Continued from last week
In 1976, a second boundary agreement was entered into to extend the maritime the Bay of Bengal, i.e. to the West and East of the boundary which had already been delimited above. Under the terms of this Agreement, the boundary on the Western coast was extended from Adam’s Bridge southwards to a specified position. Article 1 says the extension of the boundary beyond that position will be done subsequently. This was extended in July of the same year (1976) up to another specified position marked on the relevant map by tri junction agreement between India, Sri Lanka and the Maldives. This marks the limit of Sri Lanka’s Exclusive Economic Zone and Pollution Prevention Zone on the South West.
On the North, the boundary is drawn up to 200 nautical miles, (the outer limit of the Exclusive Economic Zone) up to a specific position in the Bay of Bengal. The Agreement states that each party shall have sovereignty over the historic waters, territorial sea, continental shelf and exclusive economic zone. It also provides that each party shall respect the rights of navigation through its territorial sea and exclusive economic zones in accordance with its laws and rules of international law.
The right of innocent passage
Innocent passage which is a right which customary international law recognises may be viewed as a right or privilege given to third states to travel within these waters, while at the same time recognising the jurisdiction of the coastal states. It may be viewed from the point of view of policy as a sensible form of accommodation between the necessities of sea communications and interests of the coastal states. In Sri Lanka, the maritime zones law specifically recognises right of innocent passage and states that ships of all states shall enjoy the rights of innocent passage through the territorial sea.
In keeping with the 1958 Convention, it categories the passage as ‘innocent only so long as such passage is not prejudicial to the peace, good order or security of the Republic’. The proviso to the section states that no foreign warship shall enter or pass through the territorial sea except with the prior consent of and subject to such conditions as may be specified by the Minister. The Act also provides for innocent passage of aircraft through the air space above territorial sea which must be in accordance with the written laws in force. The military aircraft must have prior consent of the Minister as in the case of warship.
The right of foreign merchant ships to pass unhindered through the territorial sea of a coast has long been an accepted principle in customary international law. The doctrine was elaborated in Article 14 of the Convention on the Territorial Sea, 1958, which emphasized that the coastal state must not hamper innocent passage and must publicise any dangers to navigation in the territorial sea of which it is aware.
Passage was defined as navigation through the territorial sea for the purpose of crossing that sea without entering internal waters or of proceeding to or from that sea without entering internal waters or of proceeding to or from internal waters. It may include temporary stoppages but only if they are incidental to ordinary navigation or necessitated by distress or force majeure (See articles 17 and 18 of the 1982 Convention. Passage includes crossing the territorial sea to call at roadsteads or port facilities outside internal waters: article 18 (1) and see Nicaragua Case.
Article 17 of the Geneva Convention on the Territorial Sea 1958 provided that foreign ships exercising the right of innocent passage were to comply with the laws and regulations enacted by the coastal state in particular those relating to transport and navigation.
This was developed in article 21 (1) of the 1982 Convention, which expressly provided that the coastal state could adopt laws and regulations concerning innocent passage with regard to the safety of navigation and regulation of marine traffic; the protection of navigational facilities and other facilities or installations; the protection of cables and pipelines; the conservation of living resources of the sea; the prevention of infringement of the fisheries laws and regulations of the coastal state; the preservation of the environment of the coastal state; and the prevention, reduction and control of pollution thereof; marine scientific research and hydrographic surveys; the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal state.
Passage ceases to be innocent under article 14(4) of the 1958 Convention where it is “prejudicial to the peace, good order or security of the ‘coastal state’ and in the case of foreign fishing vessels when they do not observe laws and regulations or the coastal state may publish to prevent these ships from fishing in the territorial sea.
Submarines must navigate on the surface and show their flags. Where passage is not innocent, the coastal state may take steps to prevent it in its territorial sea and where ships are proceeding to internal waters, it may act to forestall any breach of the conditions to which admission of such ships to internal waters is subject. Coastal states have the power temporarily to suspend innocent passage of foreign vessels where it is essential for security reasons, provided such suspensions have been published and provided it does not cover international straits.
Article 19(2) of the 1982 Convention has developed the notion of innocent passage contained in article 14(4) of the 1958 Convention by the provision of examples of prejudicial passage such as the threat or use of force; weapons practice; spying propaganda; breach of customs, fiscal, immigration or sanitary regulations; willful and serious pollution, fishing; research or survey activities and interference with coastal communications or other facilities.
A wide – ranging clause includes ‘any activity not having a direct bearing on passage’. This would appear to have altered the burden of proof from the coastal state to the other party with regard to innocent passage as well as being somewhat difficult to define. By virtue of article 24 of the 1982 Convention, coastal states must not hamper the innocent passage of foreign ships either by imposing requirements upon them which would have the practical effect of denying or impairing right or by discrimination.
Breach of such laws and regulations will render the offender liable to prosecution, but will not make the passage non – innocent as such, unless article 19 has been infringed. Under article 22 of the 1982 Convention, the coastal state may established designated sea lanes and traffic separation schemes in its territorial sea. The list of activities laid down in article 19(2) is exhaustive so that a ship passing through the territorial sea not engaging in any of these activities is in innocent passage.
Ships in passage are under an obligation to comply with the laws and regulations of the coastal state adopted in conformity with articles 21, 22, 23 and 25 of the 1982 Convention, provided such laws and regulations do not have the effect of denying or impairing the exercise of the right of innocent passage.
