Law of the Sea. CDR James Kraska, JAGC, USN Howard S. Levie Chair of Operational Law

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1 Law of the Sea CDR James Kraska, JAGC, USN Howard S. Levie Chair of Operational Law

2 Enduring Forward Presence Deterrence Sea Control Power Projection Expanding Maritime Security Humanitarian Assistance / Disaster Response

3 Coastal States and Maritime Powers THE HISTORY OF THE LAW OF THE SEA HAS BEEN DOMINATED BY A CENTRAL AND PERSISTENT THEME: THE COMPETITION BETWEEN THE EXERCISE OF GOVERNMENTAL AUTHORITY OVER THE SEA AND THE IDEA OF FREEDOM OF THE SEAS. D. P. O Connell 3

4 Naval Considerations Strategic and Operational Directly impacts planning and movement of forces Can we use a nation s airspace? Can we base or stage aircraft and troops there? May necessitate ROE requests E.g.- CONOPS- Entry provisions Tactical Directly impacts planning and ops Impacts where US forces can operate and what they can do there

5 Codification UNCLOS (1958) 1958 GENEVA CONVENTIONS TERRITORIAL SEA/CONTIGUOUS ZONE HIGH SEAS CONTINENTAL SHELF FISHERIES/CONSERVATION UNCLOS II (1960) 5

6 1982 Convention NEGOTIATED TWO MAJOR DIVISIONS NAVIGATIONAL ARTICLES DEEP SEABED MINING ARTICLES 6

7 Pres. Proc US WILL NEITHER SIGN NOR RATIFY THE 1982 CONVENTION DEEP SEABED MINING PROVISIONS ARE UNACCEPTABLE NAVIGATIONAL PROVISIONS CONFIRM EXISTING MARITIME LAW AND PRACTICE AND REPRESENT A FAIR BALANCE OF INTERESTS OF ALL NATIONS 7

8 Pres. Proc US WILL ACCEPT AND ACT IN ACCORDANCE WITH THE NAVIGATIONAL PROVISIONS US WILL RECOGNIZE RIGHTS OF OTHER NATIONS IN WATERS OFF THEIR COASTS AS REFLECTED IN THE CONVENTION 8

9 Pres. Proc US WILL ASSERT ITS NAVIGATION AND OVERFLIGHT RIGHTS CONSISTENT WITH THE CONVENTION US WILL NOT ACQUIESCE IN UNILATERAL ACTS OF OTHER NATIONS THAT RESTRICT NAVIGATIONAL AND OVERFLIGHT RIGHTS 9

10 Zones in the Law of the Sea Internal Waters Territorial Sea Contiguous Zone Exclusive Economic Zone Continental Shelf High Seas The International Seabed

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12 Jurisdiction Internal Waters flows automatically from sovereignty exercised over land territory Territorial Sea (up to 12 seamiles) full sovereignty except for rights of innocent passage Contiguous Zone (up to 24 seamiles) territory outside the territorial sea where coastal states may exercise the control necessary to punish or prevent infringements of its customs, fiscal, immigration or sanitary laws and regulation within its territory or territorial sea

13 Jurisdiction Exclusive Economic Zone/Continental Shelf - Coastal States can establish a 200-nautical-mile Exclusive Economic Zone (EEZ)/a claim for a continental shelf is not necessary - The Coastal state have the right for the use of the living and non-living natural resources, to use the EEZ and the continental shelf for other economic purposes and the right to construct, authorize and regulate the construction of artificial islands and certain installations and structures - in EEZs, all states have freedom of navigation and overflight, as well as freedom to lay submarine cables and pipelines

14 Warships Have complete immunity whilst on the high seas (A 95) Are therefore capable of conducting naval training exercises on the high seas? Is this an element of the freedom of navigation? Does it interfere with the freedom of navigation? Can temporary maritime exclusion zones be declared on the high seas?

