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The Law of the Sea

Lecture Notes
By
Prof. Dr. Mohammad Naqib Ishan Jan
Outline
Exclusive Economic Zone
Introduction
-Definition and breadth of EEZ
The Convention on the Law of the
Sea, 1982 -Rights of a coastal State over its
EEZ
The Territorial Sea
-Rights and duties of other States
-Definition in the EEZ
-Breadth Continental Shelf
-Rights of coastal State over its -Definition
territorial sea
-Rights of the coastal State over the
-The right of innocent passage continental shelf
- Coastal State’s jurisdiction over The High Seas
ships in passage
-Definition
-Criminal jurisdiction
-Freedom of the high seas
-Civil jurisdiction
-Jurisdiction over vessels on the high
- Immunity from jurisdiction seas
Contiguous Zone - Piracy
-The limits of Article 101
-Universal jurisdiction
- Right of hot pursuit
Introduction
• The law of the sea (LS)
-is a developed branches of PIL
-enables coastal & landlocked States, &/or IOs, to
regulate their relations in respect of those
areas of d sea subject to coastal State
jurisdiction & in relation to those areas of d
high seas & d sea-bed beyond national
jurisdiction
-Before d law of d sea was developed sea was
basically an area of ‘no law’. States used to
enjoy freedom at sea & continued to do so
right up to d 1st half of d 20th.
Introduction continued
• Freedom of d Seas doctrine
-gave all States d freedom to exploit d
resources of d seas as they wished
-served d interest of d developed Sts. rather
then d developing Sts as d developed Sts
were, and still are, technologically advanced.
• By d 2nd half of d 20th century
-Sts realized the unfairness of d doctrine
-Sts started to advocate for change and a law that
accommodate d interests of all, developed &
developing, Sts.
Introduction continued
4 factors inspired States for change:
1. Technological breakthroughs in navigation, fishing
techniques & ocean exploration in developed
countries enabled these countries to explore &
exploit most of d natural resources of d sea for their
own benefit;
2. The developing counties, lacking d necessary
technologies, felt they were basically deprived of d
benefits that sea can provide to them;
3. The desire of the developing States to protect their
shared economic interests over the sea; and
4. The increasing threat of pollution poisoning the seas.
Introduction continued
Consequently, UN held 2 conferences on the LS in
Geneva in 1958 and 1960.
• The 1958 Conference produced 4 conventions on
the LS, namely:
1. Convention on the TS & the Contiguous Zone;
2. Convention on the High Seas;
3. Convention on the Continental Shelf; and
4. Convention on Fishing and Conservation of
Living Resources of the High Seas.
• But the 1958 UN Conference
-failed to reach agreement on d question of width of d TTS.
Introduction continued
• The 2nd UN Conference was held at Geneva in 1960 to fix
the breadth of d TTS
• but it could not achieve much success.
• So a 3rd UN conference on the LS was convened in New
York in December 1973
-to draw up a new comprehensive convention on the law
of the sea,
-after 9 years of negotiation
- in 1982 the UN Convention on the Law of the Sea was
adopted
-( Hereinafter: 1982 UNCLOS)
The Convention on the Law of the Sea, 1982
(UNCLOS)
• The 1982 UNCLOS
-is a multilateral treaty having 320 arts. with 157 members
-entered into force on 16 Nov. 1994 (Art. 308)
- prevails over d 1958 Convs. (Art. 311)
-But, d 1958 Conv. remains in force 4 its parties w/ch r not
parties 2 d 1982 UNCLOS.
• 1994 Agreement relating 2 d Implementation of Part XI
of the UNCLOS
-came in2 force- 28 July 1996, hs 138 members- hs 10 arts.
-amended d 1982 UNCLOS
- modified d deep seabed-mining regime
-both Part XI of d 1982 UNCLOS & d Agreement r a
single instrument (Art. 2 of d Agreement).
-give d 1982 UNCLOS universal application
The Territorial Sea (TS)
Definition
-Art. 2, UNCLOS
-Territorial sea (TS)
-sometimes called territorial waters
-is that area of d sea i.e.,
-adjacent 2 d coast
-over w/ch IL permits d coastal State
- to enjoy sovereignty & jurisdiction,
-subject 2 d ‘right of innocent passage’4 foreign vessels
-sovereignty extends 2 d air space over d TS, its bed
& subsoil’.
