The United Nations Convention on the Law of the Sea (UNCLOS), also

called the Law of the Sea Convention or the Law of the Sea treaty, is the
international agreement that resulted from the third United Nations Conference
on the Law of the Sea (UNCLOS III), which took place between 1973 and 1982.
The Law of the Sea Convention defines the rights and responsibilities of nations
with respect to their use of the world's oceans, establishing guidelines for
businesses,

the

environment,

and

the

management

of

marine natural

resources. 1
The convention introduced a number of provisions. The most significant
issues covered were setting limits, navigation, archipelagic status and transit
regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep
seabed mining, the exploitation regime, protection of the marine environment,
scientific research, and settlement of disputes.
The convention set the limit of various areas, measured from a carefully
defined baseline. (Normally, a sea baseline follows the low-water line, but when
the coastline is deeply indented, has fringing islands or is highly unstable,
straight baselines may be used.)
Internal waters are all waters landwards from the baseline of the territory
(rivers, lakes, bays, etc). Sovereignty over these is the same in extent as
sovereignty over land, and is not subject to the right of innocent passage.
However, in Saudi Arabia v. Aramco the arbitrator said that according to
international law ports of every state must be open to foreign vessels and can
only be closed when vital interests of the state so requires. But according to
Nicaragua v. US, a coastal state may regulate access to its ports.
Bays are well-marked indentations whose penetration is in such proportion
to the width of its mouth as to contain land-locked waters and constitute more
1 https://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea

than a mere curvature of the coast. To be considered a bay, the area of the
indentation must be as large as, or larger than, that of a semi-circle whose
diameter is a line drawn across the mouth of that indentation (the semi-circle
test).
Historic bays are those which are treated by the coastal state as internal
waters on the basis of historic rights acknowledged by other states.
Territorial sea, this is the belt of sea outwards from the baseline and up to
12 nautical miles beyond. Regarding its width, the original rule was the cannon
shot rule, where the width was measured in terms of the range of shore-based
artillery. This later became the 3-mile rule. Under the UNCLOS, the rule is now
12 miles. Take note, however, that where the application of the 12-mile rule to
neighboring littoral states would result in overlapping, the dividing line is instead
a median line equidistant from the opposite baselines. But this equidistant rule
does not apply where historic title or other special circumstances require a
different measurement.
Straits used for international navigation (to navigate between one part of
the high seas or an EEZ and another part of the high seas or an EEZ) are under
the purview of UNCLOS, but the legal regime in such straits in which passage is
regulated in whole or in part by long- standing international conventions in force
specifically relating to such straits is not affected. Through these waters, ships
and aircraft of all countries are allowed transit passage, as long as they
proceeded without delay and without threatening the bordering states.
Archipelagic states are those which are made up wholly of one or more
archipelagos. For these states, the straight baselines are drawn between the
outermost points of the outermost islands, provided these points are sufficiently
close to one another and that within such baselines are included the main islands

and an area in which the water area to land area ratio is between 1:1 and 9:1. All
waters inside these baselines are archipelagic waters.
The Contiguous Zone, This is an area of water not exceeding 24 nautical
miles from the baseline. It thus extends 12 nautical miles from the edge of the
territorial sea. The coastal state exercises authority over that area to the extent
necessary to prevent infringement of its customs, fiscal, immigration, or
sanitation authority over its territorial waters or territory and to punish such
infringement.
The continental shelf ,This refers to (a) the seabed and subsoil of the
submarine areas adjacent to the coastal state but outside the territorial sea, to a
depth of 200 meters or, beyond that limit, to where the depth allows exploitation;
and (b) the seabed and subsoil of areas adjacent to islands. Under specified
circumstances the continental shelf can extend up to a distance of 350 miles.
The coastal state has the right to explore and exploit its natural resources,
to erect needed installations, and to erect a safety zone over its installations with
a radius of 500 meters. These rights do not depend on occupation, effective or
notional, or any express proclamation. This right does not affect the right of
navigation of others. Moreover, this right does not extend to non-resource
material in the shelf area such as wrecked ships and their cargoes. Coastal
states also have the right to regulate, authorize, and conduct marine scientific
research on the continental shelf.
Take note that artificial islands or installations are not islands under
UNCLOS, though coastal states may establish safety zones and prescribe safety
measures around them. Islands do have their own continental shelves.
The exclusive economic zone is an area extending not more than 200
nautical miles beyond the baseline. The coastal state has rights over the

