1/ International Law Law of the Sea (Two weeks) Instructor: Asst. Prof. Sami Doğru Çağ University Spring Semester 2016

2/ Materials 1)International Law, Malcolm M. Shaw QC, Cambridge University Press, 2007 (p ). 2)Law Among Nations: An Introduction to Public International Law, Von Glahn, G., & Taulbee, J.L. New York: Pearson, 2010 )p ).

3/ Overview of Objectives 1. The History of the Law of the Sea 2. General Principles 3. Maritime Boundaries and Jurisdictional Principles a. Internal Waters b. Gulf and Bay c. Islands d. Archipelagic Sate

4/ Law of the Sea 1. The History of the Law of the Sea - Oceans and seas cover 70 percent of the earth’s surface.

5/ Law of the Sea 1. The History of the Law of the Sea - The seas have historically performed two important functions: * As a vital conduits for travel and commerce, * As a reservoir of resources.

6/ 1. The History of the Law of the Sea - The seas were at one time thought capable of subjection to national sovereignties. - In , The Pope divided the known oceans and newly found overseas territories between Spain and Portugal, then the two leading seagoing powers in Europe. This concept was defined as “Closed Sea (Mare Clausum)” which proclamaid by John Selden who is an English jurist and a scholar of England's The 1494 Tordesilhas Treaty meridian dividing the world between Portugal and Castille/Spain (purple)

7/ 1. The History of the Law of the Sea - The Portuguese in pariticular in seventeenth century proclaimed huge tracts of the high seas as part of their territorial domain. - But these claims stimulated a response by Hugo Grotius who is the ‘father of the law of the sea’. Grotius elaborated the doctrin of the ‘open seas (Mare Liberum)’, whereby the oceans as ‘res communis’ were to be accessible to all nations but incapable of appropriation Hugo Grotius ( ) worked as a jurist in the Dutch Republic

8/ - The doctrin of the open sea, in other word, ‘the freedom of the high seas’ did not take hold until the early nineteenth century. - The freedom of high seas rapidly became a basic principle of international law, but not all seas were so characterised. 1. The History of the Law of the Sea

9/ - It was permissible for a coastal state to appropriate a maritime belt around its coastline as ‘territorial waters’, or ‘territorial sea’. - Beyond the territorial water, other jurisdictional zones have been in process of development. 1. The History of the Law of the Sea Contiguous zone

10/ - The law has developed considerably since the end of the II. World War: * In 1945 United States, President Truman claimed a right to exploit the seabed and subsoil of the continental shelf. 1. The History of the Law of the Sea Continental shelf

11/ - The law has developed considerably since the end of the II. World War: * The 1950s saw a dramatic rise in the number of claims and disputes involving the sea, * And technological advances, together with changes in fishing methods, led to a realisation that there was a need for a clarification of the law. 1. The History of the Law of the Sea

12/ - In response, states made an effort to codify the existing ‘customary law’. Under the sponsorship of the United Nations (UN), states assembled in Geneva in 1958 (I. United Nations Conference on the Law of the Sea, UNCLOS I). 1. The History of the Law of the Sea

13/ I.Ceneva Conference produced 4 conventions: 1) The Convention on the Territorial Sea and Contiguous Zone which entered in to force on 10 on September ) The Convention on the Continental Shelf which entered into force on 10 on June ) The Conventionon on Fishing and Conservation of of the Living Resourcesof of the High Seas which entered into force on 20 on March ) Convention on the High Seas, which entered into force on 30 on September The History of the Law of the Sea

14/ - Because a number of issues, particularly the width of the territorial sea, remained unresolved despite the draft convention, the UN sponsored a second conference (UNCLOS II) in But this second meeting failed to resolve the outstanding issues. So this conference didn’t produced a convention. 1. The History of the Law of the Sea

15/ - The year 1960 was particularly interesting, because 17 new states emerged and were accepted into the UN. * Over the next decade, the membership of the organisation would grow from 82 in 1959 to 127 in * By 1979, membership had olmost doubled the 1959 total, standing at 152. * Currently, membership stands at 193 after the second expansion in the wake of the break of Yugoslavia and Soviet Union. 1. The History of the Law of the Sea

16/ - A third UN conference on the issues began in 1973, producing a convention (UNCLOS III) that opened for signature in * The US and number of other leading sea power refused to sign the convention because of objection to the proposed creation of an International Seabed Authority that would control “mining” or other activities connected with the seabed. * Other states, such as France, Italy and Japan, while signing initialy, indicated that unless modified, their governments would not submit the treaty for ratification. 1. The History of the Law of the Sea

