User:Jose Edmundo Dayot/PIL Module 11

Law of the Sea is a branch of international law concerned with public order at sea. Much of this law is codified in the United Nations Convention on the Law of the Sea (UNCLOS). The convention, described as a “constitution for the oceans,” represents an attempt to codify international law regarding territorial waters, sea-lanes, and ocean resources. It comprises the rules governing the use of the sea, including its resources and environment. The law of the sea is one of the principal subjects of international law and is a mixture of treaty and established or emerging customary law. It covers rights, freedoms and obligations in areas such as shipping, territorial seas and waters and the high seas, fishing, wrecks and cultural heritage, protection of the marine environment and dispute settlement.

History and sources

Treaties have emerged as a major source of international law in recent times and easy access to this kind of documentation is crucial for research and practice in the law of the sea. Moreover, international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; and judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law, are to be applied in deciding disputes in accordance with international law.

United Nations Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea (UNCLOS) was adopted in 1982 in Montego Bay, Jamaica and entered into force on November 16, 1994. UNCLOS provides a comprehensive legal framework governing all activities and uses of the world's seas and oceans. The Convention establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas. It defines the limits of territorial seas of countries from which they can explore and exploit marine resources. These are called Exclusive Economic Zones (EEZ) and they are known as an innovation introduced by UNCLOS. The EEZ is an area beyond and adjacent to the territorial sea: it can extend to a maximum 200 nautical miles from the baselines. Within the EEZ, a coastal State enjoys sovereign rights over its natural resources. It can exercise its jurisdiction over certain activities for the purpose, among others, of protecting the environment, however it is also obliged to respect the rights of other States.

General concepts in the international law of the sea

Land and maritime features

Feature	Definition	Measurement
River Mouths	River mouths are where rivers empty into the ocean.	If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-water line of its banks.
Bays	A bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast.	If the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters. Where the distance between the low-water marks of the natural entrance points of a bay exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length.
Islands	An island is a naturally formed area of land, surrounded by water, which is above water at high tide.	The territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf of an island are determined in accordance with the provisions of the UNCLOS applicable to other land territory, except for rocks.
Rocks	A rock is an island that is unable to support human habitation or economic life. Rock is a legal term and does not refer to any particular type of geological formation.	Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.
Reefs and atolls	Reefs are formations of coral, roughly shaped like mountains, which run just below the surface of the water. Atolls are small, U-shaped islands or reefs which are made from coral. In the case of islands situated on atolls or of islands having fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward low-water line of the reef.	In the case of islands situated on atolls or of islands having fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward low-water line of the reef, as shown by the appropriate symbol on charts officially recognized by the coastal State.
Low-tide elevations	A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide.	Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.
Artificial islands, installations, and structures	Artificial islands, installations, and structures are man-made structures usually for the exploration or exploitation of marine resources and can be built for other purposes such as mean spring tide range tide observations.	Artificial islands or other offshore installations as here defined are subject to all other jurisdictional and other limitations and requirements in UNCLOS, e.g., that artificial islands or offshore installations can possess neither a territorial sea nor be considered as permanent harbor works and the coastal States are responsible under UNCLOS for environmental protections required for artificial islands.

Baselines

Baselines serve as the basis of reckoning all zones, i.e., the starting point of measurement. These are the coastal low-water lines as marked on large scale charts officially recognized by coastal states.

Maritime zones

Maritime zones are areas of ocean or sea which are or will be subject to national or international authority. They are delimited as parts of the seabed, water column and sea surface, the subdivision being on the grounds of political jurisdiction relating to the use and ownership of marine resources. In general, a maritime boundary is delineated at a particular distance from a jurisdiction's coastline. In several countries, however, the term maritime boundary represents borders of a maritime nation.

Continental shelf

The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

The term continental shelf is used by geologists generally to mean that part of the continental margin which is between the shoreline and the shelf break or, where there is no noticeable slope, between the shoreline and the point where the depth of the superjacent water is approximately between 100 and 200 meters. However, this term is used in UNCLOS as a juridical term. According to the Convention, the continental shelf of a coastal State comprises the submerged prolongation of the land territory of the coastal State - the seabed and subsoil of the submarine areas that extend beyond its territorial sea to the outer edge of the continental margin, or to a distance of 200 nautical miles where the outer edge of the continental margin does not extend up to that distance. The continental margin consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.