economic resources of the sea, seabed, and subsoil but this right does not affect
the right of navigation and overflight of other states. Coastal states also have the
right to regulate, authorize, and conduct marine scientific research in the EEZ.
The provisions on the EEZ are both a grant of rights to and an imposition
of obligations on coastal states relative to the exploitation, management, and
preservation of the resources found within the zone. Coastal states have 2
primary obligations. First, they must ensure through proper conservation and
management measures that the living resources of the EEZ are not subject to
over-exploitation. This includes the duty to maintain and restore populations of
harvested fisheries at levels which produce a maximum sustainable yield.
Second, they must promote the objective of optimum utilization of the living
resources. They must determine the allowable catch of living resources, and if
they don t have the capacity to harvest the allowable catch, they must grant
access to other states. Highly migratory species of fish and marine mammals are
accorded special protection.
The delimitation of overlapping EEZs between adjacent states is
determined by agreement. And take note that islands have their own EEZs.

Territorial State sovereignty under International Law,It is the right to exercise in a

definite portion of the globe the functions of a State to the exclusion of another
state. According to widely accepted opinion of Judge Huber in the Island of
Palmas

case,

Sovereignty

in

the

relations

between

states

signifies

independence. Independence in regard to a portion of the globe is the right to

exercise therein to the exclusion of any other State, the functions of a State. The
development of the national organization of States during the last few centuries,
and, as a corollary, the development of international law, have established this
principle of the exclusive competence of the State in regard to its own territory in
such a way as to make it the point of departure in settling most questions that
concern international relations.
2 Public International Law book, authors: Nachura, Bernas

Territorial sovereignty belongs always to one, or in exceptional

circumstances to several, States, to the exclusion of all others. The fact that the
functions of a State can be performed by any State within a given zone is, on the
other hand, precisely the characteristic feature of the legal situation pertaining in
those parts of the globe which, like the high seas or lands without a master,
cannot or do not yet form the territory of a State.
The Inherent right to territory, The rights of the coastal State in respect of
the area of continental shelf that constitutes a natural prolongation of its land
territory into and under the sea exist ipso facto and ab initio, by virtue of its
sovereignty over the land, and as an extension of it in an exercise of sovereign
rights for the purpose of exploring the seabed and exploiting its natural
resources. In short, there is here an inherent right. In order to exercise it, no
special legal process has to be gone through, nor have any special legal acts to
be performed. Its existence can be declared but does not need to be constituted.
Furthermore, the right does not depend on its being exercised. It follows
that the notion of apportioning an as yet undelimited area, is quite foreign to, and
inconsistent with, the basic concept of continental shelf entitlement.
Territorial sovereignty is, in general, a situation recognized and delimited
in space, either by so-called natural frontiers as recognized by international law
or by outward signs of delimitation that are undisputed, or else by legal
engagements

entered

into

between

interested

neighbors,

e.g.

frontier

conventions, or by acts of recognition of States within fixed boundaries.

Territorial Sovereignty, as has already been said, involves the exclusive
right to display the activities of a State. This right has as corollary a duty to the
obligation to protect within the territory the rights of other States, in particular
their right to integrity and inviolability in peace and in war, together with the rights

which each State may claim for its nationals in foreign territory. Without
manifesting

its

territorial

sovereignty

in

manner

corresponding

to

circumstances, the State cannot fulfill this duty. 3

Disputes with regards territorial sovereignty, how resolved. If a dispute
arises as to the sovereignty over a portion of territory, it is customary to examine
which of the claiming States possesses a title cession, conquest, occupation, etc.
superior to that advanced by the other State. However, if the contestation is
based on the fact that the other Party has actually displayed sovereignty, it
cannot be sufficient to establish the title by which TS was validly acquired at a
certain moment; it must also be shown that the TS has continued to exist and did
exist at the moment which, for the decision of the dispute, must be considered
critical. This demonstration consists in the actual display of State activities, such
as belongs only to the territorial sovereign.

