Anthony Aust. Handbook of International Law
Подождите немного. Документ загружается.
Page 310
state that has a delimitation problem will have to take advice from the legal advisers in its foreign
ministry, and they will probably need the help of hydrographers and outside public international
lawyers with expertise in this arcane subject. We will therefore merely outline the main points.
Territorial sea
In the case of opposite states (i.e facing each other), the usual practice is to draw a median line – a
line equidistant from the shores of each state. When the states are adjacent (next to each other), the
land boundary may be extended outwards in the same direction, or, where the land boundary meets
the sea, a line may be drawn perpendicular to the general direction of the coast, or the line of latitude
at that point may be continued outwards. But these are only general indicators of possible solutions;
and offshore islands and other special features may require special treatment (see Article 15). In
practice, states, and international courts and tribunals, seek an equitable solution, the matter typically
being complex and with no ‘legally correct’ answer.
EEZ and continental shelf
Articles 74 and 83 lay down identical rules for the delimitation of the EEZ and the continental shelf
between states with opposite or adjacent coasts. First, the states must seek to agree the delimitation,
which should represent an equitable solution, and most delimitations have been done this way.
Secondly, pending agreement, the states should enter into provisional arrangements of a practical
nature. Sometimes, these are long lasting and provide for co-operation between states in the
exploitation of oil and gas reserves or fish stocks off their coasts in an area that straddles the likely
boundary. Such co-operative arrangements (unitisation agreements)
29
can also be made where the
boundary has been delimited. Thirdly, if agreement cannot be reached within a reasonable time, the
states must resort to the dispute settlement procedure of the Convention.
30
Given that the rules
contain only one substantive principle, equity, the way in which this is applied will depend on state
practice, judicial and arbitral decisions, and the particular facts of the case. There is a distinct trend
29. See the Australia–Timor Leste Unitisation Agreement of 6 March 2003.
www.timorseaoffice.gov.tp/iua.htm
30. See p. 323 below.
Page 311
for the same boundary line to be drawn for the continental shelf and the EEZ, deviations from a
common line being made only to take account of special circumstances.
Delimitation is a lengthy and complex process. One normally starts by drawing a median line.
One then considers whether there are (largely geographical) circumstances which suggest that to
delimit on the basis of the median line would be inequitable. Such circumstances include a coast
with an exceptional configuration (shape) or offshore islands. If an offshore island is small it will not
be taken fully into account in any modification to the median line. However, if the opposite coasts of
two states are considerably different in length, a median line drawn between them is likely to
produce a substantial disparity between the ratio of the coastlines to each other and the ratio of the
continental shelves attaching to each coast. The boundary will then be adjusted so that the ratio
between each state’s coastline and its continental shelf is not unreasonably disproportionate. But,
when a small island is a state in itself, or an overseas territory, it will usually be regarded as
generating its own, full continental shelf.
The Area
Whereas most of UNCLOS is based on the 1958 Geneva Conventions on the Law of the Sea and
established or emerging customary international law, Part , on the ‘Area’, created entirely new law.
It was effectively amended in 1994 by the Agreement on the Implementation of Part of UNCLOS
(‘Implementation Agreement’).
31
The term ‘Area’ was chosen to describe the sea-bed and ocean
floor and its subsoil that is not part of the continental shelf of any state. In simple terms, the Area is
the deep seabed. It is important because parts of it (mostly in the Pacific and Indian Oceans) are rich
in mineral nodules (lumps), manganese in particular. The Area and its resources are declared by the
Convention to be the ‘common heritage of mankind’. They are therefore not subject to any claims to,
or exercise of, sovereignty or sovereign rights, although that does not affect the status of the waters
(or the airspace above them) that lie over the Area. All rights in its mineral resources (including oil
and gas) are vested in mankind as a whole, on whose behalf the International Sea-Bed Authority
acts. The Authority organises and controls the exploitation of the mineral resources in the Area.
31. 1836 UNTS 42 (No. 31364); ILM (1994) 1309; UKTS (1999) 82.
Page 312
All parties to the Convention are members of the Authority, which is based in Jamaica. The
Assembly of the Authority consists of representatives of all the Convention parties, who elect the 36
members of the executive organ of the Authority, the Council. Within the general policies
established by the Assembly, the Council establishes the specific policies of the Authority. The
Enterprise is the organ of the Authority empowered to engage in mining in the Area, but only by
means of joint ventures with companies. Since commercial exploitation of the Area is unlikely in the
foreseeable future, such limited functions of the Enterprise that need to be carried out at present are
done by the Secretariat of the Authority.
