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Environment and development in coastal regions and in small islands |
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Environment and development in coastal regions and in small islands |
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Legal provision for integrated coastal zone management
Part
2
MARITIME LAW
Today the United
Nations Convention on the Law of the Sea of 1982 provides the necessary
legal foundation for further development of the legislative basis for coastal
zone management. The most significant, practical provisions of this Convention
for a system of integrated coastal zone management are the following:
spatial
limits of the coastal zone, in view of differences in borders of internal
seawaters (including historic waters);
legal
contents and regimes of the territorial sea and contiguous zone;
lawfulness
of the extension of the coastal zone territory into a strait used for
international navigation;
legal
nuances of conventional terminology (“adjoining”, “adjacent”,
“contiguous”);
international legal consequences of “narrow” and “wide” interpretation by the coastal state legislator of the notions of “coastal management” and “coastal zone”.
Chapter
2.1
Concept of Maritime Law: principles, rules, norms and sources of Maritime
Law
At
present, Maritime Law includes both norms of national law, referring to
various branches of law (civil, administrative, criminal, etc.), and norms of
international public and international private law.
Therefore
it has been agreed that modern Maritime Law should have three constituents:
National
law;
International
public law;
International private law.
National Maritime Law includes norms from various branches
of the law. This is due to the complexity of maritime operations and the need to
cover the broad set of questions linked to activities at sea.
It
is obvious, that national Maritime Law should be part of the legal system of
states that have coastal zones under their jurisdiction.
In
the Russian Federation this provision can be illustrated by the following
example. A contract to ship cargo, rescue at sea, marine insurance, etc., are
regulated by norms of civil law (in particular, by the Civil
Code of the Russian Federation), the order of release for vessels to sail
from ports of the Russian Federation is defined by norms of administrative law
(Article 111, Administrative Code), and the responsibility of captains of
Russian vessels to offer aid at a marine disaster is specified in the norms of
criminal law (Article 270, Criminal Code of the Russian Federation).
Thus, national Maritime Law is
made up of norms from various branches of national law, united by a common
subject of legal regulation: the use of the sea in all its forms.
International
public Maritime Law
International public Maritime Law is characterized by the
quantity and complexity of regulations on the use of the World Ocean. It was not
created as a whole, but developed gradually in response to prevailing
conditions. There were two distinct stages in the history of its development.
The
first Geneva Conference of the United Nations on the Law of the Sea in 1958
marked the beginning of the first phase. It resulted in four Conventions on:
the territorial
sea and the contiguous zone; the continental
shelf; the high
seas; fisheries and the protection of the living resources of the
high seas.
The second
United Nations Conference on the Law of the Sea was held in 1960. Its aim was to
establish a uniform width for territorial waters around the world. No agreement
was reached.
The
beginning of the second stage in development of Maritime Law was marked
by the third United Nations Conference that was dedicated to the development and
introduction into international practice of norms and rules on the use of the
World Ocean resources and “rules of conduct” in the Ocean. The Conference
lasted for an unusually long time - from 1973 to 1982 (the longest conference in
the history of United Nations) and was very successful. It resulted in a
comprehensive international legal act the UN
Convention on the Law of the Sea of 1982. The convention of 1982 is
unique in having a universal character. The Convention came into force on
November 16, 1994. Initially 119 states were signatories to it. Russia ratified
it on February 26, 1997 and there are now 126 parties to the convention
including the EU.
What
did this Convention contribute to the development of international Maritime Law?
It
acknowledged, supplemented and developed a number of provisions stipulated
in the Geneva
Convention of 1958. Thus it put into law rules and norms of Maritime Law
that had already been verified in practice.
It
introduced new provisions so that the Convention now consists of 17 parts
including 320 articles and 9 appendices.
The
1982 Convention precisely defined, for the first time, the boundary of the
territorial sea that can be claimed by coastal states. It is limited to 12
nautical miles.
A compromise on the demands by some states for territorial rights up to 200 miles offshore was embodied in the concept of the exclusive economic zone.
Laws
to govern research and exploitation in areas of international seabed were
established.
The
concept of archipelagic waters was introduced for the first time.
In
view of demands by coastal states for wider territorial seas the right of
transit passage through international straits was defined.
The
principle provisions of modern Maritime Law that constitute international public
maritime law fall into three categories.
The
first set of conventions regulate the legal regime
of maritime areas. These are the UN
Convention on the Law of the Sea of 1982, the Convention
on the Territorial Sea and the Contiguous Zone of 1958, the
Convention
on the High Seas of 1958, the Convention
on the Continental Shelf of 1958, the International Convention on Protection
of Underwater Telegraph Cables of 1884, etc. There are also agreements
regulating straits, rivers and canals, including the
Convention
of the Suez Canal of 1888, respecting the free navigation of the Suez
maritime Canal, the Convention
on the Regime of the Straits of 1936, the Convention
on the Regime of Navigation on the Danube of 1948, the
Agreement
on the Panama Canal of 1977 and a number of others.
