The United Nations Convention on Law of the Sea - Essay Example

One of the most prolific aspects of a s rights within its territorial waters is that of sovereignty. Entered in force on November 16, 1994, the 1982 United Nations Convention on Law of the Sea (UNCLOS) or simply LOS delineates the scope and ramifications of all activities relating to the sea. An integral part of LOS is the demarcation of territorial waters and other aspects of the territorial sea. The width of the territorial sea was one of the most controversial questions in international law. The concept of territorial seas grew out of the need for coastal states to protect themselves. It was traditionally three miles, but this distance varied widely and was challenged frequently. It was not until the 1958 Convention on the Territorial Sea that the term was embodied in a treaty, and only with the 1982 Convention was an actual limit agreed upon. Before continuing, it will be helpful to examine what rights the coastal states and user states have within the territorial sea. In this way, it will be possible to understand the conflict of interests which has arisen between states concerning the width of the territorial sea; for it is this conflict of interest which is at the root of the legal controversies (Akehurst 171-173). The coastal state's sovereignty over the territorial sea includes the following rights: an exclusive right to fish, and to exploit the resources of the seabed and subsoil of the territorial sea; exclusive use of the airspace above the territorial sea; exclusive right to transport goods and passengers from one port of the coastal state to another; if the coastal state is neutral in time of war, belligerent states may not fight or capture merchant ships in the territorial sea of the coastal state; foreign ships must obey regulations concerning navigation, health, customs, duties, and immigration; powers of arrest over merchant ships exercising innocent passage; powers to try crimes committed on merchant ships in the territorial sea; the right to prevent non-innocent passage; and, for security reasons, the right to suspend temporarily innocent passage in specified areas of the territorial sea except in areas that constitute "straits used for international navigation" (United Nations Convention on Law of the Sea (UNCLOS) 1982, Articles 34-36). When coastal states become more concerned about damage to the environment and threats to security, they tend to respond by claiming an extension of the territorial sea beyond the traditional three-mile limit. The coastal state must decide how much additional jurisdiction to claim, for with rights also come obligations. Where coastal states claim territorial seas, passage through the territorial sea is governed by the rules of innocent passage as stated in Part II of the 1982 Convention in Articles 17-32. Article 19 (Meaning of Innocent Passage) states that passage is innocent "so long as it is not prejudicial to the peace, good order or security of the coastal state" and goes on to list twelve criteria for assessing the meaning of innocent. These criteria offer scope for a coastal state to challenge the passage of user states, despite Article 24 (Duties of coastal states) under which the coastal state "shall not hamper the innocent passage of foreign ships except in accordance with the Convention." Although there is some cause for concern on the part of user states the interpretation of innocent passage may restrict shipping, in the past, the concept has worked reasonably well (O'Connell 54). Innocent passage in international straits is, as we shall see, non-suspendible. There are two main problems for coastal states in extending jurisdiction. First is the difficulty of monitoring innocent passage. In many cases, the means do not exist to determine whether a violation has taken place. Monitoring becomes even more difficult in the case of Article 20 (Submarines and other underwater vehicles) because of the advanced technology needed to detect and monitor submerged passage. The other problem for the coastal state in extending jurisdiction in the territorial sea is the obligation incurred in enforcing national legislation. Here the principle of sovereignty is fully recognized, and user states require permission to enter. Internal waters correspond to closed seas doctrine; whereas high seas correspond to open seas doctrine. There is one exception. Where straight baselines have converted waters to internal status, the previous patterns of usage are guaranteed and the right of innocent passage remains (United Nations Convention on Law of the Sea (UNCLOS) 1982 Article 8(2)). Permission is required to navigate in internal waters and users are subject to the complete jurisdiction of the coastal state. In light of the fact that permission was not requested by State B to enter into the territorial waters of State A, State A was well within its rights to arrest the members of the crew of State B's vessels. This right is granted on the basis that the territorial waters of a sovereign nation extends to as much as twelve nautical miles from that nation's coast and is under the ultimate control, governance and rule of that nation (Juda 141). In so doing, the nation has the right to protect its territorial waters from intruders who hold the potential of getting too close to a nation's coast and compromising its security. The decision of State A to enforce