law of high seas

8/8/2019 Law of High Seas

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Law of the High Seas

West Bengal

IIT Kharagpur

Rajiv Gandhi School of Intellectual Property Law

Assistant Professor

Dr. Raju KD

1KDR/IIT KGP/RGSOIPL/-2008


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High seasyArt.1 - The term "high seas" means all parts of the sea

that are not included in the territorial sea or in the

internal waters of a State. convention on High Seas1958.

y Part VII Art. 86 1982 Convention apply to allparts of the sea that are not included in the exclusive

economic zone, in the territorial sea or in the internalwaters of a state, or in the archipelagic waters of anarchipelagic state.

KDR/IIT KGP/RGSOIPL/-2008 2


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High seasy Common heritage of mankind

y Res extra commercium

y Grotius: stated two principles: -y 1. the sea could not be the object of private or state

appropriations;

y 2. use of the high seas by one state would leave the

medium available for use by another.



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Freedoms, A. 2y 1. Freedom of navigation;

y 2. Freedom of fishing;

y 3. Freedom to lay submarine cables and pipelines;y 4. Freedom to fly over high seas.

y Other freedoms recognised by international law.

y Confirmed infisheries case and Behring Sea FisheriesArbitration.



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Maintenance of order in the HSy Ships have nationality of the state whose flag they are

entitled to fly.

y The primary duty is with the state whose flag is overthe ship.

yJurisdiction is subject to national laws of the flag state.

yA.4 - Every State, whether coastal or not, has the right

to sail ships under its flag on the high seas.yA.8 Warships on the high seas have complete

immunity from the jurisdiction of any State other thanthe flag State.



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Exceptionsy Piracy:

y Dissenting opinion of the Judge Moore the Lotus case

the person charged with the offence may be triedand punished by any nation into whose jurisdiction hemay come.

y It should be considered as an offence against the law of

nations.yAny nation may in the interest of all capture and

punish.



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Lotus caseyVessel on the high seas are subject to no authority

except that of the state whose flag they fly.

y No state may exercise any kind of jurisdiction overforeign vessels upon them.

y 92.1 of 1982 convention exclusive jurisdiction over theflag state.



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Article 15 of Convention on HSy according to the United Nations Convention on the Law of

the Sea (UNCLOS) of 1982,

y

consists of any criminal acts of violence,y detention, or depredation committed for private ends by

the crew or the passengers of a private ship or aircraft

y that is directed on the high seas against another ship,aircraft, or against persons or property on board a ship oraircraft.

y Piracy can also be committed against a ship, aircraft,persons, or property in a place outside the jurisdiction ofany state.



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A.15y Piracy consists of any of the following acts:

y (1) Any illegal acts of violence, detention or any act of depredation, committedfor private ends by the crew or the passengers of a private ship or a private

aircraft, and directed:y (a) On the high seas, against another ship or aircraft, or against persons or

property on board such ship or aircraft;

y (b) Against a ship, aircraft, persons or property in a place outside thejurisdiction of any State;

y (2) Any act of voluntary participation in the operation of a ship or of an aircraft

with knowledge of facts making it a pirate ship or aircraft;y (3) Any act of inciting or of intentionally facilitating an act described in sub-

paragraph 1 or sub-paragraph 2 of this article.



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Seizurey Seizure on account of piracy may only be carried out

by warships or military aircraft, or other governmental

ships.y No general right of search of foreign ships can be

claimed on the high seas by any nation.



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Interferencey A warship which encounters a foreign merchant ship on the

high seas is not justified in boarding her unless there isreasonable ground for suspecting:

y (a) That the ship is engaged in piracy; or

y (b) That the ship is engaged in the slave trade; or

y (c) That though flying a foreign flag or refusing to show itsflag, the ship is, in reality, of the same nationality as thewarship.



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Additional groundsyArt. 109 of 1982 convention

y 1. engaging in unauthorized broadcasting

y 2. ship is without nationality, A.110.

yA. 22.3. If the suspicions prove to be unfounded,and provided that the ship boarded has notcommitted any act justifying them, it shall becompensated for any loss or damage that may havebeen sustained.



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Hot pursuit, A.23y The hot pursuit of a foreign ship may be undertaken

when the competent authorities of the coastal State

have good reason to believe that the ship has violatedthe laws and regulations of that State.

y Such pursuit must be commenced when the foreignship or one of its boats is within the internal waters or

the territorial sea or the contiguous zone of thepursuing State, and may only be continued outside theterritorial sea or the contiguous zone if the pursuit hasnot been interrupted.



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A.24 & 25y Every State shall draw up regulations to prevent

pollution of the seas by the discharge of oil from ships

or pipelines or resulting from the exploitation andexploration of the seabed and its subsoil.

y Every State shall take measures to prevent pollution ofthe seas from the dumping of radio-active waste.



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A.26yAll States shall be entitled to lay submarine cables and

pipelines on the bed of the high seas.

ythe State in question shall pay due regard to cables orpipelines already in position on the seabed.

y In particular, possibilities of repairing existing cablesor pipelines shall not be prejudiced.



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Pollutiony Remedial action may be justified on the ground of

necessity.

y1969 Brussels International Convention Relating toIntervention on the High Seas in Cases of Oil PollutionCausalities.



