Conflicts and Rights under UNCLOS 1982

Introduction

The current issues involves addressing conflicts of claims and rights between the …regarding territorial sea, contiguous zone and exclusive economic zone. In this regard, the certain provisions of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) applicable to the given situations will be referred here.

Coastal states are given sovereignty under UNCLOS over the territorial sea. UNCLOS recognises certain rights and limitation of its signatories in regard to the use of the territorial sea. The following paragraphs will deal with the four given situations:

The first situation

This first situation involves determining whether or not Statlerian warship has a right to anchor to conduct minor engine repairs given UNCLOS provisions of right of innocent passage.

UNCLOS was signed by its signatories agreeing to 12 nm territorial sea, navigational rights of transit passage through straits, and control of the coastal states over the resource and marine scientific research in 200 nm exclusive economic zone. Accordingly, UNCLOS provides that the extent of the sovereignty of a coastal state is up to the adjacent belt of sea, known as the territorial sea, including its bed and subsoil. This sovereignty covers the breadth of the territorial sea up to 12 nautical miles measured from the baselines. Accordingly, Waldorfia has a valid sovereignty over its territorial sea extending to the breath of 12 nautical miles. It, thus, possess the right to protect its sovereignty. Reading this provision with the current situation, the question is whether Suk has a right to passage and anchor as is given in the case.

Passage means traversing through the territorial sea of a coastal state without entering its internal waters or calling at a port. This means a vessel navigates through the territorial sea of a coastal state so as to proceed to or from the internal waters or to call at a port. UNCLOS recognises the right of innocent passage of a vessel of another state through the territorial sea of another coastal state. The innocent passage provision applies to all the ship including merchant vessel and submarine navigation, launch of military devices, use of force and weapon practice. A foreign vessel, if flagged, is entitled on an unimpeded passage if their voyage is innocent. In this case, Suk is a Statlerian warship and is a foreign flagged vessel. It has a right to innocent passage. Whether its anchor is allowed under UNCLOS has to be seen reading Article 18 that provides right to vessels for incidental stopping and anchoring. However, such passage must be continuous and expeditious except for stopping and anchoring that are incidental to ordinary navigation. Applying in the current situation, Statlerian has the defence of incidental stopping and anchoring to carry out the repair, which is incidental to ordinary navigation.

In this situation, Waldorfia can enact laws complying with UNCLOS so that it can control innocent passage. As a reference point, Netherlands passed the Decree Establishing Shipping Regulations for the Territorial Sea on the February 27, 1996 and through its Article 8 the Netherlands could subject any foreign vessels’ anchoring in its territorial sea to the prior consent of the authority. UNCLOS empowers the signatory states to regulate sea lanes and traffic within their sovereignty. In addition to this right, Waldorfia can prevent passage of any foreign vessels if such passage is not innocent. Such steps and rights must be reasonable and not hinder the right of innocent passage provided by UNCLOS. Following such steps, UNCLOS will empower Waldorfia to require immediately any foreign warships that do not comply with its laws and regulations concerning passage through its territorial sea to leave its territorial sea.

The second situation

The second situation concerns exercise of coastal state jurisdiction over Shostakovich. Such jurisdiction provides authority to Woldorfia to investigate or prevent occurrences dangerous or detrimental to Woldorfia. It must be noted that UNCLOS subjects the exercise of its rights to the provisions of the UNCLOS and the rules of international law.

As seen earlier, UNCLOS empower a coastal state to protect its sovereignty extending to the breadth of the territorial sea up to 12 nautical miles measured from the baselines. Such sovereignty extends to the bed and subsoil of the territorial sea. In this situation, Shostakovich was at point 13 nm from the baselines of Waldorfia. Does this situation still warrant Waldorfia to tack action against Shostakovich or to enforce its Waldorfian Military Manoeuvres Act 2005, S12?

UNCLOS provides for sovereign rights of a coastal state if a passage is not innocent, and is prejudicial if the territorial sea of a coastal state is engaged for any fishing activities, carrying out of any research or survey activities; or any such activity that does not have direct bearing on passage. Any submarines and other underwater foreign vehicles in the territorial sea must navigate on the surface and to show their flag.

In this current situation, Shostakovich is a military Statlerian submarine observed underwater at a point 13 nm from the baselines of Waldorfia. As such, Waldorfia cannot exercise its coastal jurisdiction. The passage cannot be prejudicial as the passage was not within Waldrofia’s territorial sea. It cannot require Shostakovich to navigate on the surface and to show their flag. Point 13 nm is not within the bed and subsoil of the territorial sea of Waldorfia and it does not have any sovereignty.