• Don’t confuse TS with internal waters.
• Internal water (Art 8, UNCLOS)
-include:
-waters 2 landward of baselines from w/ch TS is
measured
-ports, bays, horbors, rivers, lakes and canals.
- a State hs full sovereignty over it.
- no right of innocent passage over d Int. waters
-Access rights 4 foreign ships prohibited, unless
permitted, entry is based on distress
-Exit 4 foreign ships may be restricted
-arrest of ship;
-unseaworthy;
-to clear papers -Port state control 4 pollution or ships in
distress.
Ships in Port
-Coastal States will enforce local laws relating to
-customs,
-immigration,
- pollution,
-pilotage,
-navigation,
-crimes (murder)
- Internal Matters of Ship may be left alone,
-unless affects peace and good order of port state
-murder e.g., may affect good order of the port.
Breadth of d TS
-16th & 17th centuries - Sts claimed large sea areas as their TS
- 18th century, Sts followed d so-called ‘cannon shot-rule’
- as d range of a cannon shot at that time was 3 miles.
-19th century most sts accepted d 3 miles rule.
-By 20th century Sts practice changed as they began 2 claim
12 nm.
- Now, most coastal Sts, including Malaysia, claim 12 n.m.
as their TS (1 nautical mile = 1,852 meters)
(approximately 6,076 feet)
- Art. 3 of the UNCLOS: Every State has the right to
establish the breadth of its territorial sea up to a limit not
exceeding 12 nautical miles, measured from baselines
determined in accordance with this Convention.
‘Baseline’ is d starting place from w/ch a coastal St’s int.
waters, TS & other maritime zones can be measured.
• 2 particular baselines 2 draw TS limits:
i. Normal baseline
ii. Straight baseline
• Normal baseline (NB)
-measuring TS’ breadth from d baseline w/n
water is at low tide.
-Art. 5, UNCLOS: “Except where otherwise
provided in this Convention, the normal baseline
for measuring the breadth of the territorial sea is
the low-water line along the coast as marked on
large-scale charts officially recognized by the
coastal State.”
Straight baseline (SB)
- is an alternative method of measuring TS’s breadth.
- used in localities where
- the coastline is deeply indented & cut into, or if
- there is a fringe of islands along d coast in its immediate
vicinity.
- a series of straight lines drawn 2 connect d outer points
of islands, rocks, & reefs along a deeply indented
coastlines.
- applied 2 draw baseline from one prominent coastal
feature to another-2 by-pass d irregularities in betw/n.
-Developed initially by Norway: Anglo-Norwegian
Fisheries Case (UK v. Norway) [(1951) ICJ Rep. 116] – ICJ:
SB ws permissible u/r IL 4 sts. whose coasts wr deeply
indented or infringed with islands.
- Recognized as such by d 1982 UNCLOS, Art. 7 (1).
- also applied to the mouth of a ‘bay’ to measure d breadth
of d TS (Art. 10, UNCLOS, 1982)
- A bay, is an indentation whose area is as large as, or larger
than, that of d semi-circle whose diameter is a line drawn
across d mouth of that indentation.
-The maximum permissible length of such lines, is 24M.
-Historic bays are exceptions: U/r CIL a St
may claim title to a bay on historic grounds
if it can show that
-it has for a considerable period of time
claimed d bay as int. waters,
-effectively exercised its authority therein
& d claim hs received d
acquiescence of other St.
-E.g.,
Canada claims historic bay rights over
-Hudson Bay, w/ch hs an area of
580,000 square miles & is 50 mile wide
at d entrance.
• SB not applied to delimit the TS betw/n
neighbouring Sts
• Delimitation of the TS of the neighbouring Sts. is
governed by Art. 15, UNCLOS:
- delimited by agreement
-in d absence of agreement do not extend TS
beyond d median line every point of w/ch is
equidistant from the nearest points on the
baselines from w/ch d breadth of d TS is
measured.
Rights of the coastal State over its TS
Art.2 UNCLOS 1982:
-coastal St exercise sovereignty over its TS. Art. 2 (1), UNC:
sovereignty extends 2 d int, waters, TS, & d air space above
territory of every St.
Coastal Sts’ hv exclusive rights over TS:
(a) to fish, to exploit seabed & subsoil resources of d TS;
(b) to enjoy d air space above TS (no ‘innocent passage’ 4
foreign aircraft);
(c) to transport goods/passengers from one port 2 another.
(d) to regulate, authorize & conduct marine scientific
research (msr) [Art. 245] (Msr in TS needs coastal St
permission.
(c) to regulate w/in its TS, transit between its coastal ports;
navigation; health laws; custom laws; & immigration
The laws & regulations of coastal St – must be oboyed by
foreign ships exercising d ‘right of innocent passage’.
Right of innocent passage (Arts. 17-32, UNCLOS 1982)
-The exercise of sovereign right over TS is subject
to a very important limitation, i.e., foreign ships
have a right of innocent passage through d TS
(Art. 17) .
Definition of Passage -Art 18 -UNCLOS 1982
- Navigation through TS to other waters, to or from
ports
- Continuous and expeditious
-May stop & anchor if:
-incidental to normal navigation, in distress or
assisting other ships in distress, force majeure
(i.e., Act of God).
- Submarines: on surface, must fly its flag
Definition of Innocence-Art 19 UNCLOS 1982
- General: Non-innocent if
- prejudicial to peace, good order or security of coastal state
- The following acts are deemed prejudicial:
-Threat or use of force against coastal state or in violation of UN
Charter
-Exercise of weapons
-Acts aimed at collection of information prejudicial to security
-Acts of propaganda aimed at affecting defence or security
-Launching or taking on aircraft
-Loading or unloading contrary to fiscal, customs, immigration rules
-Acts of willful and serious pollution
-Fishing
-Research and survey activities
-Acts aimed at interfering with communications AND:
- any other activity not having a direct bearing on passage.
In PP v Narogne Sookpavit [[1987] 2 MLJ 100], the
respondents, who were Thai fishermen, were on a vessel
which was then at sea about 3 miles off the Malaysian
coast. On board were fishing appliances and a large
quantity of fish. The respondents were arrested and taken
into custody by officers of the Malaysian Navel patrol
vessel. They were charged for being found in possession of
the fishing appliances under s.11 of the Fisheries Act 1963.
Held that the passage by the accused persons in the
circumstances of this case could not be regarded as
innocent passage since it contravened Malaysian domestic
legislation and that the boat and the fishing appliances in
question were forfeited.
Rights to limit innocent passage
- Limit and suspend for military purposes
-Publish in advance; non-discrimination
- Charge for actual services
- Apply the laws to regulate (Art. 21, UNCLOS 1982)
-navigation,
-conservation,
-fisheries,
-customs, fiscal etc
- Pollution prevention and environment protection
- Sea lanes and traffic separation
Duty of coastal state
- don’t interfere•
- don’t hamper except in accordance with Convention
- allow free navigation
-give warning of known dangers to navigation.
In Corfu Channel Case (UK v. Albania), (1949) ICJ Rep. 4,
- 2 British warship - struck at mines in Albanian waters &
suffered damage (45 UK officers dead & 42 others
wounded).
-Question raised as to who lay the mines?
Held: Albania. It was liable for failing to warn the
approaching British warships of the imminent danger to
which the minefield exposed them.
The obligation to warn of the existence of danger arise
from the well recognized principle that:
Every State’s obligation not to allow knowingly its
territory to be used for acts contrary to the rights of other
States. For these reasons, the Ct, gives judgment that the
People’s Republic of Albania is responsible u/r IL 4 the
explosions in the Albanian waters, & 4 the damage & loss
of human life w/ch resulted there from.
Not clear whether war ships do have the right of
innocent passage through the territorial sea.
- In the Corfu Channel Case the ICJ – this issue
was not dealt with – as it was dealing with
international straights.
- The UNCLOS 1982 is also silent on this issue
for it neither denies such a right to foreign war
ships nor allows it.
- Most of the countries, except the Western
countries, maintain that the right of innocent
passage does not extend to war ships .
Coastal State’s jurisdiction over ships in passage
(a) Criminal Jurisdiction (Art. 27, UNCLOS 1982)
-Should not extend to ship unless, e.g.,
-consequence of the crime extend to coastal state;
- disturb the peace of the country or the good order
- assistance of the local authorities has been requested by the
master of the ship or by a diplomatic agent or consular officer of
the flag State;
- drug trafficking
(b) Civil Jurisdiction (Art. 28, UNCLOS 1982)
-Don’t divert to get at person on board
- Only arrest for obligations incurred in course of or for purpose of
passage
-Can arrest ship having left internal waters
Immunity from jurisdiction (Arts.