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Indian

Provisions



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Developments since independencey Since independence in 1947, India had been content to proclaim the

traditional territorial sea of three miles.

y (a) On 30 August 1955, India claimed full and exclusive sovereign rights

over the seabed and subsoil of the continental shelf adjoining the coastbut beyond territorial waters. Neither the depth nor the distance fromthe coastline was indicated.

y (b) On 22 March 1956, India claimed Territorial Waters of six milesfrom appropriate baselines.

y(c) On 29 November 1956, India claimed a Conservation Zone forfisheries up to a distance of 100 miles from the outer limit of territorial

waters.

y (d) On 3 December 1956, India claimed a Contiguous Zone.



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Developmentsy On 12 September, 1967, India extended its territorial

waters to twelve miles.

y

This was largely a reaction to Pakistan's extension ofher territorial waters from three to twelve miles, ratherthan an act of maritime policy.

y In the early 1970, the Indian Government had initiated

a programme of scientific investigation and evaluationof the manganese nodule resources in the IndianOcean.



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70sy By the early 1970's, India had discovered oil and gas in

Bombay High and promising fields were being forecast

in the Godavari, Krishna and Palk Bay basins, as alsogas in the Andaman Offshore.

y India is with a coastline of over 64000 kilometers.

y India has maritime boundaries with five opposite

states (Sri Lanka, the Maldives, Myanmar, Indonesia,Thiland) and two adjacent States (Pakistan andBangladesh).



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Constitutiony 40th amendment in 1976.

y A.297 - "297. Things of value within territorial

waters or continental shelf and resources of theexclusive economic zone to vest in the Union.-(1)All lands, minerals and other things of valueunderlying the ocean

within the territorial waters, or thecontinental shelf, or the exclusive economiczone, of India shall vest in the Union and be heldfor the purposes of the Union.



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Indian Constitutiony 2) All other resources of the exclusive economic

zone of India shall also vest in the Union and be

held for the purposes of the Union.y (3) The limits of the territorial waters, the

continental shelf, the exclusive economic zone,and other maritime zones, of India shall be

such as may be specified, from time to time, by orunder any law made by Parliament.".



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THE TERRITORIAL WATERS, CONTINENTAL SHELF, EXCLUSIVEECONOMIC ZONE AND OTHER MARITIME ZONES ACT, 1976

y S. 3(1) The sovereignty of India extends and has alwaysextended to the territorial waters of India (hereinafter

referred to as the territorial waters) and to the seabedand subsoil underlying, and the air space over, suchwaters.

y The limit of the territorial waters is the line every

point of which is at a distance of twelve nautical milesfrom the nearest point of the appropriate baseline.



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Innocent passagey S.4(1) Without prejudice to the provisions of any other

law for the time being in force, all foreign ships (other

than warships including submarines and otherunderwater vehicles) shall enjoy the right of innocentpassage through the territorial waters.

y Definition of passage: explanation to 4.1:

y

passage is innocent so long as it is not prejudicial tothe peace, good order or security of India.



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War shipsy 4. 2 - Foreign warships including submarines and

other underwater vehicles may enter or pass through

the territorial waters after giving prior notice to theCentral Government.

y Provided that submarines and other underwatervehicles shall navigate on the surface and show their

flag while passing through such waters.



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Contiguous zoney 5. (1) The contiguous zone of India (hereinafter

referred to as the contiguous zone) is and area

beyond and adjacent to the territorial waters andthe limit of the contiguous zone is the line everypoint of which is at a distance of twenty-fournautical miles from the nearest point of thebaseline



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Inspectiony 5(4) The Central Government may exercise such

powers and take such measures in or in relation to the

contiguous zone as it may consider necessary withrespect to,-

y (a) the security of India, and

y (b) immigrations sanitation, customs and other fiscal

matters.



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Continental shelfy 6. (1) The continental shelf of India (hereinafter

referred to as the continental shelf) comprises the

seabed and subsoil of the submarine areas that extendbeyond the limit of its territorial waters throughoutthe natural prolongation of its land territory to theouter edge of the continental margin or to a distance oftwo hundred nautical miles from the baseline



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Sover

eigntyy S.6 Union has in the continental shelf,-y (a) Sovereign rights for the purposes of exploration, exploitation,

conservationand management of all resources;

y (b) exclusive rights and jurisdiction for the construction, maintenance

or operation of artificial islands, off-shore terminals, installations andother structures and devices necessary for the exploration andexploitation of the resources of the continental shelf or for theconvenience of shipping or for any other purpose;

y (c) exclusive jurisdiction to authorize, regulate and control scientific

research; andy (d) exclusive jurisdiction to preserve and protect the marine

environmentand to prevent and control marine pollution.



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historic watersofIndia?y 8. (1) The Central Government may, by

notification in the Official Gazette, specify the

limits of such waters adjacent to its land territoryas are the historic waters of India.



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Punishmenty 11. Whoever contravenes any provision of this Act

or of any notification thereunder shall be

punishable with imprisonment which may extendto three years, or with fine, or with both.



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Company liabilityy 12. (1) Where an offence has been committed by a

company,

y

every person who at the time the offence wascommitted was in charge of and was responsibleto the company for the conduct of the business ofthe company,

y

as well as the company shall be deemed to beguilty of the offence and shall be liable to beproceeded against and punished accordingly



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