Archipelagic States

An archipelagic State means a State constituted wholly by one or more archipelagos and may include other islands. An archipelago means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.

Rights and responsibilities of States

Schematic map of maritime zones (aerial view).

	Rights	Responsibilities
Internal waters	States have the same sovereign jurisdiction over internal waters as they do over other territory. There is no right of innocent passage through internal waters.
Territorial sea	Coastal States have sovereignty and jurisdiction over the territorial sea. These rights extend not only on the surface but also to the seabed and subsoil, as well as vertically to airspace. The vast majority of States have established territorial seas at the 12 nautical mile limit, but a handful have established shorter thresholds. They may take the necessary steps in its territorial sea to prevent passage which is not innocent.	To ensure that ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.
Contiguous zone	Right to both prevent and punish infringement of fiscal, immigration, sanitary, and customs laws within its territory and territorial sea. Unlike the territorial sea, the contiguous zone only gives jurisdiction to a State on the ocean’s surface and floor. It does not provide air and space rights.
Exclusive economic zone	Coastal States have sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds. They have jurisdiction with regard to the establishment and use of artificial islands, installations and structures; marine scientific research; and the protection and preservation of the marine environment.	To have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of the UNCLOS.
Continental shelf	Rights for the purpose of exploring and exploiting its natural resources. Such rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. States are entitled to lay submarine cables and pipelines on the continental shelf. They are allowed to build artificial islands, installations, and structures on the continental shelf.	To not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other State.

Dispute settlement under the UNCLOS

Territorial claims in the South China Sea

States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means. Nothing in impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice. If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure. If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply, unless the parties to the dispute otherwise agree.

International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea (ITLOS) is an independent judicial body established by UNCLOS to adjudicate disputes arising out of the interpretation and application of the Convention. The Tribunal is composed of 21 independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea. The Convention establishes a comprehensive legal framework to regulate all ocean space, its uses and resources. It contains, among other things, provisions relating to the territorial sea, the contiguous zone, the continental shelf, the exclusive economic zone and the high seas. It also provides for the protection and preservation of the marine environment, for marine scientific research and for the development and transfer of marine technology. One of the most important parts of the Convention concerns the exploration for and exploitation of the resources of the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (the Area). The Convention declares the Area and its resources to be "the common heritage of mankind". The International Seabed Authority, established by the Convention, administers the resources of the Area.

Part XV of the Convention lays down a comprehensive system for the settlement of disputes that might arise with respect to the interpretation and application of the Convention. It requires States Parties to settle their disputes concerning the interpretation or application of the Convention by peaceful means indicated in the Charter of the United Nations. However, if parties to a dispute fail to reach a settlement by peaceful means of their own choice, they are obliged to resort to the compulsory dispute settlement procedures entailing binding decisions, subject to limitations and exceptions contained in the Convention.

The mechanism established by the Convention provides for four alternative means for the settlement of disputes:

1. The International Tribunal for the Law of the Sea;
2. The International Court of Justice;
3. An arbitral tribunal constituted in accordance with Annex VII to the Convention; and
4. A special arbitral tribunal constituted in accordance with Annex VIII to the Convention.

Arbitration

Subject to the provisions of Part XV, any party to a dispute may submit the dispute to the arbitral procedure provided for in this Annex by written notification addressed to the other party or parties to the dispute. The notification shall be accompanied by a statement of the claim and the grounds on which it is based. Unless the parties to the dispute otherwise agree, the arbitral tribunal shall determine its own procedure, assuring to each party a full opportunity to be heard and to present its case. The parties to the dispute shall facilitate the work of the arbitral tribunal and, in particular, in accordance with their law and using all means at their disposal, shall provide it with all relevant documents, facilities and information; and enable it when necessary to call witnesses or experts and receive their evidence and to visit the localities to which the case relates. Unless the arbitral tribunal decides otherwise because of the particular circumstances of the case, the expenses of the tribunal, including the remuneration of its members, shall be borne by the parties to the dispute in equal shares. Decisions of the arbitral tribunal shall be taken by a majority vote of its members. The absence or abstention of less than half of the members shall not constitute a bar to the tribunal reaching a decision. In the event of an equality of votes, the President shall have a casting vote. If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law. The award of the arbitral tribunal shall be confined to the subject-matter of the dispute and state the reasons on which it is based. It shall contain the names of the members who have participated and the date of the award. Any member of the tribunal may attach a separate or dissenting opinion to the award. The award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute.