International law of the sea

Public international law of the sea definition

rules and principles that bind states in their international relations concerning maritime matter ( in time of peace )

What is one of the main principle of the public international law ?

The prohibition of the use of force in conflict

Article 38 of the status of the international cour of justice

indicate what type of law can be used to resolve a international conflict :

- international conventions : a treaty that bond two or more state

- international custom : as evidence of a general practice accepted as law ( international law of the sea is mostly based on custom )

- the general principles of law « recognized by civilised nations » ( not as important in international law of the sea )

- judicial decisions and the teachings of the most highly qualified publicists and jurists of the various nations ( the doctrine / precedent ) , these judicial decisions cannot be sources of international law : there are just subsidiary texts

Two main principles around international law of the sea

principle of the freedom of the sea / Principle of sovereignty of coastal state over some area / Principle of share heritage of humanity

The treaty of Tortedillas

the first treaty of claim of sovereignty over a portion of sea : Spain and Portugal divided the world in two part for their empire.

What is the battle of the books concerning the law of the sea ?

it was a doctrinal battle between Hugo Grotius with his book Mare Liberum ( 1609 ) and John Selden Maren Clausum ( 1635 ).

What was the opinion of Grotius ?

the sea must be free because of its nature → not susceptible of occupation with an exception with Bay, Straits and the part of the sea that can be seen from the shore. Freedom of the sea concern only the vast ocean

What was the opinion of John Selden ?

he sea similarly to land could be subject to occupation and control by a state

What was the position accepted at the end of the battle of the book ?

the position mainly accepted was the Grotius way of thinking : freedom of the sea with the exception of a narrow band of waters adjacent to the coast

What is the cannon shot rule ?

the idea that «  the control of the land over the sea extend as far as cannon will carry as that is as far we seem to have both command and possession » : a nation's territorial jurisdiction extends to the distance its shore-based cannons can effectively fire, generally recognized as 3 nautical miles

What replaced the cannon shot rule in order to avoid the uncertainty of this rule ( the rule who is now the standard )?

the 12 miles limit : the state can clame sovereignty 12 miles

What is the Vienna convention ?

The Vienna convention codify the customary rules of the international law and the international law of the sea

Territorial sea definition

narrow sea adjacent to coastal states , coastal states exercised sovereignty, with some restrictions consisting mainly in the obligation to recognize a right of innocent passage of foreign vessels

Truman proclamation : 28 september 1945

this proclamation declared that natural ressources of the subsoil and the seabed of the continental shelf ( limited at this period to the subsoil ) can be exploited by states beyond the limit of the sovereignty of a state .

SS Lotus 1927

vessels on the high sea are subject to no authority except that of the state whose flag they fly

Corfu Channel

a state need to notify to a foreign vessel navigating in his seas of any danger

1958 UNCLOS I

first UN conference on the Law of The sea

UNCLOS II 1960

concerned the breadh of the territorial sea

UNCLOS III 1982

The most important convention of the three : The constitution of the Ocean signed by 168 parties + codification of the modern law of the sea

What are the territories where the coastal state have a territorial sovereignty ?

Internal Water / Territorial Sea / International Straits / Archipelagic Waters

What are the territories where the coastal state have sovereign rights on ?

Contiguous zone / Exclusive Economic Zone / Continental Shelf

What are the marine spaces that are beyond national jurisdiction ?

• The high seas

• the Area : the seabed, ocean floor, and subsoil beyond the limits of national jurisdiction.

What is the right of innocent passage ?

The right of innocent passage allows foreign ships to navigate through a coastal state's territorial sea (up to 12 nautical miles from shore) without prior authorization, provided their passage is " innocent ".

What are the condition of an innocent passage ?

• Innocent passage shall be continuous + expeditious : The ship must move through the waters without stopping or anchoring, unless necessary due to an emergency (force majeure), distress, or to provide assistance

• the passage need to be not prejudicial to the peace / good order / security of the coastal state

International straits definition

straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high sea or an exclusive economic zone

What is the right of transit passage ?

right of transit passage → all vessels + aircraft ( also warship and military aircraft ) have the right to pass international straits : this transit passage was created in order to not disturb the worldwide market. The transit passage cannot be suspended

What is an Archipelagic state ?

state constituted wholly by one or more archipelagos and may include other islands

What is an archipelago ?

a group of islands, including parts of islands , interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical economic and political entity or which historically have been regarded as such

What are archipelagic baselines ?