The third situation

This third situation concerns the exclusive economic zone (EEZ) jurisdiction of Waldorfia and the mode of regulating EEZ as per the law of the sea. UNCLOS offers a coastal state jurisdiction in exclusive economic zone (EEZ) regarding marine scientific research and protection and preservation of its marine environment. This situation will concern determining whether or not Waldorfian was legally justified in taking action against Prokofiev given that a coastal state EEX concerns all living and non-living maritime resources.

EEZ is adjacent to and extends beyond and the territorial sea. The breadth of EEZ must not extend beyond 200 nautical miles measured from the baselines used to measure the breadth of the territorial sea. UNCLOS provides Waldorfia the sovereign rights to explore, exploit, conserve and manage the natural resources of the seabed and its subsoil and of waters superjacent to the seabed. Such sovereign rights extend over economic exploitation and exploration of EEZ, including energy production from water, currents and winds. The EEZ jurisdiction also extends over marine scientific research and protection and preservation of the marine environment. Given the rights and jurisdiction of a coast state over its EEZ, another state must respect the rights and duties of Waldorfia and must comply with Waldorfia’s laws and regulations. This is because marine scientific research activities in the EEZ and continental shelf cannot unjustifiably interfere with activities undertaken by a coastal state in the exercise of its sovereign rights and jurisdiction.

UNCLOS entitles a coastal state to regulate, authorise and conduct marine scientific research in their own exclusive economic zone. Any marine scientific research by Statlerian in the exclusive economic zone of Waldorfia must be conducted with the consent of Waldorfia. Thus, if Statlerian intended to undertake marine scientific research in the exclusive economic zone of Waldorfia must provide information, including nature and objectives of the project to Waldorfia not less than six months before the expected starting date of the project. In the current situation Prokofiev had applied for a permit nine months earlier. This means that it complied with the legal formalities. Prokofiev can claim that Waldorfia has the duty not to unreasonably delay or deny, in normal circumstances, their consent for projects that are exclusively for peaceful purposes and to increase scientific knowledge of the marine environment for the public good. For such grant of consent, there must be normal circumstance irrespective of absence of diplomatic relations. Given the long history of difficult political relations between the two states and the events that have happened as raised in the given situations, the two states cannot be stated to be under normal circumstances. As such, Waldorfia can withhold its consent as it is of direct significance for the exploration and exploitation of natural resources, which in this case involves rare fish species and red herring.

This discretion is not needed when the project is conducted beyond 200 nautical miles. The most important point here that Waldorfia must not is that of implied consent. Prokofiev can claim that it has implied consent since they applied for permission 9 months ago and the law requires that it can proceed with the project after six months of their application and that Waldorfia did not within the four months of their application inform them of their decision to withhold their consent. Waldorfia cannot claim that it did not need to apply its discretion as the project was not beyond 200 nautical miles. Waldorfia, in future, can withhold its consent entirety or prohibit or condition any such projects that are intrusive or involve unique maritime resources. Such term can be imposed given the long difficult political relations with Statlerian and that projects such as the one in question. involving the rare maritime resource are environmental grounds for withholding consent.

The fourth situation

UNCLOS provides that a coastal state, such as Waldorfia, may claim a contiguous zone (CZ) extending up to 24 nautical miles beyond its land territory or internal. Within its CZ, Waldorfia can place necessary measures to prevent infringement of its fiscal, customs, immigration or sanitary laws and regulations within its territorial sea or territory. Waldorfia can punish any infringement of such laws and regulations. In this current situation, Waldorfia has a 8 nautical miles CZ as per its Waldorfian Defence of the Realm Act 1999, Section 32. Accordingly, Waldorfia has the right to secure it CZ. However, is Waldorfia legally justified in conducting the hot pursuit and causing the events that it has caused including the killing of one national of the Republic of Statler. This will be addressed by reviewing the law on the right of hot pursuit.

Waldorfia has the right to hot pursuit of a foreign ship if it has a good reason to believe that the ship has violated its laws and regulations. The pursuit commences when the foreign ship or one of its boats is within its internal waters, the archipelagic waters, the territorial sea or the contiguous zone. The pursuit can be continued even outside the territorial sea or the contiguous zone if it is not interrupted. Such pursuit is allowed only in case of violation of the Waldorfia’s rights to protect the CZ. In this case, the foreign vessel, Statlerian-flagged Scriabin was observed 18 nm. This prevented Waldorfia from pursuing Scriabin as Section 32 of the Waldorfian Defence of the Realm Act 1999 gives Waldorfia a claim of a contiguous zone of 8 nautical miles. Even more, Scriabin was beyond the 12 nm territorial sea territorial sea jurisdiction. Even if in regard to its territorial and contiguous zone jurisdiction, Waldorfia does not have the right to pursuit Scriabin, its right to pursuit arises due to its rights over its exclusive economic zone. As seen earlier, Waldorfia’s sovereignty and jurisdiction over its EEZ extends to 156 nautical miles. UNCLOS gives Waldorfia the right to pursuit. Such pursuit is to prevent violation of its EEZ, and relevant laws and regulations, including the Waldorfian EEZ Fisheries Protection Act 2006.