32
The high seas
The high seas are all parts of the sea that are not within an EEZ, the territorial sea, internal waters or
archipelagic waters (Article 86). No state may subject any part of the high seas to its sovereignty
(Article 89). All states, including land-locked states, enjoy the freedoms of the high seas, of which
six are listed in the Convention. They are not absolute, but must be exercised with due regard for the
interests of other states in their exercise of the same freedoms (Article 87).
Freedom of navigation
The right for ships flying the flag of a state
33
to sail on the high seas (Article 90) is a cardinal
principle of international law. The flag state has exclusive jurisdiction over ships on the high seas
flying its flag (Article 92(1)), subject to some limited exceptions.
Piracy
Piracy is also a modern, and growing, phenomenon. The Piracy Reporting Centre of the International
Maritime Bureau (IMB) of the International Chamber of Commerce recorded 325 pirate attacks in
2004, 30 per cent in Indonesian waters, especially the Strait of Malacca through which a quarter of
the world’s shipping passes. Murders were up from twenty-one in 2003 to thirty in 2004.
34
International law has for centuries treated
32. For details of the regime once commercial exploitation begins, see Churchill and Lowe, The Law of
the Sea, 3rd edn, Manchester, 1999, pp. 238–53.
33. As to the nationality of ships, see p. 316 below.
34. See www.icc-ccs.org/prc/services.php. The IMB should not be confused with the IMO.
Page 313
pirates as international outlaws subject to the jurisdiction of any state.
35
Piracy is now defined as
any illegal act of violence or detention committed, for private ends, by the crew or passengers of a
private ship or aircraft on the high seas against another ship or aircraft, or against persons or
property on board it (Article 101).
36
The crew of any warship may board any ship if there are
reasonable grounds to suspect that it is engaged in piracy (the so-called right of visit) and, if that
proves to be so, they may seize the ship and arrest the pirates. They can then be tried in the courts of
the warship’s state (Articles 105, 107 and 110).
Slave trading
Similarly, the crew of any warship can board any ship if there are reasonable grounds to suspect that
it is engaged in the slave trade (Article 110(1)(b)). However, the flag state of the warship can only
report its findings to the flag state of the ship; it cannot seize the ship or prosecute the crew.
Unauthorised broadcasting
This consists of radio or television broadcasting to the general public from a ship on the high seas
contrary to international regulations. Any person engaged in it may be prosecuted by the flag state of
the ship concerned, the state of which the person is a national, any state where the transmissions can
be received, or any state where authorised transmissions are being interfered with. Any such state
may seize the ship and its broadcasting apparatus on the high seas and arrest the persons concerned
(Articles 109 and 110(1)(c)).
Drug trafficking
Drug trafficking is not yet an exception. Although Article 108 requires states to co-operate in the
suppression of the illicit carriage of narcotic drugs by ships on the high seas, it does not authorise
states to take action against foreign ships. However, it does permit a state which believes that a ship
flying its flag is engaged in such traffic to request the help of other states. Such a request naturally
signifies the consent of the requesting state to the action requested. The request can be made ad hoc
or under a treaty. A UK–US treaty of 2000
37
authorises the reciprocal interdiction
35. See p. 269 above.
36. These criteria mean that in most cases the act cannot be regarded as, for example, shipjacking (see p.
287 above (Rome Convention)).
37. UKTS (2001) 2.
Page 314
(stop and search) in the Caribbean, the Gulf of Mexico and Bermuda of their respective flag vessels
suspected of being engaged in drug trafficking, and ultimately their seizure. Other states have
concluded similar bilateral treaties.
It is not only drug trafficking for which consent can be given by the flag state for its ships to be
interdicted on the high seas; it can consent in respect of any matter, arms smuggling being an
obvious example. On 21 December 2001, British forces stopped, boarded and searched a merchant
ship, the Nisha, registered in St Vincent and the Grenadines, while it was on the high seas.
Intelligence had indicated that it might have weapons of mass destruction (WMD) on board,
although nothing was found. The action had been authorised in advance by the flag state.