International settlement of disputes shall be in accordance with Article 3 of

the UN Charter provides that the parties to any dispute, the continuance of which
is likely to endanger the maintenance of international peace and security, shall,
first of all, seek a solution by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or arrangements, or
other peaceful means of their own choice.5
Settlement of Disputes arising from the UN Convention on the Law of the
Sea (UNCLOS). Part XV of the1982 UN Convention on the Law of the Sea
requires States to settle peacefully any dispute concerning the Convention.
Failing a bilateral settlement, Art. 286 provides that any dispute shall be
submitted for compulsory settlement to one of the tribunals having jurisdiction.
These include the International Tribunal for the Law of the Sea (ITLOS), the
International Court of Justice, and arbitral or special arbitral tribunals constituted
under the UNCLOS.
3 Public International Law book, authors: Nachura, Bernas
4 Article 3, UN Charter
5 article 286, UNCLOS

The ITLOS is composed of 21 independent members elected by the

States Parties to the UNCLOS from among persons with recognized competence
in the field of the law of the sea and representing the principal legal systems of
the world. ITLOS has jurisdiction overall disputes and all applications submitted
to it in accordance with UNCLOS and over all matters specifically provided for in
any other agreement which confers jurisdiction on the ITLOS.
In exercising their rights and performing their duties under UNCLOS,
states shall refrain from any threat or use of force against the territorial integrity
or political independence of any State, or in any other manner inconsistent with
the principles of international law embodied in the UN Charter. 6
In the case of North Sea Continental Shelf, Denmark, Germany and the
Netherlands have submitted to the Court certain differences concerning 'the
delimitation as between the Parties of the areas of the continental shelf in the
North Sea which appertain to each of them. The Court is requested to decide
what are the applicable 'principles and rules of international law'. Germany
proposed that delimitation of the continental shelf between the parties is
governed by the principle that each coastal State is entitled to a just and
equitable share. Germany contents that making use of the equidistance method
of Article 6, paragraph 2, of the Continental Shelf Convention, had not become
customary international law and was not under the circumstances the appropriate
method. The equidistance method could not be used where it would not achieve
a just and equitable apportionment of the shelf. As for Denmark and the
Netherlands, delimitation should be governed by the principle of Art. 6, par. 2,
and that where the parties were in disagreement as to the boundary and special
circumstances did not justify another boundary, then the boundary between them
is to be determined by the application of the principle of equidistance from the
nearest points of the baselines from which the breadth of the territorial sea of
6 North sea continental Shelf case

each State is measured. The boundary should be determined on the basis of the
exclusive rights of each Party over the continental shelf adjacent to its coast and
of the principle that the boundary is to leave to each Party every point of the
continental shelf which lies nearer to its coast than to the coast of the other Party.
Netherlands and Denmark argue that the use of this method is not in the nature
of a merely conventional obligation, but is, or must now be regarded as involving,
a rule that is part of the corpus of general international law;-and, like other rules
of general or customary international law, is binding on Germany automatically
and independently of any specific assent, direct or indirect, given by the latter.
This contention has both a positive law and a more fundamentalist aspect. As a
matter of positive law, it is based on the work done in this field by international
legal bodies, on State practice and on the influence attributed to the Geneva
Convention itself,-the claim being that these various factors have cumulatively
evidenced or been creative of the opinion jurissivenecessitatis, requisite for the
formation of new rules of customary international law. In its fundamentalist
aspect, the view put forward derives from what might be called the natural law of
the continental shelf, in the sense that the equidistance principle is seen as a
necessary expression in the field of delimitation of the accepted doctrine of the
exclusive appurtenance of the continental shelf to the nearby coastal State, and
therefore as having an a priori character of so to speak juristic inevitability. The
Court does not agree with the contentions of Netherlands and Denmark. In
considering the equidistance method, the International Law Commission's
discussions reveal that not only was the notion of equidistance never considered
from the standpoint of its having a priori a character of inherent necessity: it was
never given any special prominence at all, and certainly no priority. The Court
notes that the principle of equidistance, as it now figures in Art. 6, was proposed
by the ILC with considerable hesitation, somewhat on an experimental basis, at
most de legeferenda (ideal norm), and not at all de legelataor as an emerging
rule of customary international law. This is clearly not the sort of foundation on
which Art. 6 of the Convention could be said to have reflected or crystallized such
a rule. Denmark & Netherlands further argues that even if, at the date of the