The essence of the freedom of the high seas is that no state may acquire sovereignty over parts of them. This is the general rule, but it is subject to the operation of the doctrines of recognition, acquiescence and prescription, where, by long usage accepted by other nations, certain areas of the high seas, bounding on the territorial waters of coastal state may be rendered subject to that state’s sovereignty. This was emphasized in the Anglo Norwegian Fisheries Case.
The high seas were defined in article 1 of the Geneva Convention on the High Seas, 1958 as all parts of the sea that were not included in the territorial sea or in the internal waters of a state. This is reflected in customary international law, although as a result of developments, the definition in article 86 of the 1982 Convention includes: all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a state or in the archipelagic waters of a archipelagic state.
Article 87 of the 1982 Convention (developing article 2 of the 1958 Geneva Convention on the High Seas) provides that the high seas are open to all states and that the freedom of high seas is exercised under the conditions laid down in the Convention and by other rules of international law. It includes inter alia the freedoms of navigation, over flight, the laying of submarine cables and pipelines (subject to Part VI of the Convention, dealing with Continental Shelf) the construction of artificial islands and other installations permitted under international law, (subject to the Part VI of the Convention dealing with the continental shelf) fishing and the conduct of scientific research. Such freedoms are to be exercised with due regard for the interests of other states in their exercise of the freedom of the high seas and also with due regard for the rights under the Convention regarding activities in the International Seabed Area.
The freedom of navigation is a traditional and well recognised facet of the doctrine of high seas as is the freedom of fishing (See Anglo – Norwegian Fisheries Case. This was reinforced by the declaration by the Court in the Fisheries Jurisdiction Cases, that Iceland’s unilateral extension of its fishing zones from 12 to 50 miles constituted a violation of article 2 of the High Seas Convention, which is, as the preamble states, generally declaratory of established principles of international law. The freedom of the high seas applies not only to coastal states but also to states that are landlocked.
The foundation of the maintenance of order on the high seas has rested upon the concept of nationality of the ship and the consequent jurisdiction of the flag state over the ship. It is basically the flag state that will enforce the rules and regulations not only of its own municipal law but of international law as well. A ship without a flag will be deprived of many of the benefits and rights available under the legal regime of the high seas.
Each state is required to elaborate the conditions necessary for the grant of its nationality to ships, for the registration of ships in its territory and for the right to fly its flag. (Article 5 of the High Seas Convention 1958 and Article 91 of the 1982 Convention. The nationality of the ship will depend upon the flag it flies, but article 91 of the 1982 Convention also stipulates that there must be a ‘genuine link’ between the state and the ship (Article 5 of the High Seas Convention, 1958 and 94 of the 1982 Convention). This provision, which reflects ‘a well established rule of general international law was intended to check the use of flags of convenience operated by states such as Liberia and Pannama which would grant their nationality to ships requesting such because of low taxation and the lack of application of most wage and social security arrangements. This enabled the ship to operate at very low costs indeed.
Piracy on the high seas
Piracy is strictly defined in international law and was declared in article 101 of the 1982 Convention to consist of any of the following acts:
(a). Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or private aircraft and directed: (i) on the high seas, against another ship or aircraft or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any state; (b) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a private ship or aircraft; (c) Any act of inciting or of intentionally facilitating an act described in sub paragraph (a) or (b).
The essence of piracy under international law is that it must be committed for private ends. In other words, any hijacking or takeover for political reasons is automatically excluded from the definition of piracy. Similarly, any acts committed on the ship by the crew and aimed at the ship itself or property or persons on the ship do not fall within this category.
Any and every state may seize a private ship or aircraft whether on the high seas or on terra nullius and arrest the persons and seize the property on board. In addition, the courts of the state carrying out the seizure have jurisdiction to impose penalties and may decide what action to take regarding the ship or aircraft and property subject to the rights of third parties that have acted on good faith (Article 19 of the 1958 Convention and article 105 of the 1982 Convention). See also the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 and Protocol, 1989). That fact that every state may arrest and try persons accused of piracy makes that crime quite exceptional in international law, where so much emphasis is placed upon the sovereignty and jurisdiction of each particular state within its own territory.
Piracy on the high seas which is not something new is an international law offence but committed on seas within national jurisdictions it may not come within the Convention definition. Hence it becomes necessary to criminalise all acts of piracy or intent to commit piracy, under the national laws as well. The Indian Ocean is one of the oceans where it is prevalent, off the coast of East Africa and Somalia, Gulf of Aden, Straits of Malacca and the Bay of Bengal.
Sri Lanka’s maritime law makes provision for criminalising acts of piracy under the Piracy Act No 9 of 2001. The Suppression of Unlawful Acts against the Safety of Maritime Navigation Act of 2000 provides for the enforcement of the Rome Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation’ of 1988. This Act does not specifically refer to piracy but to unlawful acts committed on the seas with the general intention of curbing terrorism. The High Court of Colombo or the High Court of Western Province have exclusive jurisdiction to try offences under these Acts.
Article 16(4) of the 1958 Convention on the Territorial Sea declares that:
“There shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign state”.
The 1982 Convention established a new regime for straits used for international navigation. This principle is reaffirmed that the legal status of the waters of the straits in question is unaffected by the provisions dealing with passage.
To be continued next week
