and, consequently, of the seas where the freedom of navigation precept is applied. Therefore, in its contiguous sector, the coastal State no longer works sovereignty, however as a handiest substitute it has specialized powers. According to UNCLOS Article 33,and, UNCLOS Article 303(2), “to govern visitors in historic and archaeological instruments, the coastal State may also presume that the elimination of such gadgets from the contiguous sector without the State’s consent could violate the legal guidelines referred to in [UNCLOS] Article 33, and the State may also act accordingly.” In addition, due to the fact the contiguous sector is part of the EEZ, the coastal State will even have all of the rights and duties, without exception, that pertains to the EEZ.
Exclusive economic zone (EEZ)
The Exclusive Economic Zone extends from the end of 12 nautical miles from the baseline that is the territorial sea to 200 nautical miles from the baseline. Foreign ships can trade, lay cables as long as they do not damage the state of the sea. The coastal State has rights of exploration, use and conservation, management and exploitation on the seabed and the subsoil for this EEZ.
Rights of coastal states in its EEZ
In accordance with Article 56 (1) of the United Nations Convention on the Law of the Sea, the coastal State has more effective sovereign rights by reason of exploring, exploiting, conserving and caring for herbal resources, whether or not they are habitable, from the waters overlying the seabed and from the seabed and its subsoil, and in reference to different sports for the financial exploitation and exploration of the area, consisting of the manufacture of electrical energy from water, currents and winds.
Article 56 of UNCLOS also provides jurisdiction to the coastal State in relation to islands and synthetic facilities, marine medical research, and the safety and protection of the marine environment. However, the coastal State, in order to exercise its rights, must take due account of the rights of the different States within the EEZ.
In summary, we can say that the EEZ created through Article 56 of the UNCLOS grants the coastal State an extraordinary jurisdiction over the financial use of the 188 miles located offshore of the territorial sea, where fishing is of the utmost importance.
Rights of foreign states in EEZ
The Foreign States also are given rights concerning navigation and non-financial uses of the EEZ. According to UNCLOS Article 58, overseas States experience a number of freedoms of the EEZ seas as stated in the article. Those freedoms are:
- the laying of submarine cables and pipelines; and
Different countries around the world make the use of the ocean legally associated with one’s freedoms.
This offers the different States the opportunity to interact in non-financial places within the EEZ. The different freedoms indexed in Article 87 are not included in Article 58 because these places are reserved only for the coastal State. These freedoms consist of:
- the liberty to assemble synthetic islands and different installations;
- fishing; and
- marine medical research.
This brings up the query of residual rights and to whom they must belong. UNCLOS no longer delivers a clean solution to the residual right. However, as an alternative solution, if war arises between a coastal State and an overseas State, it “must be resolved on the idea of fairness and in all of the applicable circumstances, thinking of the respective significance of the concerned to the events in addition to the worldwide network as a whole.”
In any case, an overseas State and its vessels need to have due regard for the rights of the coastal State in exercising its very own rights and freedoms and must observe the legal guidelines and policies of the coastal State followed according to UNCLOS and international law.
Rights and duties of a state in freedom of navigation & nationality of ships
The freedom of navigation is the oldest of the freedom of the Exclusive Economic Zone (EEZ) seas and cannot be impaired with UNCLOS and worldwide law. As UNCLOS Article 90 provides “each State, whether or not coastal or land-locked, should have a set of regulations to sail ships that are flying its flag at the EEZ seas.” The underlying outcome of Article 90 is that a flag State has one-of-a-kind jurisdiction over the vessels that fly its flag. Similarly, it can also be seen from Article 90 read with Article 92, that every vessel ought to have the simplest one nationality which also helps in the identification of the vessel. Moreover, each State has the power to decide how it will give recognition to a vessel. Flag States have numerous obligations mentioned in UNCLOS Article 94 in addition to which the warships and the authority vessels that are used for non-industrial providers have entire immunity at the EEZ seas. Furthermore, in Article 97, we can also see that if there is a penal obligation of a crew member then the flag State or the state of which the accountable individual belongs can institute proceedings. Specifically, Article 97 states that “no arrest or detention of the vessel shall be ordered, while there is a certain degree of investigation, with the help of any government other than the flag State.”
