Anthony Aust. Handbook of International Law

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Sudan

Following an attempted assassination of the President of Egypt while visiting Ethiopia by persons

who then found refuge in Sudan, the Security Council adopted Resolution 1044 (1996) calling upon

Sudan to comply with requests by the OAU to extradite the suspects to Ethiopia and to cease support

for terrorism. Sudan did not comply. In Resolutions 1054 (1996) and 1070 (1996), the Council,

acting under Chapter , demanded that Sudan comply and imposed sanctions. Following requests

from the OAU, Egypt and Ethiopia, the sanctions were lifted by Resolution 1372 (2001).

Bin Laden, Al-Qaida and the Taliban

In Resolutions 1267 (1999) and 1333 (2000), the Security Council required the Taliban regime in

Afghanistan to surrender Usama bin Laden and, as reiterated and consolidated in Resolution 1390

(2002), imposed sanctions on Bin Laden, members of the Taliban and Al-Qaida, and individuals,

groups, undertakings and entities associated with them. Resolution 1452 (2002) provides for

exemptions from the financial sanctions imposed by Resolutions 1267 (1999), 1333 (2000) and 1390

(2002). They include payments for food, rent or mortgage, medicines, taxes, insurance premiums,

public utility charges and payments exclusively for reasonable professional fees. There is a forty-

eight-hour tacit ‘no-objection’ approval procedure if a relevant state notifies the relevant sanctions

committee, the 1267 Committee,

of a proposal to make an exempt payment.

For the purpose of implementing the sanctions against individuals, Resolutions 1267 (1999), 1333

(2000) and 1390 (2002) provide for lists of Al-Qaida members to be maintained and updated by the

1267 Committee. The present Guidelines for the conduct of the work of the Committee include a

procedure to enable a name to be removed. The individual (or group) petitions his government of

residence or citizenship. The government consults the government that originally proposed the

listing. A joint or, if necessary, unilateral request for de-listing can then be made by the petitioned

government to the Committee, under a ‘no-objection’ procedure. The Committee takes its decision

by consensus, but, if that is not achievable, after consultations by the Chairman the matter can be

referred to the Security Council. The procedure is expressed to be without

51. The UN English spelling of the names.

52. See www.un.org/Docs/sc/committees/1267/1267Template.htm.

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prejudice to available procedures – recognition that national legal remedies, like judicial review,

may be available.

Following the Al-Qaida attacks on the United States on 11 September 2001, the Security Council

adopted Resolution 1373 (2001). Drawing on the Financing Convention, it required all states to

criminalise the financing of terrorist acts, to freeze the funds of terrorists and to prohibit the supply

of funds to terrorists. The resolution does not define terrorism; it just refers to ‘terrorist acts’. The

resolution does not provide for lists of terrorist groups or individuals to be maintained. In practice,

US and other lists circulate among Members but they are not binding in international law, although

in some states they may be binding in domestic law and acts based on a listing may be challengeable

in a national court.

Resolution 1373 (2001) established a separate committee, the Counter-

Terrorism Committee, with a broader remit than the 1267 Committee.

Resolution 1526 (2004),

paragraph 15, emphasised the need for the two committees to cooperate closely.

53. There are also a number of pending ECJ cases (e.g. Kadi and Aden) relating to individuals challenging

implementation of financial sanctions – which also raise questions of Community competence.

54. See www.un.org/Docs/sc/committees/1373.

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15 The law of the sea

The sea! The sea!

Churchill and Lowe, The Law of the Sea, 3rd edn, Manchester, 1999

Burke, The New International Law of Fisheries, Oxford, 1994

Birnie and Boyle, International Law and the Environment, 2nd edn, Oxford, 2002

www.un.org/Depts/los/

www.imo.org

Because the sea has been an essential means of transport since ancient times, and even today

merchant shipping still carries 95 per cent (by weight) of all exports, the rules governing the use of

the sea (including its resources and environment) are one of the principal subjects of international

law. The law is a mixture of treaty and established or emerging customary international law, the

customary law having developed over centuries. The first successful attempt to codify the law was

the 1958 UN Conventions on the Law of the Sea, but the most important aspects of the law are now

set out in the UN Convention on the Law of the Sea 1982 (in this chapter, ‘the Convention’ or

‘UNCLOS’).