its rights as a sovereign nation is, however, contingent upon several factors. In the case of the patrolling vessel, the vessel was clearly identified and State A is fully aware that this is a vessel belong to the armed forces of State B. In this case, the law of "innocent passage" does apply. Article 19 of the United Nations Convention on the Law of the Sea defines "innocent passage" as passage that "is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law". Article 19 further expounds on the notion of prejudicial to the peace by delineating specific components to a breach of peace. These components include: Any direct or perceived threat to the sovereignty of a state as delineate by the United Nations charter; The use of weapons of any kind; The act of collecting or dispensing information which may compromise the safety and security of a state; The launching of any military devices; Any fishing activities; Conducting research or surveying the area; The act of polluting; The act of willfully interfering with any communications devices In the case of the vessel belonging to State B which has made its way into the territorial waters of State A, the right of passage would only be applicable if there was previous innocent passage applied to the same territory and between the same two states (Jia 8). Additionally, it can be argued that "innocent passage" was not the intent of this vehicle as passage was not intended instead the vessel simply wandered into the territory belonging to State A. In this case, it is prudent that an operational definition be offered for passage as it relates to the law of the sea. Passage is delineated as "navigation through the territorial sea for the purpose of: (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or (b) proceeding to or from internal waters or a call at such roadstead or port facility" (United Nations Convention on Law of the Sea (UNCLOS) 1982 Article 19(1)). When State B entered the territorial waters of State A, State A was well within its rights to question the rationale behind the entry. It could have been speculated that State B entered the territorial waters of State A with the possible intent to inflict harm upon the State. In so doing, the notion of activities prejudicial to the peace of State A becomes applicable. Under such conditions, State A has the right to take the necessary precautions to ensure its safety and protect against any breach of its sovereign rights (United Nations Convention on Law of the Sea (UNCLOS) 1982 Article 25(1); (Fowler, and Bunck 87)). The Law of the Sea, however, does not specify the measures that may be taken. Based on the rules and regulations with regards to sovereignty, the actions taken may include direct aggression against a vessel which enters its territorial waters, the detention of the crew of the vessel and any other measures deemed necessary. These measures must be in compliance with International and Maritime law as well as the Geneva Convention (Wang 387). Another aspect of the arrest of the crew members of the ship belonging to State B is one that relates to the activities the crew members were engaged in as the ship entered the territorial waters of State A. If, for example, the crew was engaged in an unauthorized broadcast while in the territorial waters of State A, they could be arrested. Article 109 facilitates the arrest and trial of any individual or crew engaged in the transmission of unauthorized messages and operationally defines unauthorized messages as "the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulations, but excluding the transmission of distress calls" (United Nations Convention on Law of the Sea (UNCLOS) 1982 Article 109(2)). Finally, as we have seen, the scope and ramifications of sovereignty with regards to territorial waters are such that when a state's vessel enters into the territorial waters of another state, sovereignty does apply. This sovereignty places the entering state in a compromising position in that that state is essentially at the mercy of the state whose territory has been invaded. The limits of territorial waters cannot extend past twelve nautical miles from the state's which is bordering on the Atlantic or Pacific Oceans as well as the Gulf of Mexico or the Caribbean Sea. If this territory is entered, the state is duty bound to its citizens to take the necessary precautionary measures to ensure its safety. This has to be done without violating the rights of the other state involved. In so doing, it may seize a vessel as well as detain its crew. In such a case, the rights of the crew members as afforded by the United Nations Declaration of Human Rights must be protected and all of the tenets of International Law must be upheld. References Akehurst, Michael, A Modern Introduction to International Law (London and New York: Routledge, Sixth Edition, 1992). Fowler, Michael Ross, and Julie Marie Bunck. Law, Power, and the Sovereign State: The Evolution and Application of the Concept of Sovereignty. University Park, PA: The Pennsylvania State University Press, 1995. Jia, Bing Bing. The Regime of Straits in International Law. Oxford: Clarenon Press, 1998. Juda, Lawrence. International Law and Ocean Use Management. New York: Routledge, 1996. O'Connell, D.P., The Influence of Law on Sea Power. Annapolis: Naval Institute Press, 1975. Wang, James C. F. Handbook on Ocean Politics & Law. New York: Greenwood Press, 1992. Read More