Right to visit and right of hot pursuit
In accordance with Article 110 of the United Nations Convention on the Law of the Sea, a warship, or “any other aircraft or delivery aircraft duly legally marked and identifiable as in service of the authorities”, may also board a ship encounter in excessive seas or in the EEZ if one have reasonable grounds to suspect this type of vessel is engaged in piracy, the slave trade, unauthorized broadcasting, or if one have an economic suspicion that the vessel does not have nationality. This right to go gives a central authority vessel the authority to confirm the actual delivery to fly its flag by checking its files and, if suspicion persists, to similarly observe the delivery. However, if the suspicions are unfounded, the delivery must be compensated for any loss or damage, so prolonged because no act has already been devoted to justifying such suspicions. However, this right to visit cannot be exercised by means of a ship of the central authority of a State against warships and ships of authority of any other State, in accordance with its immunity established in articles 95 and 96 of theUNCLOS. In Article 111 (1) of the UNCLOS, the right of hot pursuit is granted to a State that has critical reasons for considering that the persecuted vessel has violated the legal guidelines and directives of the coastal State. The limits in the exercise of this right are that this type of persecution must be initiated while the overseas vessel is “in internal waters, archipelagic waters, territorial sea or the contiguous sector of the persecuting State”, and the persecution already does not need to be interrupted. In addition, the pursuit can begin in the most convenient way “after a visible or audible signal has been given to prevent at a distance that allows it to be visible or heard with the help of an overseas ship.” Another circumstance is that the right of hot pursuit can be more easily exercised with the help of warships or naval aircraft, “or different ships or aircraft certainly marked and identifiable as in authorized and certified aircraft carriers.” Adequate prosecution also applies to violations within the EEZ of the coastal State legal guidelines and directives relevant to this sector below UNCLOS.
Right of fisheries
In seas, beyond the EEZ, each vessel in each State has its own infinity to fish, as stated in Article 116 of the UNCLOS. However, it is by far identified that 90% of the resident sources of the oceans at this time are concentrated in areas concerned about the sovereignty of a coastal State. Consequently, the freedom to fish beyond these zones is of little real importance. ‘Furthermore, even fishing itself is a concern of existing treaties’, that is, the rights and responsibilities of coastal States under Articles 63 (2) and 117. Under Article 63 (2), the coastal State and the different States will make preparations regarding the essential measures to be taken in order to ensure the conservation of the quotas that are being carried out in the EEZ of the coastal or larger States, or in each of the EEZs and in a place past and adjacent to it. Articles 64 refer to the rights and responsibilities of the coastal State with reference to the exploitation and conservation of clearly migratory species, marine mammals, anadromous and catadromous species and their conservation. In addition, Article 117 of UNCLOS imposes on the States involved the obligation to cooperate and take measures for the control and conservation of organic sources relevant to their citizens. To do this, the State must cooperate and take into account the unique objectives of the coastal State. This can be achieved with the help or under the auspices of fisheries commissions around the world. Any degree of conservation followed in accordance with the UNCLOS must no longer discriminate, in form or in fact, against the nationals of any State. Finally, in excessive seas, UNCLOS is most effective for the jurisdiction of the flag State in relation to all sports of fishing in excessive seas carried out by vessels flying its flag. Therefore, coastal states cannot take enforcement action.
Throughout this note, it has been found that the coastal State has broad powers over the oceans and more specifically over its territorial sea. Even if the coastal state no longer has sovereignty over its EEZ, it nevertheless maintains the utmost importance for fisheries. With its proper legislation at various levels within single zones, the coastal State can impose an extraordinary burden on overseas vessels with the help of compelling them to comply with State guidelines.
We can also assert jurisdiction over offending vessels and transfer them before the courts. However, the historical precept of the freedom of the seas has no longer completely disappeared and the coastal states face some limits to their powers.
In fact, through this article we have seen that overseas vessels have the right to lose navigation in excessive seas, such as the EEZ and the contiguous area. However, they must appreciate the coastal State guidelines in those unique areas. Foreign vessels even have a harmless right of passage within the territorial sea, as long as they are in accordance with the duly published regulation of the coastal State, this is authorized by UNCLOS.
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