notes on jurisdiction at sea
21st December 2018.
Law of the Sea Convention (LOSC) is silent as to whether foreign ships have a right to access a port. (Saudi Arabia v. Aramco)
There is no definition of a ship in UNCLOS, but there is a definition of a warship. There are four conditions for a warship to be one, and it must meet all four conditions. If it does not meet all four conditions, it is not a warship. The conditions are:
1/ It belongs to the armed forces
2/ It has distinguishing marks
3/ It is in command of an officer
4/ It is manned by crew under armed forces
Why is there a definition of a warship and not a ship? A warship has state immunity. It is immune to all states except its flag state. This gives a warship a protective shield, and therefore we have to be careful of who is or who isn’t a warship.
How about other ships? A coastguard ship is a state ship, and has immunity. A state ship used for commercial purposes has restricted state immunity. If its function is for the state, it has immunity.
If a crime is committed on a ship, it’s like the crime is committed on the land of the state.
Coastal states have territorial waters 12 nautical miles from their baseline. It first began at 3 nautical miles, then 6, and now it is 12 nautical miles. The distance originated from a cannon shot rule, which is that the coastal state had sovereignty over the waters within range from a cannon shot from its shore. The cannon shot rule has no meaning now because of technology. Technology has given a huge increase in shot range, and even Putin has said that Russia’s weapons can reach any continent in the world.
So why do we still have territorial waters? Territorial waters are an extension of territory. States do not need to claim territorial waters, it is derived from sovereignty of their own land territory. Why do states have land? It is the same reason as why states have territorial sea. A state cannot have sea territory only. It needs to have land territory.
Internal waters, territorial waters. Why have two different names? Not everyone has one or the other.
Innocent Passage: Sovereignty vs jurisdiction – a working balance.
The innocent passage right of foreign warships is controversial. What about ships that carry chemicals/nuclear weapons? They are not actively a threat, but its mere existence is still a threat. Some states want notification clauses. States have a right to send warships through innocent passage.
First treaty in dividing the sea came from the Treaty of Tordesillas in 1494. It divided unknown lands between Spain and Portugal. It was the first time a geometric boundary in the sea was made.
In the 13/14th Century- the Norwegians, Danish, English and Dutch were involved more heavily in the seas.
Two theories emerged on states’ relation to the sea. Both were on opposite ends of the theoretical spectrum:
1609 – “Mare Liberum” – Freedom of the Sea by Dutch jurist and philosopher Hugo Grotius spoke about open waters. No state can claim sovereignty over the seas.
1635 – “Mare Clausum” – Closed seas by English jurist John Selden. Sovereignty of the seas by states, which are closed and not accessible to other states
In the 18th Century, the British rejected closed waters to progress their colonial expansion. In 1958, there was the first conference on the Law of the Sea – UNCLOS.
Five problems of the use of the seas:
1/ Seaward extent coastal jurisdiction
2/ Depletion of certain species due to open access character of high seas
3/ Regulation of the exploitation of mining
4/ Issue of innocent passage
5/ Maritime delimitation
Protection of the marine environment:
Reparation in law is difficult, but when it comes to environmental reparation on the seas, it is even more difficult. Article 297 of UNCLOS has never been used. For example, an oil spill case in USA. Judge was very mathematical. How many fish in the sea was affected? What types of fish? What is the price of fish in the market today? Reparation covered the cost of fish, but nothing else. It is a deficiency in our system. Need to take into account deterioration of the environment as a whole, but how do you approach that?
When it comes to jurisdiction, there are three types:
1. Territoriality – law applies because you are on my land
2. Nationality – law applies because you are a national of a state
3. Universal Jurisdiction
But, when it comes to the seas:
Flag state jurisdiction
Coastal state jurisdiction
Port state jurisdiction
There is consideration of a fourth- Personal jurisdiction – whereby the captain of the ship is responsible for the safety of his/her crew.
Jurisdiction is the link between the state and the 1/ people 2/ ship 3/ corporation. Link of nationality linked to the state. Link of territory linked to the state.
Flag state jurisdiction is an expression of nationality. Flag state jurisdiction never goes away. The legal connection to the flag stays with you at all times. Follow the nationality of the ship, without a flag, the ship is a pirate ship.
Coastal state jurisdiction –equivalent to territorial jurisdiction with the exception of innocent passage. Coastal state jurisdiction operates alongside flag jurisdiction. The closer the ship is to a coast of a state, the stronger the pull of coastal state jurisdiction. Further away from the coast- the stronger the pull of flag state jurisdiction. It’s a balance between the two.
Territory derived from history “move away from the power of the king”. When you are in the territory of the state, the law applies. When you are out of the state, the law does not apply.
Nationality and territory still link today. In Latin America- almost all exclusive prosecution cases are by virtue of territoriality. So for the sea, how do we establish a link between the land and sea?
Port state jurisdiction is a complimentary jurisdiction. Let’s say a ship left State A. State A discovers the ship has done something illegal. The ship arrives at State B. State A requests State B’s cooperation- can you arrest the persons onboard for me? State A cannot arrest them, because its outside of their jurisdiction. State B assists State A in doing so. State B can now choose to prosecute them or send them to State A.
There is no international law instrument operating oil and gas at sea. There is no obligation for States not to pollute the environment, or what to not do to pollute the environment. Oil and gas = energy. Energy is one area that states do not delegate to other countries. Energy generation is not given to European Union– all states have their own. There are no common rules for the generation of energy.
Notes taken from:
Lectures from professors/professionals at the ICJ, University of Athens and Kadir Has University.