User:Jose Edmundo Dayot/PIL Module 4

Sovereignty refers to the possession of ultimate legal authority within a defined territory. It consists of two aspects: de jure sovereignty, which is the moral or normative claim to the right to govern a state, and de facto sovereignty, which involves having effective power to act as the sovereign. Jurisdiction, as a concept of public international law, linked with the notion of sovereignty. It is what allows States to give effect to the sovereign independence which they are endowed with in a global system of formally equal States, through stating what the law is relating to persons or activities in which they have a legal interest.

Baselines and maritime zones

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.

Normal baselines

For the purposes of 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 baselines

In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition. Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage. The system of straight baselines may not be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone.

Archipelagic baselines

An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. The length of such baselines shall not exceed 100 nautical miles, except that up to 3% of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. Such baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island. The system of such baselines shall not be applied by an archipelagic State in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another State. If a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighboring State, existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected. For the purpose of computing the ratio of water to land, land areas may include waters lying within the fringing reefs of islands and atolls, including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau. The baselines drawn in accordance with this article shall be shown on charts of a scale or scales adequate for ascertaining their position. Alternatively, lists of geographical coordinates of points, specifying the geodetic datum, may be substituted. The archipelagic State shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.

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.

Delimitation

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. For the purposes of the United Nations Convention on the Law of the Sea (1982), 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. An indentation shall not be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water mark of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water area of the indentation. 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. The foregoing provisions do not apply to so-called "historic" bays, or in any case where the system of straight baselines is applied.

For the purpose of delimiting the territorial sea, the outermost permanent harbor works which form an integral part of the harbor system are regarded as forming part of the coast. Off-shore installations and artificial islands shall not be considered as permanent harbor works.

Legal regimes of maritime zones

Schematic map of maritime zones (aerial view).

Sovereignty is the absolute ownership of an independent state over its territory. Sovereignty of a coastal state is the ultimate right which is exercised within the limit of its internal waters and territorial sea. It is limited only by the obligations of the coastal State based on the sources of international law. On the other hand, Sovereign rights represent the rights that a coastal state enjoys basing on its sovereignty over all kinds of resources in its economic exclusive zone and continental shelf. If a right is not given by UNCLOS, such a right does not exist for the coastal State. In the exclusive economic zone, the coastal State has 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.

Internal waters

Internal and external territorial waters of the Philippines prior to the adoption of new baselines in 2009. Under Philippine jurisprudence, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. This gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights: the exercise of sovereignty over territorial waters, the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone, and the right to exploit the living and non-living resources in the exclusive economic zone and continental shelf.

Internal Waters include littoral areas such as ports, rivers, inlets and other marine spaces landward of the baseline (low-water line) where the port state has jurisdiction to enforce domestic regulations. Enforcement measures can be taken for violations of static standards while in port as well as for violations that occurred within the coastal state’s maritime zones and beyond. However, foreign vessels are not usually held to non-maritime or security port state laws so long as the activities conducted are not detrimental to the peace and security of the locale.

In the maritime security context, however, a coastal state can prevent privately contracted armed security personnel (PCASP) from entering its ports and internal waters if carriage of weapons is forbidden in national legislation. Moreover, once entering a port PCASP (and the vessel which they are aboard) can be held accountable for other violations that took place at sea if they in some way impacted the port state or for other reasons with the permission of the flag state.

Territorial sea

In the Territorial Sea, a coastal state has unlimited jurisdiction over all, including foreign, activities unless restrictions are imposed by law. All coastal states have the right to a territorial sea extending 12 nautical miles from the baseline.

In the maritime security context, it remains debated as to whether the coastal state can set and enforce laws to restrict movement of PCASP, forbid maritime security operations, including making illegal the carriage or discharge of weapons, within the territorial sea, or if enacting such legislation would be prejudicial to general freedom of navigation and the regime of innocent passage.

Contiguous zone

The Contiguous Zone is an intermediary zone between the territorial sea and the high seas extending enforcement jurisdiction of the coastal state to a maximum of 24 nautical miles from baselines for the purposes of preventing or punishing violations of customs, fiscal, immigration or sanitary legislation.

In the maritime security context, this can certainly include monitoring any activities which can result in armed violence or weapons import into the state. Therefore the coastal state can take measures to prevent or regulate armed maritime security activities out to 24 nautical miles under the reasoning that it is undertaking customs enforcement operations to prevent movement of arms into its waters or ports.

