United Nations Convention on the Law of the Sea (UNCLOS)

The United Nations Convention on the Law of the Sea recognises the sovereignty of coastal states extending over to the territorial sea. It also recognises the rights and limitation and the agreement between the signatory states in regard to the right of use of the territorial sea.

Article 2(1) of the United Nations Convention on the Law of the Sea (UNCLOS) recognises that the sovereignty of a coastal state extends to the adjacent belt of sea, which is known as the territorial sea. Article 2(2) provides that such sovereignty extends to the bed and subsoil of the territorial sea. In this regard, UNCLOS validates the sovereignty of Soonos over its territorial sea extending to its bed and subsoil.

Soonos must note that according to Article 3, the breadth of the territorial sea of a state is up to 12 nautical miles. Such breadth is measured from baselines. States to the UNCLOS agreed to the 12 nm territorial sea with the assurances of navigational rights, particularly the regime of transit passage through straits, and of the coastal state to have control over the resource and marine scientific research in the 200 nm exclusive economic zone.

According to Article 5, the normal baseline for measuring is the low-water line along the coast. According to Article 4, the outer limit of the territorial sea is the line “every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.” Accordingly, Soonos’ its territorial sea cannot extend beyond 12 nautical miles, and not 13 nautical miles that it claims, from baselines. However, it can control its resource and marine scientific research in the 200 nm exclusive economic zone.

Given the sovereignty claim of Soonos over its territorial sea, this advise will address the extent of the freedom of navigation in territorial sea of a coastal state in order to address the incidents involving with Elferos, Harmos, Molenos and University of Harmos

Extent of the freedom of navigation

The freedom of navigation could be found in the right of innocent passage through the territorial sea. According to Article 17, ships of other States can have innocent passage through the territorial sea of Soonos. This means that a foreign flagged vessels are entitled on an unimpeded passage if their voyage is innocent.

Passage, according to Article 18, is traversing through the territorial sea of Soonos without entering its internal waters or calling at a port. It also includes navigating through the territorial sea in order to proceed to or from the internal waters or to call at a port. According to Article 24, Sonnos cannot impose any requirement that denies or have the effect of denying or impairing the right of innocent passage or discriminating against ships of other states.

According to Article 19(1), a passage is innocent when it is not prejudicial to the peace, good order or security of Soonos. According to Article 19(2), a passage will be prejudicial if the territorial sea of Soonos 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. 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.

The right to innocent passage is subject to the notice or permission of a coastal state. The UNCLOS recognises the right to innocent passage subject to safeguards provided by international agreements. However, such condition is considered incompatible with the UNCLOS. This is reported in the UN Secretary General report of 2004. There have been instances of some coastal states that invoked principles of international environmental law and prohibited passage or insisted on prior notification. Maritime powers have also protested the condition of prior notice or permission of passage.

According to UNCLOS, Article 18, a passage through the territorial sea of Soonos shall be continuous and expeditious. Further, this article provides that any passage can also include stopping and anchoring if they are incidental to ordinary navigation or if they become necessary because of force majeure or distress. UNCLOS does not expressly provide a procedure that a coastal state can take to halt a non-innocent passage in order to prevent vessels of other states from continuing. However, there are commonly used methods. Soonos can give verbal warning, position its vessels to prevent any offending vessel from proceeding, fire warning shots, and board the offending vessel.

The right to innocent passage cannot be absolute. Article 21 allows Soonos to enact laws in compliance with UNCLOS in order to control innocent passage. Article 25 also allows Soonos to take necessary steps to prevent passage in its territorial sea that is no innocent. Soonos, a coastal state, can prescribe and enforce such laws and regulations necessary to protect its sovereignty. Such laws and regulations cannot, however, unreasonably hamper the right of innocent passage, as is provided under Articles 21 and 24. For example, the 1991 and 1992 Decrees of Italy that prescribed activities and prohibited ships from transit, stopping and anchoring in the areas within 1 nm from the islands of Pianosa and Asinara where the high security prisons were located. Similarly, Spain and the United Kingdom regulated the anchoring in their territorial seas to end the parking of tankers. For example, Spain passed the Order on the Regulation of Anchoring by Tankers in Jurisdictional Waters or the Exclusive Economic Zones of Spain, of 17 April 1991, Article 2 employed the system of prior authorization.

The UK had the Merchant Shipping Act 1995, s100c empowering the government to order any foreign ships to be moved from the territorial sea. The concerned activities addressed by the Order or by the Act were not considered incidental to ordinary navigation, as per Article 18(2). Section 130 of the UK Act 1995, also allowed the regulation of the transfer of stores, cargo, ballast between ships or bunker fuel in the territorial sea to prevent danger to health or navigation, prevent pollution, or hazards to environment or natural resources. These activities cannot be considered an exercise of innocent passage. Similarly, the Netherlands also passed the 27 February 1996 Decree Establishing Shipping Regulations for the Territorial Sea, which Article 8 empowers the state to subject any anchoring in parts of territorial sea to prior consent.

A coastal state can also bump off offending vessels. This was seen in the incident where two small Soviet warships in the Black Sea bumped off the US Navy cruiser Yorktown and destroyer Caron on 12 February 1988. ‘Bumping’ is a commonly used word that describes the physical nudging away of other state’s vessels from the shore.