UNCLOS provides certain provisions governing the commencement and ending of the pursuit and remedy for violation of such procedures. A pursuit must be undertaken by warships or military aircraft or a ship or aircraft clearly marked. It commences after the pursuing ship is satisfied that the foreign ship is within its territorial sea, contiguous zone or the exclusive economic zone. It commences after it gives the foreign ship a visual or auditory signal to stop at a distance sufficient for the foreign ship to see or hear. The pursuit will stop if the foreign ship entered its territorial sea or that of a third State. These conditions were stressed over by the International Tribunal for the Law of the Sea (ITLOS) in its judgment of 1 July 1999 in the case of The M/V ‘Saiga’ (No 2).

In the current case, Waldorfia had satisfied itself that the navigation of Scriabin 18 nm from the baselines of Waldorfia warranted further investigation. Scriabin was within the EEZ of Waldorfia. Its warship Brahms commenced its pursuit accordingly. However, it did not comply with the warning procedure. It did not give Scriabin a visual or auditory signal to stop at a distance. As such, the hot pursuit cannot be validated by law. The Waldorfian Defence of the Realm Act 1999 does not seem to comply with the UNCLOS procedural requirement. Its standard operating procedure to apprehend vessels at night in full radio silence is a non-compliance of UNCLOS’s provision on right to hot pursuit. Accordingly, Statlerian can seek remedy against Waldorfia. UNCLOS provides that if a ship is stopped or arrested outside the territorial sea in circumstances that do not justify the exercise of its right of hot pursuit, the party harmed must be compensated for any loss or damage. Accordingly, Waldorfia’s response that its operation was carried out in full compliance with international law of the sea cannot hold ground and it will be held responsible for the death. Statlerian must be compensated for the damages caused by Waldorfia. Take a deeper dive into The Lanchashire Vessel Incident and the Faulty Equipment Act with our additional resources.

Conclusion

In regard to situation such as the first, Waldorfia can enact laws to control innocent passage within it claimed 12nm territorial sea, which is this case will be advance consent in regard to innocent passage including incidental stopping and anchoring. In regard to the situation involving coastal state jurisdiction such as the second situation, Woldorfia can investigate or prevent occurrences dangerous or detrimental to its sovereignty within 12 nautical miles. In the current situation, it cannot exercise this right as Shostakovich was at 13 nm. In regard to the EEZ, Woldorfia may enact its Waldorfian EEZ Fisheries Protection Act 2006 to extend its claim of EEZ from 156 nm to over 200 nautical miles as allowed by UNCLOS. It must be particular about its procedure of giving or withholding consent. Given that its political relationship with Statlerian is strained, it can altogether deny them consent to enter it EEZ. In regard to right of hot pursuit, Waldorfia must strictly follow the procedures required by the law of the sea.

Legislation

United Nations Convention on the Law of the Sea 1982

Books

Noyes JE, ‘The Territorial Sea and Contiguous Zone’ in Donald R Rothwell, Alex G Oude Elferink, Karen N Scott and Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea (Oxford University Press 2015) 94.

Molenaar EJ, ‘Navigational Rights and Freedom in a European Regional Context’ in Donald Rothwell, Sam Bateman and Walter Samuel Grono Bateman (eds.), Navigational Rights and Freedoms and the New Law of the Sea (Springer Netherlands 2000)

Tuerk H, ‘Landlocked and Geographically Disadvantage States’ in Alex G. Oude Elferink, Donald Rothwell, Karen Nadine Scott, and Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea (Oxford University Press 2015)

Dux T, Specially Protected Marine Areas in the Exclusive Economic Zone (EEZ): The Regime for the Protection of Specific Areas of the EEZ for Environmental Reasons under International Law (LIT Verlag Munster)

Brownlie IM, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (Oxford, 5th ed. 1998)

Gilmore WC, ‘Hot Pursuit’ in Marc Weller ed.), The Oxford Handbook of the Use of Force in International Law (Oxford University Press 2015)