Exclusive economic zone

The World's exclusive economic zones, shown in dark blue

The exclusive economic zone is another intermediary zone, lying between the territorial sea (12 nautical miles) and the high seas to the maximum extent of 200 nautical miles. Although high seas freedoms concerning general navigation principles remain in place, in this zone the coastal state retains exclusive sovereignty over exploring, exploiting and conserving all natural resources. The coastal state therefore can take action to prevent infringement by third parties of its economic assets in this area including, inter alia, fishing, bio-prospecting and wind-farming.

In order to safeguard these rights, the coastal state may take necessary measures including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the international laws and regulations.

Continental shelf

  Global continental shelf, highlighted in light green

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.

High seas

The high seas, which lie beyond 200 nautical miles from shore, are to be open and freely available to everyone, governed by the principle of equal rights for all. In agreeing to UNCLOS, all state parties acknowledged that the oceans are for peaceful purposes as the Convention’s aim was to maintain peace, justice and progress for all people of the world. On the High Seas, no state can act or interfere with justified and equal interests of other states.

The Convention establishes freedom of activity in six spheres: Navigation, Overflight, Laying of cables and pipelines, Artificial islands and installations, Fishing, Marine scientific research.

Freedom of navigation is of utmost importance for all, and maritime security activities can be considered part of navigational activities as they protect vessels from interference by third parties.

Archipelagic waters

If the country is an archipelago or has an archipelago under it, a baseline is drawn between the outermost points of the islands, provided that these islands are close to each other. All water inside this is called Archipelagic Waters. The state has full sovereignty over these waters very much similar to the internal waters and the foreign vessels are allowed for innocent passage through archipelagic waters.

Principles of maritime delimitation

If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the States claiming sovereignty possesses a title superior to that which the other State might possibly bring forward against it. However, if the contestation is based on the fact that the other Party has actually displayed sovereignty, it cannot be sufficient to establish the title by which territorial sovereignty was validly acquired at a certain moment. It must also be shown that territorial sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must be considered as critical.

Maritime delimitation is a principle with regard to aspect of territorial sovereignty between states, which can be useful for the international sea territorial disputes resolving.

Equidistance principle

UNCLOS introduced the distance criterion or principle into the definition of the continental shelf in Article 76 (1), UNCLOS. In the Tunisia/Libya case, the Court recognized the distance criterion and in the Libya/Malta case it introduced it as a principle of international law. There the Court established the distance criterion as the sole basis of title to the seabed and subsoil within the 200-nautical-mile limit. These developments led to the conclusion that “there is no reason to ascribe any role to geological or geophysical factors within that distance, i.e., within the 200-mile limit, either in verifying the legal title of the States concerned or in proceeding to a delimitation as between their claims.

It became obvious that the introduction of the distance criterion would enhance the role of proximity in the delimitation of maritime boundaries within the 200-mile limit. It was reasonable to expect this to happen. Consequently the emergence of the distance principle as a primary basis for a coastal state’s entitlement should have had more influence regarding equidistance as a method of delimitation. However, the Court viewed that the introduction of the distance criterion did not confer any special status on the equidistance method of delimitation. This was the case with regard to a general rule or as a mandatory method of delimitation. Nor did the Court require that a “priority method, to be tested in every case.” The Court warned that the drawing of a median line constituted an appropriate step. Moreover, it asserted that delimitation should not be understood as implying that an equidistance line will be an appropriate starting point in all cases; even in all cases of delimitation between opposite states.

Principle of Equity

Equity corresponds largely to common sense. It is a standard of reasonableness that seeks balance and equilibrium between the rights and obligations of parties in dispute. It is widely accepted that maritime boundaries must be determined by the application of equitable principles, taking account of all the relevant circumstances to achieve an equitable result. As a legal principle, equity is not susceptible to immediate application to a case. Its content can only be recognized by relative optimization, and recognition of all factual and legal possibilities in casu. The task of the judge is to produce an equitable and just result on each individual case. To reach equity, the judge has to take into account the relevant circumstances of each particular case not only by balancing the various circumstances, but also by complimenting or articulating the interests of the parties.

Thus, UNCLOS grants States and third parties the responsibility to devise a maritime boundary. A wide scope is left for considering a range of sources for ascertaining what would be an equitable solution in the circumstances of each case. It is not possible to identify a universal standard that could be applied in all maritime delimitations. Moreover, as to what constitutes an equitable result varies in accordance with the geography of each of the relevant areas104. Hence, the cases may indicate what factors can be considered in delimitation. However no guidance is provided with respect to how factors relevant to delimitation are to be balanced or weighted. As a consequence, the failure of states to arrive at an agreement on maritime delimitation is not widely due to a difference in interpretation over the rules of international law but rather a difference of opinion on what constitutes an equitable solution.