The right to innocent passage includes stopping or anchoring in distress. Distress means a danger to the cargo, the ship or the crew to the extent a reasonable master of a ship is put in fear of losing the cargo, the ship or the crew. Such danger may arise from different factors, such as severe weather, heavy seas, or lack of fuel, store and water. A state can enter the territorial sea of another in case of danger or distress from the perils of the sea. Such right to assistance entry is not subject to permission of the coastal state. It needs to give notification of the entry.

Application to the incidents

In Elferos submarine case, Soonos must note that Article 3 provides the breadth of the territorial sea of a state is up to 12 nautical miles. The submarines were a point 13 nm removed from its baselines. Thus, Elferos has not breached the territorial sea of Soonos. If they come in the territorial sea of Sonoos, it can enforce Article 20, which will require the submarines and other underwater vehicles of Elferos to navigate on the surface and to show their flag.

In case of Harmos vessel, it is within the 12nm territorial sea of Soonos. The provision of Article 18, which provides for incidental stopping and anchoring will apply here. Minor repairs cannot be considered distress or force majeure situation as the situation does not pose any danger to the cargo, the ship or the crew. Soonos can enforce Article 21 and pass laws to control such innocent passage, according to Article 19, which does not disrupt the peace, good order or security of Soonos without unreasonably hamper the right of innocent passage.

Such innocent passage, including anchoring may require prior permission of Soonos and prior notification of the entry, which was also done by Spain in 1991 and by the Netherlands thought its 1996 Decree.

In Molenos, case, Article 19(2) applies and fishing activities without the permission is prejudicial as they are conducted in the territorial sea of Soonos. Such activities cannot be held to have any direct bearing on innocent passage.

In case of the vessel operated by the University of Harmos, Article 19(2) applies and such carrying out of any research or survey activities without the permission is prejudicial as they are conducted in the territorial sea of Soono. Such activity does not have direct bearing on passage. Such activities are subject to the prior notification or permission of Soonos. Soonos can subject such activities to safeguards provided by an international agreement with Harmos.

Soonos can also control its resource and marine scientific research in the 200 nm exclusive economic zone.

Article 17 allows innocent passage through the territorial sea. However, the passage in question cannot be considered innocent or incident to the right of innocent passage. It is, according to Article 19, prejudicial to the peace, good order or security of Soonos.

Article 25 allows Soonos to take necessary steps to prevent passage in its territorial sea that is no innocent, which is the concerned case in question. Soonos can give verbal warning, position its vessels to prevent any offending vessel from proceeding, fire warning shots, and board the offending vessel. It can also bump off the offending vessels just like what the Soviet warships did to the US Navy cruiser Yorktown 1988.

Soonos can also enforce its Military Manoeuvres Act 2005 against Elferos as allowed under Article 25. The Act requires another state to take prior approval from the Soonos Ministry of Defence before entering the Soonos territorial sea. Soonos can also follow Italy’s example of its 1991 and 1992 Decrees that prohibited ships from transit or the UK Merchant Shipping Act 1995, s100c that empowered UK to remove foreign ships from the territorial sea. It can also enter into an international agreement to regulate such activities.

Other steps that Soonos can take

A flag state jurisdiction. Soonos, as a coastal state, does not enjoy exclusive competence in its territorial sea. Article 2(3) provides that the exercise of its rights is subject to the provisions of the UNCLOS and the rules of international law. One of the rules is that of the navigation regimes, which recognise the rights of flag states. A flag state jurisdiction is a means of maintaining legal order over activities at sea. According to Article 20, in the territorial sea of Sonoos, submarines and other underwater vehicles of other states are required to navigate on the surface and to show their flag. Sonoos, according to Article 90, may grant another state the right to sail under its flag on the high seas.

Contiguous zone. Soonos can proclaim a contiguous zone, which is seaword of its territorial sea. In this zone, Soonos can enforce its fiscal, customs, immigration and sanitary laws applicable with its territorial sea.

Traffic regulation. According to Article 22(1), Soonos can regulate the sea lanes and traffic separation schemes in its territorial sea and require states enjoying the right of innocent passage to use sea lance and traffic separation schemes that Soonos may prescribed.

Books

Miyoshi M, ‘Ocean Transport of Radioactive Fuel and Waste: A Japanese Perspective’ in DD Caron and HS Scheiber (eds.), The Oceans in the Nuclear Age (Martinus Nijhoff Leiden 2010)

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)

Naval War College (U.S.). Oceans Law and Policy Dept, Annotated Supplement to The Commander's Handbook on the Law of Naval Operations (Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College 1997)

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)

Rothwell DR, ‘Innocent Passage in the Territorial Sea: The UNCLOS Regime and Asia Pacific State Practice’ in Donald R. Rothwell and Sam Bateman, Navigation Rights and Freedoms and the New Law of the Sea (Springer Netherlands)

Stephens T and DR Rothwell, ‘The LOSC Framework for Maritime Jurisdiction and Enforcement 30 Years On’ in D Freestone (ed.), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (Martinus Nijhoff Leiden 2013)

Journals

Hilt Jr JC, ‘Ocean Law and Superpower Relations: The Bumping of the Yorktown and Caron in the Black Sea’ (1989) 29 VaJIL 713-743.

Reports

United Nations Secretary General, Oceans and the Law of the Sea: Report of the Secretary-General, UN Doc A/59/62 (2004)

Dig deeper into Understanding The Nexus Between Socio Economic Background with our selection of articles.