29-32, UNCLOS 1982)
- Warship defined in Art.29
- Warships and Non-Commercial Govt. Ships enjoy
immunity (Art. 32)
- Warship failed to comply with local laws -ask to
leave
-Any damage then a matter of state responsibility
and claim is against the State (Art. 31).
Contiguous Zone (Art 33, UNCLOS 1982)
- Further 12 M beyond TS
- State may exercise control necessary to prevent and
punish infringements of customs, fiscal and sanitary
regulations which will occur or have occurred in territorial
sea
-Within the contiguous zone the coastal State may, e.g.,
turn back a ship planning to commit illegal acts inside its
territorial sea or arrest a ship leaving its territorial waters
that has violated its laws
-Overlaps with EEZ for other purposes
Exclusive Economic Zone
Definition: Art. 55, UNCLOS, 1982:
“The exclusive economic zone is an area beyond and
adjacent to the territorial sea, subject to the specific legal
regime established in this Part, under which the rights and
jurisdiction of the coastal State and the rights and
freedoms of other States are governed by the relevant
provisions of this Convention”.
Breadth: (Art. 57, UNCLOS 1982)
-200 NM – measured from the baselines from which the
breadth of the territorial sea is measured” (i.e., the 200
miles are not to be measured from the seaward outer
limits of the territorial sea)
- not a zone ab initio -optional in the sense that if a coastal
State claim it, it may have it otherwise no
Legal Status
-Is sui generis: a regime defined in all aspects by
the Convention
-EEZ is subject to the “specific legal regime” of
the Convention (- Art. 55, UNCLOS 1982)
-coastal state has combination of “sovereign
rights” and “jurisdiction” (-Art. 56, UNCLOS
1982)
- Clearly no absolute sovereignty - But -not
residual high seas either
-Other states’ rights and duties are equally
defined by the Convention regime (Art. 58,
UNCLOS 1982)
Rights and Duties of Coastal State (Art. 56, UNCLOS 1982)
Rights
• Authorities of a coastal State has Sovereign Rights
to explore, exploit, conserve and manage
- non-living resources including water column,
seabed and subsoil
- living resources -water and seabed
• Authorities of a coastal St. has Sovereign rights
conduct marine scientific research (MSR) in EEZ
• But other Sts can conduct such research if the
coastal St. allow (consent) them to do so
• Authorities of a coastal St may construct,
authorize & regulate artificial islands &
installations/structures 4 any economic purposes
• Coastal St. has control over many activities
-eg:
-Dumping of waste at sea
-Pollution from seabed activities
-Vessel source pollution
• Limitations on Rights:
- Coastal state to set Total Allowable catch
(TAC);
-follow the Maximum Sustainable Yield
(MSY) rule;
- allocate the harvested surplus to the intended
target.
• The authorities of a coastal State hv d power to
-board, inspect, arrest & take judicial
proceedings against foreign flag vessels &
their crew believed 2 hv engaged in illegal
fishing in its EEZ. (UNCLOS 1982, 73)
• But, Art. 73 requires that arrested vessels & their
crew shall be promptly released by d coastal State
upon d posting of a reasonable bond or other
security.
• Thus, coastal State cannot imprison d arrested
vessel & their crews – nor it can impose corporal
punishment on them.
• Special provision is made for the settlement
of disputes under Art. 73.
• U/r Art. 292, where d flag St of a vessel
alleges that authorities of another St. Party
has not complied its prompt release
obligations, d question of release from
detention may be submitted to ITLOS, if d
parties fail to agree on another court or
tribunal w/in 10 days from d time of
detention.
• The Rules of the ITLOS:
-give priority to applications 4 d prompt release
of vessels or crews over all other
proceedings b4 d ITLOS
-hearings of d application (normally limited to 2
days) to commence w/in 15 days from d first
working day after d application is received.
-The judgment of d Tribunal is then required to
be given within 14 days of d closure of d
hearing.
-Of all proceedings b4 int’l Ct. & tribunals,
this mechanism is thus exceptionally fast.