Archipelagic baselines are straight lines drawn by an archipelagic state to connect the outermost points of its outermost islands and drying reefs. These baselines define the country's maritime zones, and the waters enclosed within them are known as archipelagic waters, over which the state exercises full sovereignty.

What are the criteria required for drawing Archipelagic baseline ?

• Water-to-Land Ratio: The area of water enclosed by the baselines must be between 1:1 and 9:1 relative to the land area. This prevents states with too much land (like Australia) or too little land (highly scattered islands) from claiming this status.

• Baseline Length: Generally, no single baseline segment can exceed 100 nautical miles. However, up to 3% of the total number of segments can reach a maximum of 125 nautical miles.

• Configuration: The baselines must follow the general shape of the archipelago and include the main islands.

• Low-Tide Elevations: Lines cannot be drawn to or from features that are only dry at low tide unless they have permanent structures like lighthouses or are within the 12nm territorial sea.

contiguous zone definition

contig zone constitue a zone contiguous to its territorial sea that not extend beyond 24 nautical miles form the baselines from which the breadth of the territorial sea is measured

Did the establishment of the contiguous zone is automatic ?

No the coastal state must claim it

Baseline definition

the line from which the outer limits of marine spaces under the national jurisdiction of the coastal state are measured .

Straight baseline definition

Straight baselines are straight lines that a coastal state can use to connect points along its coastline instead of following every minor curve of the low-water mark. These lines serve as the starting point for measuring all of a state's maritime zones, such as the territorial sea and the Exclusive Economic Zone (EEZ).

Anglo Norway fisheries case

• Birth of Straight Baselines: This case provided the legal foundation for the straight baseline method now widely used by nations with jagged coasts

Bay definition

a bay is a well-marked indentation whose penetration is in such proportion to the width of it’s mouth as to contain land locked waters and constitute more than a mere curvature of the coast

What is the rule of the 24 milles marin that characterized a juridical bay ?

Si l’ouverture de la baie (la distance entre ses deux points d’entrée) est :

• ≤ 24 milles marins (~44 km) →
  L’État peut tracer une ligne de fermeture entre les deux rives.
  ➜ Toute l’eau à l’intérieur devient eaux intérieures.

• > 24 milles marins →
  On ne peut pas fermer toute la baie directement.
  ➜ On trace une ligne de 24 milles à l’intérieur, là où c’est possible.

What is the exception to the rule of the 24 milles marin concerning the bay ?

Some bay can be closed even if they don’t respect the 24 milles rules : it’s the Historical Bay

Historical bay definition

c’est une baie qui est considérée comme faisant partie des eaux intérieures d’un État, non pas parce qu’elle respecte les critères géométriques classiques, mais parce que cet État en a exercé le contrôle de façon ancienne, continue et reconnue par la communauté internationale.

What are the three condition for a historical bay to be recognized ?

an ancien and historical use by the state / effective exercice of the sovereignty / Acceptation of this sovereignty by other states.

Artic Sunrise case

A State cannot exercise enforcement jurisdiction in a manner that disregards international procedural safeguards or the flag State’s rights, including the obligation to use appropriate and proportionate measures when boarding and arresting a foreign vessel in the EEZ.

Norstar case

A coastal State may not exercise enforcement jurisdiction over a foreign vessel on the high seas or in another State’s maritime zones unless there is a valid basis under international law, and any enforcement action must respect the principle of freedom of navigation.

Enrica Lexis Case

A coastal State may exercise jurisdiction over incidents occurring in its Exclusive Economic Zone (EEZ) only within the limits permitted by the Convention des Nations unies sur le droit de la mer, and it cannot assert criminal jurisdiction over foreign State officials who enjoy immunity for acts performed in the exercise of official functions on board a State vessel.

What is the ITLOS ?

it’s the international tribunal for the law of the sea that regulate and give decision in order to resolve conflict linked to the law of the sea