The
second set of regulations relate to the safety of navigation. The principle act
in this area is the International
Convention for the Safety of Life at Sea of 1974, with subsequent Amendments
and Protocols, known as SOLAS (from “Safety Of Life at Sea”). Other
regulations on navigation are: the International
Convention on Cargo Mark of 1966, changed by the Protocol
of 1988; the International
Convention on Tonnage Measurement of Ships of 1969; the International
Convention on the International Regulations for Prevention Collision at Sea
of 1972 with subsequent Amendments; the International
Convention on Standards of Training, Certification and Watching for Sea Farers
of 1978, changed
by the Conference of 1995; the International
Convention on Maritime Search and Rescue of 1979, etc.
Other
conventions are intended to protect the marine environment. The most significant
is the International
Convention for the Prevention of Pollution from Ships of 1973, which was changed
according to the Protocol of 1978 with subsequent Amendments (MARPOL 73/78).
Other international agreements on marine environmental protection are the: International
Convention Relating to Intervention on the High Seas in Cases of Oil Pollution
Casualties of 1969; the Protocol on Intervention on the High Seas in Cases
of Pollution Casualties by Substances Other Than Oil of 1973; the International
Convention on Civil Liability for Oil Pollution Damage of 1992; the International
Convention on the Creation of an International Fund for Compensation of Damage
from Pollution by Petroleum of 1992; the Convention
on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of
1972. Part
XII of United Nations Convention on the Law of the Sea of 1982
“Protection and Preservation of the Marine Environment” defines the
modern international legal regime of marine environmental protection and may be
considered as a constituent of international environmental law (Avramenko,
2001a, Section I).
Although
the conventions and agreements listed above are the source of most international
public Maritime Law, there are also significant contributions from regional
conventions and bilateral agreements.
Chapter
2.2
Maritime
areas and the main provisions of their legal regime
According to the current international legal
classification of maritime areas, the World Ocean is divided into three legal
categories:
Maritime areas: being
an integral part of a coastal state’s territory within the limits of its
sovereignty (internal waters, territorial seas);
Areas, which are not
included in the coastal state territory, but are under its jurisdiction
(exclusive economic zone, contiguous zone, continental shelf);
Areas under neither
sovereignty, nor jurisdiction of any state (high seas) (Avramenko,
2001a,
Foreword).
It
is clear that the legal regimes of these basic categories of maritime areas
cannot be uniform. So, for example, in territorial waters, in contrast to
internal waters, there is the right of innocent passage. No less significant
differences occur in relation to the jurisdiction of a coastal state in the
contiguous and exclusive economic zone in comparison with the continental shelf.
The use of maritime resources in special areas such as international straits,
canals, rivers, archipelagic waters and the waters of the Arctic and the
Antarctic regions pose particularly complex legal problems.
Internal waters are defined as
waters on the landward side of the baseline, which is used for measuring the
width of territorial waters. According to Maritime Law the following are
included in internal waters:
Ports;
Waters
between a shore and straight baselines, used to measure the breadth of the
territorial waters;
Internal
seas, i.e. the seas surrounded by the land territory of one or several
states;
Bays
with entrances not more than 24 nautical miles wide;
Historic
waters, including historical bays irrespective of the width of the entrance.
Thus
the United
Nations Convention on the Law of the Sea of 1982 treats a bay as 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 that indentation. When the entrance
to a bay exceeds 24 nautical miles, a straight baseline shall be drawn within
the bay in such a manner as to enclose the maximum area of water that is
possible with a line of that length.
The
restriction above does not apply to so-called “historic” bays. Where the use
of the coast and coastal resources is of particular significance. Three factors
serve as the basis for including bays and other “historic” waters in
internal waters:
Sovereignty
has been claimed by the coastal state for a long period of time;
The
bay is of important economic, defensive and strategic significance to the
coastal state;
The
majority of states have implied recognition of the bay as internal water.
If
certain specified factors are present it is accepted that a bay is not simply
“historic”, but is under the jurisdiction of the corresponding state.
Therefore countries, whose territory includes the coastal zone, have
“historic” bays within their borders as a rule. Normally these bays are well
known and consequently there is no necessity to mention their “historic”
nature. The main ones are: in the Russian Federation Peter the Great Bay and
Penzhin Bay in the Far East; in Europe the Bristol Channel, Moray Firth,
Conception (Great Britain), Cancal (France); in North America Hudson Bay
(Canada), Delaware Bay, Monterey Bay, Chesapeake Bay, Santa Monica Bay (USA).