• Who is entitled to bring prompt release proceedings?
-Only the flag State (i.e. must be a flag State at d time of
arrest & also at d time of d filing of dapplication 4
prompt release).
• In d Grand Prince case, d Tribunal declined jurisdiction
on d ground that d applicant hd ceased 2 b d flag State of d
vessel b4 d application hd bn filed.
• In the Juno Trader case, the Tribunal considered an
argument that d applicant hd ceased 2 b d flag State prior
2 commencement of the proceedings, due 2 d fact that title
2 d vessel hd passed 2 d arresting State in accordance with
its national laws.
• But, it remains an open question w/ther d Tribunal cld have
jurisdiction 2 order d prompt release of a vessel following
a “definitive” confiscation of d vessel by d arresting State
• The prompt release obligation applies to vessels arrested 4
violations of d types of laws referred to in Art. 73.
• The obligation does not necessarily apply to ships arrested
4 violations of other laws, such as smuggling.
• In the Saiga case, the Tribunal was faced with d issue
w/ther d prompt release mechanism applied to a ship
arrested 4 “bunkering” (refuelling) a fishing vessel w/in d
EEZ of d arresting State, in violation of d latter’s laws. The
Tribunal held that it did. It reasoned that d prompt release
obligation did not depend on the way that a law was
classified u/r nl, & that it was there4 irrelevant that d
arresting State qualified d laws in this case as “customs” or
“smuggling” regulations.
• Art. 292 provides that in prompt release proceedings, the
Tribunal shall deal only with the question of release,
without prejudice to the merits of any case b4 d m.ct.
• Thus, d Tribunal is not concerned in such cases with d
question w/ther or not d vessel did in fact violate d laws of
d arresting State. Nor can d Tribunal consider w/ther d ML
pursuant to w/ch d ship was arrested are consistent with IL,
or w/ther d arresting State has breached any other
provision of d Convention.
• If the flag St considers that d arresting St hs breached IL in
arresting d ship, this must be raised in other proceedings.
• This occurred in d Saiga case, in w/ch d Tribunal found, in
a separate case, that d detaining St. hd violated IL in
arresting that ship.
• If d Tribunal finds that d prompt release obligation applies,
it will determine w/ther d amount of d bond fixed by d
detaining St. is reasonable. If no bond hs bn fixed, d
Tribunal will itself determine what is a reasonable bond.
• In the Saiga & Juno Trader cases d Tribunal held that a
“reasonable” bond must be fixed (bearing in mind d
balancing interests of d flag State & d detaining St.), & that
it was not open 2 d Tribunal to order that no bond, or only
a “symbolic bond”, should be posted.
• In the Volga and Juno Trader cases the circumstances of
the seizure of the ship by the arresting State were found
not to be relevant.
• Generally d bond take d form of a bank
guarantee.
• In Monte Confurco, d Tribunal rejected a
request that d bond be in d form of cash or
certified cheque.
• In d Volga case, d Tribunal affirmed that it
was not possible to include further non-
financial conditions on release, such as a
requirement that information be provided
about d owner & ultimate beneficial owners
of d ship.
• Obligation of the Coastal State
-General obligation to protect and preserve marine
environment (Art 192, UNCLOS 1982)
-Take measures to prevent and control vessel source
pollution (Art. 194, UNCLOS 1982)
• Rights and duties of other States In EEZ (Art. 58,
UNCLOS 1982)
-Right to lay cables
-Over-flight
-Navigation -with reference to high seas right
• DUTY of other states to respect coastal state laws w/ch
conform to IL
Charts Illustrating General Areas of Maritime Territory
Continental Shelf (CS)
Art. 76 (I), UNCLOS 1982:
CS of a coastal State comprises the sea-bed and subsoil …throughout the natural
prolongation of [state’s] land territory
(a) to the outer edge of the continental margin, or
(b) to at least 200 NM where margin is smaller
Art. 76 (3)
- Continental Margin Comprises the Shelf, Slope and Rise
-BUT Does Not Include The Deep Seabed or “Oceanic Ridges”

Art. 76 (5)
-States whose continental margin extends further than the minimum 200 miles,
they are entitled to claim jurisdiction up to the maximum of either
-350 miles (from baselines) or 100 miles of the 2,500 metre isobath.