Geneva Convention on the Continental Shelf, no rule of CIL in favor of the

equidistance principle and no such rule was crystallized in Art. 6, such a rule has
come into being since the convention, partly because of its own impact, partly on
the basus of subsequent state practice. The Court does not agree. 7
M/V Saiga (No.2) Case (1999)
The Saiga is a Cypriot oil tanker that was arrested and boarded by
Guinean authorities when it was sailing south of the southern limit of the
exclusive economic zone of Guinea. The applicants are challenging the validity of
the arrest and want damages. Guinea is insisting that they had jurisdiction to
arrest and invoke hot pursuit.
Saiga s Nationality UNCLOS GENUINE LINK TEST. Article 91, paragraph
1, of the Convention provides: "There must exist a genuine link between the
State and the ship." Two questions need to be addressed in this connection.
(a) The first is whether the absence of a genuine link between a flag State
and a ship entitles another State to refuse to recognize the nationality of the ship.
(b) The second question is whether or not a genuine link existed between
the
Saiga and Saint Vincent and the Grenadines at the time of the incident.
EEZ Guinea could only apply its customs laws with regard to artificial islands,
installations and structures. (article 60, paragraph 2). The Tribunal notes that,
under the Convention, a coastal State is entitled to apply customs laws and
regulations in its territorial sea (articles 2 and 21). In the contiguous zone, a
coastal State may exercise the control necessary to:
(a) prevent infringement of its customs, fiscal, immigration or sanitary laws
and regulations within its territory or territorial sea;
(b) punish infringement of the above laws and regulations committed
within its territory of territorial sea.
However, in the exclusive economic zone, the coastal State has
jurisdiction to apply customs laws and regulations in respect of artificial islands,
7 M/V saiga case

installations and structures (article 60, paragraph 2). The Convention does not
empower a coastal State to apply its customs laws in respect of any other parts
of the exclusive economic zone not mentioned above.
Exception State of Necessity (ART 58 - OTHER RULES OF INTERNATIONAL
LAW phrase). 2 CONDITIONS FOR STATE OF NECESSITY TO APPLY NOT
MET. As set out in article 33, paragraph 1, of the International Law Commission's
Draft Articles on State Responsibility, are:
(a) the act was the only means of safeguarding an essential interest of the
State against a grave and imminent peril; and
(b) the act did not seriously impair an essential interest of the In endorsing
these conditions, the Court stated that they "must be cumulatively
satisfied" and that they "reflect customary international law".
Hot Pursuit defense denied (Article 111 UNCLOS) All the requirements must be
cumulatively complied with. Guinea did not comply with several. No visual or
auditory signals to stop could have been given to the Saiga. and the alleged
pursuit was interrupted when the patrol boats were recalled before they resumed
the chase. 8
Camouco Case (2000)
The Camouco is a fishing vessel flying the flag of Panama. Its owner is
"Merce-Pesca (S.A.)", a company registered in Panama. It was boarded by the
French surveillance frigate Florealin the exclusive economic zone of the Crozet
Islands. The French refuse to release the vessel and the Master until a bond is
posted (exhaust local remedies)
Local remedies need not be exhausted in order to file an application.
Article 292 provides for an independent remedy and not an appeal against
a decision of a national court. No limitation should be read into article 292 that
8 camouco case