17/ * The Convention entered into force in accordance with its article 308 on 16 November 1994, 12 months after the date of deposit of the sixtieth instrument of ratification or accession. * The states of EU, Japan and Russian Federation have now ratified UNCLOS III, * The US did not sign the original convention, and remains as only major maritime nation that has not ratified (accessed to) that treaty. * This convention isn’t signed by Turkey too. 1. The History of the Law of the Sea

18/ * The Convention (UNCLOS III) comprises 320 articles and 9 annexes. * The Convention govern all aspects of ocean space, such as; - Delimitation, - Environmental control, - Marine scientific research, - Economic and commercial activities, - Transfer of technology, - The settlement of disputes relating to ocean matters. 1. The History of the Law of the Sea

19/ - Many of the provision in the 1982 Convention repeat principles enshrined in the earlier instruments and others have since become customery rules, but many new rules proposed. - All states are prima facie bound by the accepted ‘customary rules’, while only the parties to the five treaties involved will be bound by the new rules contained therein. 1. The History of the Law of the Sea

20/ - Since one must envisage some states not adhering to the 1982 Convention, the 1958 rules will continue to be of importance. - Turkey object to the provision of the article 3 of the 1982 Convention from the begining, which permits costal states to claim territorial sea up to 12 nautical miles (NM). 1. The History of the Law of the Sea Territorial sea 12 NM

21/ 2. General Principles - The seas present an additional set of issues because of competing claims to resources. - As with any question of jurisdiction, with ships, the first question asked is where did the incident happen?

22/ 2. General Principles Nationality: Juristiction follows the flag - Ships have nationality. - Every ship outside of its own territorial jurisdiction must fly a flag indicating the state of registry. - ‘Jursidiction fallows the flag’ (Article, 91, UNCOS III).

23/ 2. General Principles Nationality: Juristiction follows the flag - In term of jurisdiction, where normally territoriality stands at the top of the hierarchy of jurisdictional principles, in cases involving the law of the sea, “nationality” in terms of registry may confer “territoriality” with respect to the exercise of jurisdiction over person and events on board.

24/ Nationality: Juristiction follows the flag - But the “territoriality” (mülkilik) derived from nationality accorded to ships is not absolute (unless they are warships). - It does mean that state laws and regulations apply to most acts undertaken aboard the vessel, but the ascription of ”territoriality” from the standpoint of national law and established practice does not necessarily stand at the top of the hierarchy of principles in determining resolution of problems associated with concurrent jurisdiction from standpoint of international law. 2. General Principles

25/ Nationality: Juristiction follows the flag - The law of ‘flag state’ governs matters relating to international affairs aboard a ship, including discipline. - Within ports (internal waters) or territorial seas and contiguous zones, a ship must obey the host country’s navigation and similar regulations. - Informal pragmatic “rules of thumb ”(pratik kural) often settle matters of concurrent jurisdiction over incidents that occur in these areas. - On the high seas, the law of the flag state prevails. 2. General Principles

26/ From the late seventeenth century until mid-twentieth century, the sea had only three divisions: * Internal waters (ports), * The territorial sea (and contiguous zone), * The high seas. Territorial Sea İnternal Waters High Seas 3. Maritime Boundaries and Jurisdictional Principles

27/ After the signing 1982 Convention (UNCLOS III) the sea has five different zones: 1) Internal waters (Port), 2) Territorial seas, 3) Contiguous zones, 4) Exclusive economic zones (EEZ), 6) Continental shelf, 7) High Seas. Contiguous zone High Seas 3. Maritime Boundaries and Jurisdictional Principles

28/ 3. Maritime Boundaries and Jurisdictional Principles

29/ a. Internal Waters - Internal waters are to be found on the landward side of the base lines from which the width of the territorial and other zones is measured, and are assimilated with the territory of the state. Land İnternal waters Baseline 3. Maritime Boundaries and Jurisdictional Prinsiples

30/ a. Internal Waters - Internal waters includes; * Ports, * Harbours, * Lake, * Rivers, * Canals 3. Maritime Boundaries and Jurisdictional Principles

31/ a. Internal Waters - Internal waters are deemed to be such parts of the seas as are not either the high seas or relevant zones or the territorial sea, and are accordingly classed as appertaining to the land territory of the ‘coastal state’. - A state has an exclusive right to exploit and control those areas. 3. Maritime Boundaries and Jurisdictional Principles

32/ a. Internal Waters - In theory, a coastal state has the right to refuse entry to its harbors and ports (internal waters) to any ship except one in distress. 3. Maritime Boundaries and Jurisdictional Principles

33/ a. Internal Waters * Because most states actively promote trade, the really important questions normally involve the “status of ships” once in port, not their right to enter. * For ‘merchant ships’, a right of entry is presumed unless a state has expressly indicated otherwise. 3. Maritime Boundaries and Jurisdictional Principles