See the chart
General Status of CS
-Coastal states’ rights exist ab initio and ipso jure (North
Seas Cases 1969)
-No need to claim or use (also in CSC 1958, UNLOS
1982)
-Natural prolongation as basis of title
-Rights are Exclusive -Even If Not Exerted By State
(Confirmed in UNLOS 1982)
Rights and Duties of Coastal State
-Sovereign Rights to explore and exploit natural resources of seabed and
subsoil
-Natural Resources defined as (Art. 76, UNCLOS 1982):
“..the mineral and other non-living resources of the seabed and subsoil
together with living organisms belonging to sedentary species…”
- Sedentary Species defined as
“...organisms which, at the harvestable stage, either are immobile on
or under the seabed or are unable to move except in constant physical
contact with the seabed or the subsoil.” E.g., Snow Crab
-Full Jurisdiction (Arts. 80, 60) over:
-Installations
-Structures
-Artificial Islands
-Construct, Authorize and Regulate
-Apply all Local Laws
- Safety Zones
-500 metres or as Approved By Int’l Standards.
Limitations -Rights of Other States
-No General Jurisdiction Over Water Column, Airspace
-No “Unjustifiable Interference”With High Seas Rights -Navigation etc (Art.
78)
-Pipelines and Cables ( Art. 79)
-Other States Entitled To Lay, Maintain Pipelines and Cables
-Can Regulate Re -Interference With Seabed Activities and Pollution
Protection
-For Pipelines -Coastal State Has Right to Consent to Routing.
Specific Issues Beyond 200 M
-Art. 82: revenues from areas beyond 200 NM subject to contributions to Seabed
Authority
-After 5 years –1% of value of production
-Escalating by 1% per year up to 7 %
-Value of production –high measure
High Seas (HS)
Definition (Art.86, UNCLOS 1982)
-Water column beyond national jurisdiction (+200 –including over
broad shelf)
Freedom of the HS
- HS res communis
-Art.87 UNCLOS 1982:
-HS open to all States,
-Ships belonging to both coastal and land-locked States enjoy
freedom of:
- (a) navigation;
- (b) overflight;
- (c) lay submarine cables and pipelines,
-(d) construct artificial islands and other installations;
-(e) fishing,
-(f) scientific research.
Limitations (Art. 87(2): The above freedoms are subject to:
- the provisions of the UNCLOS 1982
- due regard for the interests of other States
-due regard to activities in the Seabed Area
Ships sailing on the HS
-Must fly their flag States (so as to avoid lawlessness in
the HS) (Art. 90)
- render assistance to other ships that are in danger, distress
and faced collisions (Art. 98)
- take effective measures to prevent and punish the
transport of slaves
- set free any slave taking refuge on board any ship (Art.
99).
Jurisdiction over vessels on the high seas
General rule:
- Vessels on the HS are subject to the jurisdiction of the flag State (I.,e.
the State in which the ship is registered) – See Art. 92, UNCLO
1982
Lotus Case (France v. Turkey) (1927) - The ICJ stated:
“[V]essels on the high seas are subject to no authority except that
of the State whose flag they fly. In virtue of the principle of
freedom of the high seas, that is to say, in the absence of any
territorial sovereignty over the high seas, no State may
exercise any kind of jurisdiction over foreign vessels upon
them.“
Exceptions

(1) Pirate ships - be seized by any State (Art. 105); and


(2) Ships chased by the coastal State from one of its jurisdictional
zones – can be arrested at the high seas under the right of hot
pursuit (Art. 111).
Piracy (Arts. 100 to 110 UNCLOS 1982)
Art. 101 defines piracy as performing,
participating or inciting, illegal acts of
violence, detention or depredation for private
ends by crew or passengers aboard a private
ship or aircraft, against another ship or
aircraft, or person or property thereon, either
on the high seas or other area outside of any
state’s jurisdiction (i.e., terra or res nullius).
Limitations of Art. 101
I. The illegal acts must be ‘committed for private ends’ –
- Not for public or political ends
- Acts committed by recognized governments, belligerents or
even insurgents do not constitute piracy jure gentium.