For those parties to the Convention that were parties to the 1958 Conventions, the

1982 Convention replaces them. Although between thirty-seven and sixty-two states are still listed

as parties to the four 1958 Conventions, in many cases they are now bound by the 1982 Convention,

which entered into force on 16 November 1994, and now has 148 parties. As most of the

Convention’s provisions represent customary international law,

even non-parties, such

1. Xenophon, c. 430–359 BC.

2. 1. Territorial Sea and Contiguous Zone; 2. High Seas; 3. Fishing; 4. Continental Shelf. The four

Conventions, the ILC drafts and commentaries, and a short historical introduction, are in A. Watts, The

International Law Commission 1949–1998, Oxford, 1999, vol. , pp. 23–137. UNCLOS is at 1833 UNTS

397 (No. 31363); ILM (1982) 1261; and UKTS (1999) 81.

3. For an explanation of the term, see p. 6 above, and, in relation to the Convention, see Churchill and

Lowe, The Law of the Sea, 3rd edn, Manchester, 1999, pp. 16–22.

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as Iran and the United States, are already bound by those provisions albeit as customary international

law.

In considering a particular situation, such as passage through straits, one must thus consider

carefully the legal position of the states involved. This requires an investigation into which general

treaties on the subject are binding on them (in particular, the relevant 1958 Convention or

UNCLOS); if on the specific matter there are any other relevant multilateral or bilateral treaties; and

whether customary international law as represented in the 1982 Convention is applicable.

The

subject is large and there are many exceptions to the rules and special situations. In the space

available here, it is only possible to sketch in the outlines by explaining the terminology and

describing the principles.

(Unless otherwise stated, references to numbered Articles are to those of the 1982 Convention.)

Internal waters

Internal waters are all those on the landward side of the baselines from which the breadth of the

territorial sea is measured (Article 8). They therefore include bays,

estuaries, ports, rivers, canals

and lakes, including inland seas like the Caspian Sea.

Right of access by foreign ships

A coastal state has sovereignty over its internal waters and, unlike the territorial sea, there is no right

of innocent passage through internal waters for foreign ships. Although a right of access to internal

waters, in particular ports, may be granted to foreign ships by treaty (typically in a treaty of

friendship, commerce and navigation), there is no general right of access for merchant ships.

The

only clear right of access is when a ship is in distress and there is a risk to the lives of those on

board. States can and do impose many conditions on the entry of ships. It can be refused for, among

4. See n. 3 above.

5. Even when a treaty has ‘entered into force’, it is binding only on those states which have consented to be

bound by it (e.g. by ratifying it), except in so far as the treaty also represents customary international law.

One must also check whether a party has made reservations or interpretative declarations and, if so,

whether they affect the matter (see pp. ** above).

6. See pp. 67 et seq. above.

7. The law of the sea does not govern rivers and canals. For the special cases of the Panama and Suez

Canals, see p. 363 below.

8. See pp. 317 below on warships.

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other things, security reasons or to prevent pollution. A state can designate which of its ports are

open for international trade or immigration.

By entering a foreign port, a ship comes under the territorial jurisdiction of the coastal state. This

has several implications. It is not completely free to leave. It must complete all necessary formalities

and may be detained if it is in an unseaworthy condition or otherwise poses a danger to those on

board or to the environment.

Of particular importance is the degree to which the criminal and civil laws of the coastal state are

enforceable against a foreign ship in port. The basic principle is that the coastal state will not enforce

its laws if its interests are not affected and the matter can be dealt with effectively under the laws of

the flag state. Thus crew discipline is normally left to the captain and the authorities of the flag state.

But, if a local national or a person who is not a member of the crew is involved in a serious crime,

such as murder, or the captain or consul of the flag state requests the help of the coastal state, it may

decide to exercise jurisdiction. A foreign ship is liable to be arrested in port in the case of an action

in rem against the ship itself, such as a claim arising out of an incident involving the ship or as

security in a civil action against its owner. This latter aspect is an area of law on which local legal

advice is always essential.

Baselines

The breadth of the territorial sea, the contiguous zone, the exclusive economic zone (EEZ) and the

continental shelf (in certain cases) is measured from baselines, behind which the waters are internal.

Baselines are also important in the delimitation of a maritime boundary.

The subject is complex

and highly technical (see Articles 3–16) and will therefore be described only in broad terms.

The normal baseline is the low-water mark along the coast

as marked on large-scale charts

officially recognised by the coastal state. This will inevitably result in a curving baseline. But if the

coastline is deeply indented or cut into, or there is a fringe of islands along the coast in its immediate

vicinity (Norway is a prime example), a straight baseline can be drawn joining appropriate points.