15 Normal Baseline

16 Internal Waters Landward of the baseline. Lakes Rivers Bays Harbors Canals Same legal character as the land itself Consent of sovereign to enter

17 Coastal nation has full state sovereignty Subject to Right of Safe Haven/Safe Harbor Internal Waters Internal Waters Include All waters landward of baseline Juridical Bays and Historic Bays Ports and Harbors Rivers, Lakes, Inland Seas, Canals

18 Bay Area Area of semicircle Semi-circle test If bay area > area of semi-circle

19 Straight Baselines BASELINE BASELINE Deeply Indented and cut into A fringe of islands

20 Historic Internal Waters 3-part test for claims for historic internal waters: 1. Exercise of authority over the area of the claiming nation; 2.Continuity of this exercise of authority; and, 3.Attitude & acquiescence of foreign nations.

21 Territorial Sea

22 Territorial Sea Meaning of innocent passage Art 19 Innocent so long as not prejudicial to the peace, good order or security of the coastal State Takes place in conformity with other international law rules Passage is prejudicial if Any threat or use of force Exercise of practice with weapons Act of propaganda Wilful or serious act of pollution Fishing activities Marine scientific research

23 Territorial Sea Rights of the Coastal State To prevent passage which is not innocent Art 25 Temporarily suspend innocent passage To apply certain laws and regulations Art 21 To enforce criminal law: Art 27 Crime extends to the state Crime disturbs peace & good order Assistance has been requested Measures to suppress drug trafficking

24 Territorial Sea Duties of the coastal state Art 24 Not to hamper innocent passage Not to deny the right of innocent passage Not to discriminate in form or fact against ships To give appropriate publicity to dangers to navigation

25 Innocent Passage Any Threat/Use of Force Against Coastal State Weapons Exercise/Practice Intelligence Collection Against Coastal State Act of Propaganda Directed Against Coastal State Launching/Recovering of Aircraft Launching/Recovering of Military Devices

26 Contiguous Zone Law Enforcement Zone Maximum 24 nm from Baseline Coastal State may enforce laws re: Customs Fiscal Immigration Sanitation High Seas Freedoms of Navigation and Overflight Apply

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28 International Strait Connect area of high seas or EEZ with another area of high seas or EEZ May be overlapped by territorial seas No high seas or EEZ route of similar convenience with respect to navigation and hydrographic characteristics. Examples: Gibraltar Hormuz Malacca Northwest Passage Northern Sea Route

29 Transit Passage Continuous and expeditious Unimpeded passage Without notice/consent Shoreline-to-Shoreline Nonsuspendable

30 Archipelagos A State constituted wholly by one or more archipelagoes and other islands, where an archipelago is itself defined as a group of islands or parts of islands, and their interconnection waters which are so closely interconnected as to form, or to be regarded as forming an intrinsic entity

31 Archipelagos Must link main islands of the group Must follow general configuration of the island grouping Most important: ratio of water to land within the baselines must be not less than 1:1 and not more than 9:1

32 Navigational Right Archipelagic Sea Lanes Passage Applies in Designated Archipelagic Sea Lanes. Up to 50 nm Corridor When None Designated, Applies in All Normal Routes Used for International Navigation Unimpeded and Non-Suspendable Continuous and Expeditious Normal Mode" of Transit Surface, Air, Subsurface

33 Limitations on ASLP Passage within an ASL What if a vessel/aircraft strays? Respect for the 10% rule What if a vessel/aircraft strays? ASL Traffic Separation Schemes Must conform to generally accepted international regulations Duties of Ships and Aircraft in ASLP: Art 54 mutatis mutandis

34 ARCHIPELAGIC NAVIGATION

35 Indonesia

36 Exclusive Economic Zones

37 EEZ Maximum 200 nm from Baseline Sovereignty Over Resources Jurisdiction Over Artificial Islands and Structures, Marine Scientific Research, Protection of Environment High Seas Freedoms of Navigation and Overflight Apply

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39 Islands and EEZ Rocks which can not sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf

40 High Seas Beyond Outer Edge of Exclusive Economic Zone Not Subject to Coastal Nation Sovereignty, Jurisdiction, or Control