-E.g., the seizure in 1961 of the Santa Maria by captain Galvao, the
Portuguese political dissident, did not fall within the meaning of
piracy in IL
-E.g., The Achille Lauro incident in 1985, in which an Italian
cruise liner was seized by PLO hijackers who, after holding
the crew and the passengers as hostages, demanded Israel to
release the Palestinian prisoners, cannot be regarded as piracy
because the act of hostage takers were politically motivated
Note: The Achille Lauro resulted in promulgation of Rome
Convention on the Suppression of Unlawful Acts against the
safety of Maritime Navigation
2. The illegal acts must be on the HS or on a territory which is terra
nullius).
- If the illegal acts took place within a State’s territorial waters that
State alone would be permitted to prosecute the offenders.
3. In the commission of the illegal acts two ships must be involved, a
private ship and the victim ship ( I.e., “two-ship rule”).
-So ‘mutiny’ (i.e., mere seizure of a ship by its crew or passengers) is
not piracy in IL.
- A ship under the control of mutineers may be arrested on the HS only
by the flag State and not by other State.
- If, however, the mutineers, even if they are the crew of warships or
government ships, use the ship against another ship for the purpose of
carrying out the crime of piracy then they can be regarded as pirates
and their offence continues as long as the crew that committed the act
of piracy are still in control of the ship [Arts.102-3].
Universal jurisdiction
- jurisdiction exercisable in regard to pirates is universal
- Art. 105, UNCLOS 1982:
- Any state may seize pirate ships or aircraft and punish the crew.
- Art. 107, UNCLOS 1982:
- this seizure must be made with a state’s warships or clearly marked
government vessels
Art. 106, UNCLOS 1982:
- The seizing state will be liable to compensate the flag state of a ship that
has been seized without adequate grounds
- Pirates lose the protection of national state
In Re Piracy Jure Gentium [1934] AC 586], Privy Council held: a person
guilty of such piracy has placed himself beyond the protection of any State. He
is no longer a national, but hostis humani generis
- Many States have enacted special statute to deal with the crime of piracy
- In Malaysia the crime of piracy falls within the ambit of the Penal Code
- punish them under the Penal Code
- Cts in Malaysia confirmed that piracy jure gentium is an offence committed on
the high seas and all States can exercise jurisdiction over such offence[1].
(Regina v Tunku Mahomed Saad & Others, [1840] 2 Ky.Cr. 18; Regina v Nya
Abu & Others, (1885-1890) 4 Ky 169; Muka Bin Musa v Public Prosecutor,
[1964] 30 MLJ 275).
Right of hot pursuit (Art.111 UNCLOS 1982)
-Designed to prevent a foreign ship that has violated the laws and
regulations of a coastal State to avoid arrest by escaping to the high
seas
In R v. Sunila & Solayman [1986) 28 DLR (4th) 450, at 456], Nova
Scotia Supreme Court, Appeal Division held that:
“[IL] has always recognized the right of a State to pursue and
arrest a foreign ship on the high seas, and to return that ship to its
ports to answer charges committed by the ship and her crew within
the State’s territorial waters. This right is not only based upon
international treaty but upon the ancient principles of the law of
nations.…”
- HP can start in most of the zones, including the territorial sea,
contiguous zone and EEZ for crimes committed in the relevant zone
– but not outside EEZ
Conditions for the exercise of the right of HP

Art.111 UNCLOS 1982 lays down the following conditions for the valid exercise
of the right of HP:
1. Reason to believe violation of coastal state laws
2. Pursuit by warship, clearly marked govt. vessel, etc.
-private ship or air craft cannot pursue
3. Accompanied by auditory or visual signal to stop
E.g., shouting, waving, or giving radio signal, if received by the
pursuit ship, it then constitutes an effective auditory or visual
command)
4. Uninterrupted
E.g., few hours wait may invalidate the hot pursuit
-if hot pursuit is not carried out validly - subsequent arrest of
foreign ship is also illegal. Such interrupted pursuit made arrest
illegal in Saiga Case -
-But see R. v. Mills where it was held that UK ‘s forces waiting
overnight did not rendered the pursuit illegal.
5. Pursuit must cease if reach territorial sea of
-third State or
-the flag State
-otherwise would be violating a very important principle of IL which
protects territorial integrity and sovereignty of all States.
6. Pursuits commences from jurisdictional zones, including
-TS
-CZ
-EEZ
-CS
-HP cannot commence from outside EEZ
-HP must be conducted in accordance with Art. 111 - otherwise the
pursuing State entails liability.