Nevertheless it must not depart to any appreciable extent from the general direction of the coast.

Deltas are treated as part of the coastline. A low-tide elevation (a naturally formed

9. See also Articles 25(2), 211(3) and 255.

10. See pp. 309-11 below.

11. Coast is not defined but probably relates to the place from where navigation is possible.

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area of land which is surrounded by and is above water at low tide, but submerged at high tide) may

be used as a baseline if it is wholly or partly within the territorial sea. Reefs that are exposed at high

tide can also be used as baselines. Artificial islands and other offshore installations are disregarded

for the purpose of drawing baselines. When there is a river that flows directly into the sea, the

baseline is a straight line draw across its mouth. When the river flows indirectly into the sea through

an estuary, the rules on bays apply. When the distance between the natural entrance points of a

bay

does not exceed twenty-four nautical miles a closing line can be drawn between those points,

the water enclosed by it being internal. If the entrance is wider, a straight line of twenty-four nautical

miles is drawn within the bay so as to enclose the maximum area of water that is possible within a

line of that length. Otherwise, no maximum length is prescribed for a straight baseline, and as a

result the right to draw straight baselines has been much abused.

So-called historic bays do not meet the criteria in the Convention and are governed by customary

international law, not the Convention (Article 10(6)). To claim an historic bay as internal waters, the

state has to prove that it has claimed the bay as its internal waters for a considerable time and has

effectively, openly and continuously exercised its authority there without objection from other states.

Most claims to historic bays have been objected to, such as the fifty nautical mile closing line for

Hudson Bay claimed by Canada, to which the United States objects. Most extravagant is the Libyan

claim to a 296 nautical mile closing line for the Gulf of Sirte (or Sidra), to which several developed

countries have objected.

The concept of vital bays (vital for the security of the coastal state) has been promoted by some

developing countries, but is not recognised by the Convention or in customary law.

Territorial sea

A coastal state’s sovereignty extends beyond its land territory and internal waters to an adjacent belt

of sea known as the territorial sea, although

12. ‘[A] well-marked indentation whose penetration is in such proportion to the width of its mouth as to

contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall

not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle

whose diameter is a line drawn across the mouth of the indentation’ (Article 10(2)).

13. Churchill and Lowe, The Law of the Sea, 3rd edn, Manchester, 1999, pp. 43–5

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sometimes referred to as ‘territorial waters’. Sovereignty extends also to the bed and subsoil of the

territorial sea and the air space above it (Article 2(1)).

Since sovereignty over the territorial sea is

incidental to the sovereignty over the land, it does not have to be established. However, each coastal

state has to specify the breath of its territorial sea, which can be up to a maximum of twelve nautical

miles measured from the baselines (Article 3). About six states claim between only three and six

nautical miles. Some fifteen states, mostly in Africa and Latin America, claim between twenty and

200 nautical miles, but these are not recognised by states that claim twelve nautical miles or less.

The laws and regulations of the coastal state apply to the territorial sea, but can be enforced against

foreign ships only to the extent indicated below.

Islands

An island is defined as ‘a naturally formed area of land, surrounded by water, which is above water

at high tide’ (Article 121(1)). An island is treated in the same way as other land territory and can

therefore have a territorial sea, contiguous zone, EEZ and a continental shelf. Rocks (not defined as

such) which cannot sustain human habitation or economic life of their own’ cannot have an EEZ or a

continental shelf (Article 121(3)), but can have a territorial sea.

Artificial islands and other

offshore installations have no territorial sea of their own.

Innocent passage

Given the unique character of the sea and its importance for trade, it has long been recognised that

ships of all states have the right of ‘innocent passage’ through the territorial sea (Article 17). By

‘passage’ is meant navigation through the territorial sea for the purpose of (a) traversing it without

entering internal waters or calling at a port or roadstead

outside internal waters or (b) proceeding

to or from internal waters or a call at such port or roadstead. The passage must be continuous and

expeditious

14. See also Article 2 of the Chicago Convention on International Civil Aviation 1944, 15 UNTS 295 (No.

102); UKTS (1953) 8.

15. The UK’s fishery limits were adjusted before the UK ratified UNCLOS to take account of the fact that

under UNCLOS the limits could not be based on Rockall since it cannot sustain human habitation or an

economic life of its own. See further Churchill and Lowe, The Law of the Sea, 3rd edn, Manchester, 1999,

pp. 49–50.

16. An offshore structure at which ships load, unload or anchor.