would have the effect of defeating its very object and purpose. Indeed, article 292
permits the making of an application within a short period from the date of
detention and it is not normally the case that local remedies could
Municipal authorities are allowed to attach provisional liberty with the posting of a
bond provided the amount is reasonable. Article 292 of the Convention is
designed to free a ship and its crew from prolonged detention on account of the
imposition of unreasonable bonds in municipal jurisdictions, or the failure of local
law to provide for release on posting of a reasonable bond, inflicting thereby
avoidable loss on a ship owner or other persons affected by such detention.
Equally, it safeguards the interests of the coastal State by providing for release
only upon the posting of a reasonable bond or other financial security determined
by a court or tribunal referred to in article 292, without prejudice to the merits of
the case in the domestic forum against the vessel, its owner or its crew.
Reasonableness of Bond Amount.The basis is the value of the detained vessel
and of the cargo seized, the amount of the bond imposed by the detaining State
and its form but the value of the vessel alone may not be the controlling factor in
the determination of the amount of the bond or other financial security if there is
no evidence to support the assessment.
Regarding the delimitation of the territorial sea between States with
opposite or adjacent coasts, neither of them is entitled to extend its territorial sea
beyond the median line every point of which is equidistant from the nearest
points on the baselines of each of them, unless they agree to do so, or if historic
title or other special circumstances make it necessary to delimit the territorial
seas in other ways.
The delimitation of the EEZ and continental shelf between States with
opposite or adjacent coasts must be done by agreement on the basis of
international law (ex. equitable principles which have a normative character as

part of general international law). Pending this they may make provisional
arrangements of a practical nature, and they must not jeopardize or hamper the
reaching of a final agreement. If no agreement can be reached within a
reasonable period of time, the parties shall resort to peaceful means of dispute
settlement. State towards which the obligation existed.

In the North Sea Continental Shelf Cases it was held that the equidistance
method did not represent general international law. Since then, certain equitable
principles have been recognized as guidelines for delimitation:
1. Delimitation shall be effected by agreement on the basis of international
law.
2. The principle of non-encroachment by one party on the natural
prolongation of the other.
3. Prevention any cut off of the sea ward projection of the states concerned.
4. Delimitation is to be effected by applying equitable criteria and by using
practical methods capable of ensuring, with regard to the geographical
configuration of the area and other relevant circumstances, an equitable
result.
5.

There is a presumption that the equitable solution is an equal division of

the overlapping areas of the continental shelves of the disputing states. 10
In the case of Philippines vs. China, the tribunal had the following key

rulings:
The so-called "9-dash line" is invalid: "The Tribunal concluded that there
was no legal basis for China to claim historic rights to resources within the sea
areas falling within the '9-dash line.'"
Reclaimed islands have no exclusive economic zone: "The Tribunal noted
that the current presence of official personnel on many of the features is
dependent on outside support and not reflective of the capacity of the features...

9 North Sea continental shelf case

10 http://www.rappler.com/nation/137202-philippines-china-ruling-case-west-philippine-sea

(and) ....that none of the Spratly Islands is capable of generating extended

maritime zones.
"The Tribunal found that it could without delimiting a boundary declare
that certain sea areas are within the exclusive economic zone of the Philippines,
because those areas are not overlapped by any possible entitlement of China."
China has behaved unlawfully: "China had violated the Philippines'
sovereign rights in its exclusive economic zone. The Tribunal further held that
Chinese law-enforcement vessels had unlawfully created a serious risk of
collision when they physically obstructed Philippine vessels."
Beijing has damaged the environment: China's large-scale land
reclamation has "caused severe harm to the coral reef environment and violated
its obligation to preserve and protect fragile ecosystems."
Island building should have stopped during the dispute process: The panel
said it had no jurisdiction over the military standoff at Second Thomas Shoal,
where Chinese and Philippine military and law enforcement vessels are locked in
confrontation.
However, "China's recent large-scale reclamation and construction of
artificial islands was incompatible with the obligations on a state during dispute
resolution proceedings, insofar as China has... destroyed evidence of the natural
condition of features of the South China Sea that formed part of the Parties'
dispute."