- Art. 111(8): “Where a ship has been stopped or arrested outside the
territorial sea in circumstances which do not justify the exercise of the
right of hot pursuit, it shall be compensated for any loss or damage
that may have been thereby sustained.”
Limits on the use of force in the exercise of hot pursuit
-No direct provisions in the UNCLOS 1982 covering this issue
- Nevertheless, Art. 293 of the the UNCLOS generally requires that
-use of force must be avoided
- But, if unavoidable, reasonable and necessary force, including firing
a warning shot, can be used to effectuate the seizure and arrest
of the pursued ship.
In I'm Alone case [(1935) 3 RIAA 1609] it was held that a
coastal State has the right of hot pursuit and in the exercising of this
right, it may use necessary and reasonable force for the purpose of
effecting the objects of boarding, searching, seizing and bringing into
port the suspected vessel.
- Considerations of humanity do apply in the law of the sea, as they do
in the areas of IHL.
- I'm Alone case
Facts:
I’m Alone, a British ship of Canadian registry, engaged in
smuggling prohibited liquor into the US. When I’m Alone was
within twelve miles of the US coast, the US coast guard patrol
boat signaled it to stop but it ignored the signal and fled to
the high seas whereby the US coast guard pursued it and fired at
it. Consequently, I’m Alone was sunk on the high seas by the US
coast guard that resulted in the loss of one member of the I’m
Alone’s crew.
Held
US might use necessary and reasonable force to board, search,
seize and bring the suspected vessel into port; but that the
admittedly intentional sinking of the vessel was not justified by
any principle of IL.
- Thus, the right of HP does not include the right to kill crew or sink the
pursued vessel deliberately;
- But accidental sinking in the course of arrest may be lawful. The best
case to illustrate this principle is
In the Red Crusader Cass [1962), ILR..485, the Anglo-Danish
Commission of Enquiry found that the firing of solid shot into the
trawler Red Crusader by a Danish fisheries patrol vessel ‘exceeded the
legitimate use of armed force’.
Thus, the judgment of the Red Crusader case and the I’m Alone case
argue against the use of force. Indeed they require countries to engage
in significant other steps before using force and they make it difficult
to justify the use of force based on a State of necessity. Specifically,
the coastal State cannot fire without warning and, as the consideration
of humanity dictates, they should do everything to protect human life.
The doctrine of constructive presence
- Entitles a coastal State to exercise an extended jurisdiction over both
- Boats from a mother ship acting illegally within a particular zone and
- Mother ship which is lying outside the zone – the presence of the mother
ship is constructively established.
Art. 111 (4) UNCLOS 1982:
“[T]he ship pursued or one of its boats or other craft working as a team and
using the ship pursued as a mother ship is within the limits of the territorial
sea, or, as the case may be, within the contiguous zone or the exclusive
economic zone or above the continental shelf.”
- Thus, even though the pursuit ship has not entered the jurisdictional zones of the
coastal State, if it has sent its boat to commit the offence there, the coastal
State can exercise the right of HP, as if the pursuit ship itself had entered the
zone and committed the offence.
-In R v Mills [(1995) 44 ICLQ 949], it was held that if a foreign ship working
as a team with the mother ship entered the territorial sea or other designated
zones and violated laws of the coastal State then that State can exercise the
right of hot pursuit. A similar decision was reached in the Araunah case.
The International Sea Bed Area

• The seabed and subsoil beyond national


jurisdiction
• Common heritage of mankind
• Jurisdiction exercised by International
Seabed Authority –complicated regime
• ONLY non-living resources
• No activity at present
Settlement of disputes arising
under the 1982 Convention
• Disputes may be settled by any peaceful
means chosen by the parties
• but if no such settlement is reached, the
dispute must be submitted for binding
decision either to
-the International Tribunal for the Law of
the Sea (ITLOS) or
-ICJ
ITLOS
• Is a creature of d 1982 Convention, which came
into operation on 1 October 1996.
• Is a permanent Int’l. Ct with expertise in law of
the sea matters that sits in Hamburg.
• Has a Statute closely resembling that of the ICJ
• Has jurisdiction over all disputes & applications
submitted to it in accordance with d Convention &
all matters specifically provided 4 in any other
agreement w/ch confers jurisdiction on it.
• Is open to States Parties.