34/ a. Internal Waters * But for warship, needed to obtain permission from port state. 3. Maritime Boundaries and Jurisdictional Principles

35/ a. Internal Waters - In general, a coastal state may exercise its jurisdiction over foreign ships (private ships) within its internal waters to enforce its laws. - But the judicial authorities of the flag state may also act where crimes have occurred on board ship. As a matter of customary law, except under extraordinary circumstances, a port state does not have the right to interfere in the internal operation of the ship. 3. Maritime Boundaries and Jurisdictional Principles

36/ 1. Internal Waters - Warships constitute another category. * Warship has absolute immunity from civil and criminal jurisdiction in port. * But warship and crew are expected to obey the rules and regulations of the port state while visiting. * If asked to leave by state authorities, a warship must do so. 3. Maritime Boundaries and Jurisdictional Principles

37/ Flag state Flag state is the state whose flag the particular ship flies. For this warship ‘flag state’ is Turkey 3. Maritime Boundaries and Jurisdictional Principles

38/ Baseline: It is the line where the maritime jurisdictional area to be measured. The low-water mark around the coasts of the state. The width of the state territorial sea is defined from baseline. Baseline 3. Maritime Boundaries and Jurisdictional Principles

39/ b. Gulf and Bay: - Many gulfs and buys run deep into the territory of the coastal state. 3. Maritime Boundaries and Jurisdictional Principles

40/ b. Gulf and Bay: - If the distance between the headlands of a bay or gulf is less than 24 miles, a state may claim the area as internal waters ( Art. 10/4, UNCLOS III) Gulf/Bay 3. Maritime Boundaries and Jurisdictional Principles

41/ b. Gulf and Bay: - If the distance between the headlands exceeds 24 miles, states may draw a straight baseline of 24 miles within the bay to enclose the maximum amount of water possible with a line of that lenght. - The water area behind the straight baseline should exceed a semicircle. 3. Maritime Boundaries and Jurisdictional Principles

42/ b. Gulf and Bay: - This provision, however, does not apply to ‘historic gulf and bays’. These are bays and gulfs that fall outside of these rules of delimitation and the waters of which are treated by the coastal state as ‘internal waters’. 3. Maritime Boundaries and Jurisdictional Principles

43/ b. Gulf and Bay: - A number of states have claimed historic buys: * Canada claims Hudson Bay ( 600 miles wide, 1000 miles long). But US has opposed this. * Golf of Aqaba. * Libya claims Golf of Sirte (Sidra). 3. Maritime Boundaries and Jurisdictional Principles

44/ c. Islands - Islands are defined in the 1958 Convention on the Territorial Sea (Art. 10) and in the 1982 Convention ( Art. 121): * An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 3. Maritime Boundaries and Jurisdictional Principles

45/ c. Islands * Islands can generate a; - Territorial sea, - Contiguous zone, - EEZ and - Continental shelf where relevant (Art. 121, 1982 UNCLOS). 3. Maritime Boundaries and Jurisdictional Principles

46/ c. Islands * But roks which cannot sustain human habitation or economic life of their own shall have no EEZ or continental shelf (Art. 121/3, 1982 UNCLOS). 3. Maritime Boundaries and Jurisdictional Principles

47/ d. Archipelagic Sate Convention defines an archipelagic state as; * “A state constituted wholly by one or more archipelagos and may include other islands ( Art. 46/a) ”. 3. Maritime Boundaries and Jurisdictional Principles

48/ d. Archipelagic Sate Convention defines an archipelagic state as; * “ A group of islands, including parts of islands, interconnecting waters and other natural features which are 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 ( Art. 46/b) ” 3. Maritime Boundaries and Jurisdictional Principles

49/ d. Archipelagic Sate - Exampels: * Philippines * Indonesia, 3. Maritime Boundaries and Jurisdictional Principles

50/ d. Archipelagic Sate - An archipelagic state may draw ‘straight archipelagic baselines’ joining the outermost points of the outermost islands and drying reefs of the archipelego, which would then serve as the relevant baselines for other purposes. 3. Maritime Boundaries and Jurisdictional Principles

51/ d. Archipelagic Sate - All the waters within such baseline are ‘archipelagic waters’ over which the state has sovereignty. 3. Maritime Boundaries and Jurisdictional Principles

52/ d. Archipelagic Sate - But there are some exeptions: * Existing agreements, traditional fishing rights and existing submarine cables must be respected. * Ships of all states shall enjoy the rights of ‘innocent passage’ through ‘archipelagic waters’. * All the ships and aircraft are to enjoy a right of archipelagic sea lanes passage through such lanes and air routes designated by the archipelagic state for ‘continuous and expeditious passage’. 3. Maritime Boundaries and Jurisdictional Principles