Proliferation Security Initiative
In March 2003, in response to the threat from the proliferation of WMD, certain states agreed to
participate under US leadership in the Proliferation Security Initiative (PSI). There are now over
sixty states participating. The PSI is not a treaty-based scheme, although it builds upon the
Statement of the President of the UN Security Council of 31 January 1992
38
that the proliferation of
WMD is a threat to international peace and security. The aim is to impede and stop the trafficking of
WMD, their delivery systems and related materials by states or non-state actors engaged in or
supporting WMD proliferation programmes. The principal means is the stopping and searching by a
participant state or states of shipping suspected of carrying WMD cargoes, but only when this would
be consistent with international law, for example, of own flag vessels anywhere and of foreign flag
vessels in the participant’s ports, territorial sea or contiguous zone (if any), or otherwise with the
consent of the foreign state. So far Ship Boarding Agreements have been signed by the United States
with Liberia, the Marshall Islands and Panama.
39
Special zones
Although the high seas are reserved for peaceful purposes (Article 88), this does not mean that force
cannot be used on the high seas, provided it is lawful under rules of general international law.
40
Practice firings or
38. S/23500. See also UNSC Res. 1540 (2004).
39. See generally www.state.gov/t/np/c10390.html and www.warshipsifr.com/pages/huntForWMD.html.
Liberia and Panama have numerous ships flying their flags.
40. See p. 10 above.
Page 315
naval exercises may also be conducted on the high seas. For this purpose, the state or states involved
may issue warnings to shipping generally not to enter the zone where the activity will be carried out.
The Convention does not authorise or prohibit such warnings, but, provided they are not too
extensive or prolonged, they are in most cases accepted.
Hot pursuit
The right of hot pursuit of a foreign ship by a ship or aircraft for the purpose of arresting it is not a
real exception to the freedom of navigation. It is rather an extension of the rights of the coastal state,
provided it has ‘good reason to believe’ that the ship has violated its laws or regulations. So long as
the pursuit is begun when the ship is still within internal waters, archipelagic waters, territorial sea
or contiguous zone of the coastal state, it can be continued outside so long as the pursuit has not
been interrupted (Article 111). It will probably not be interrupted merely by another ship taking over
the pursuit. If the order to stop is received when the suspect ship is within the territorial sea or the
contiguous zone, the pursuing ship does not also have to be in the territorial sea or the contiguous
zone. But if the foreign ship is within the contiguous zone, it may not be pursued unless there has
been a violation of the rights for the protection of which the zone was established. The right of hot
pursuit applies equally to violations in the EEZ or on the continental shelf, including in safety zones
around continental shelf installations, of the laws or regulations of the coastal state applicable in
those areas.
The order to stop must be given by a visual or auditory (including radio) signal that can be seen or
heard by the foreign ship. Only such force as is necessary and reasonable may be used to effect an
arrest. The right of hot pursuit ceases as soon as the ship enters the territorial sea of its own state or a
third state. Hot pursuit may only be exercised by warships or military aircraft, or other ships or
aircraft clearly marked and identifiable as being on government service and authorised to that effect.
The right of hot pursuit is developing to meet the dangers posed by drug trafficking and other
modern scourges.
41
Other high seas freedoms
The other freedoms of the high seas are listed in Article 87(1).
41. See Churchill and Lowe, pp. 214–15.
Page 316
Freedom of overflight
The aircraft, civil and military, of all states are free to fly in the airspace above the high seas and
EEZs, subject only to such rules as are imposed by international law. In the case of civil aircraft, the
governing treaty is the Chicago Convention 1944 and the rules promulgated under it by the
International Civil Aviation Organization (ICAO).
42
Freedom to lay submarine cables and pipelines
Like the other freedoms, this so-called right of immersion must be exercised ‘with due regard for the
interests of other states’ in their exercise of the freedoms, and also with due regard for rights under
the Convention with respect to activities in the Area. Thus, when laying a cable or pipeline, due
regard must be had to existing cables and pipelines and to the need for them to be repaired (Article
79(5)). There are provisions regarding damage to cables or pipelines by ships or submarines, and
damage to cables or pipelines by the laying or repairing of other cables and pipelines (Articles
113–114).
Freedom of fishing
This freedom (Article 116) is now subject to various constraints in the interests of the conservation
and management of the marine living resources (see pp. 319-22 below).
Freedom of scientific research
There is a general right to conduct scientific research in the high seas, except that in the Area it must
be done in conformity with the rules governing the Area (Articles 256–257).
Nationality of ships
Apart from certain exceptions,
43
on the high seas a state can exercise jurisdiction only over ships of
its own nationality; no other state may arrest or detain its ships, even for the purpose of investigation
(Article 97). Therefore, if a ship is involved in a collision or other navigational incident on the high
seas, only its flag state, or the state of nationality of the master or other person in the service of the
ship, may exercise criminal or disciplinary jurisdiction over them.
42. See further p. 345 below.