Thus,
if in general the legal regime of internal seawaters as parts of a state
territory is determined mainly by the coastal state, it should be in agreement
with regulations of international Maritime Law.
Territorial seas are waters that form a belt around the land that is up to 12 nautical miles wide. They adjoin to internal seawaters, directly to the coast (where there are no internal waters) or to archipelagic waters depending on the circumstances. The breadth of the territorial sea is measured from baselines and being part of a state’s territory is under its sovereignty. Roadsteads that are normally used for loading, unloading and anchoring ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea (Article 12 of the Convention of 1982).
The right to passage in territorial seas is determined and defined in International Maritime Law as navigation through the territorial sea for the purpose of: traversing that sea without entering internal waters; proceeding to or from internal waters. According to the provisions of the Convention on Territorial Seas and the Contiguous Zone of 1958 (Article 14) the passage, taking place in conformity with articles of the Convention and with other rules of international law, is innocent so long as it is not prejudicial to the peace, good order or security of a coastal state. To avoid any confusion the notion of innocent passage was made explicit in the UN Convention on the Law of the Sea of 1982.
At the beginning of the twenty
first century 119 of the 151 coastal states worldwide had established 12-mile
wide territorial seas. These states include the Russian Federation, the USA,
China, India, France, Italy, Ukraine, Latvia and Lithuania. Some states have
opted for territorial seas significantly less than 12 miles wide. Jordan and
Singapore have limited it to 3 miles, Finland and Norway - to 4 miles, Greece
and Turkey - to 6 miles. In signing the United
Nations Convention on the Law of the Sea some states (Argentina, Brazil,
Chile, Ghana, etc.) agreed to reduce their territorial seas to the 12 nautical
miles agreed by the world community in 1982. Currently 130 states have limited
their territorial seas to 12 miles in accordance with the Convention.
Contiguous
zone waters constitute a belt of sea, adjoining to the territorial waters of a
coastal state which, according to United
Nations Convention on the Law of the Sea of 1982, may
not extend beyond 24 nautical miles from the baseline from which the breadth of
the territorial sea is measured. In the contiguous zone the coastal state has
the right to some defined kinds of control.
The
use and control of the contiguous zone is defined in the Geneva
Convention of 1958 on Territorial Seas and the Contiguous Zone. Article 24
of this Convention says, that:
In a zone of the high seas contiguous to its territorial sea, the coastal state may exercise the control necessary to:
Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea;
Punish infringement of the above regulations committed within its territory or territorial sea.
The
contiguous zone may not extend beyond twelve miles
from the baselines from which the breadth of the territorial sea is
measured.
Where the coasts of two states are opposite or adjacent to each other, neither of the two states is entitled, failing agreement between them to the contrary, to extend its contiguous zone beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of the two states is measured.
The
current Russian Federation Law “On Internal Seawaters, Territorial Seas and
Contiguous Zone of the Russian Federation” (adopted in 1998) defines the
contiguous zone of the Russian Federation as a belt of sea disposed outside and
adjacent to the territorial sea, whose external border is 24 nautical miles from
the baselines from which the breadth of the territorial sea is measured (Avramenko,
2001a, Section II).
Fifty-five states have now established a contiguous zone of 24 nautical miles and less. Only Syria has declared a contiguous zone of more than 24 nautical miles (41 nautical miles).
Various
countries have declared various other zones: sanitary zones by Arab countries;
fiscal and immigration zones by India; security zones by Burma, India, Pakistan,
Saudi Arabia, Sudan and Vietnam. Zones of the criminal jurisdiction, neutrality,
pollution prevention etc. have been established, often by states that have
recently gained political independence.
International Maritime Law concerning the high seas has no direct relation to the coastal zone but knowledge of its basic provisions is necessary for complete understanding of the law governing the coastal zone.
The
term “high seas” means all parts of the sea that are not included in the
territorial sea or in the internal waters of a state. The high seas being open
to all nations, no state may validly subject any part of them to its
sovereignty.
Obviously,
the legal regime of the high seas unlike other kinds of maritime areas is
regulated only by norms of international law. Two of the sources of
international law concerning the high seas are the Convention on the High Seas
of 1958 and the United Nations Convention on the Law of the Sea of
1982.
One of the most important and distinctive features of the
high seas is that it is open, in full sense of this word to all states, both
coastal and land-locked.
According to Convention on the High Seas of 1958 freedom
of the high seas includes:
Freedom of
navigation;
Freedom to
fish;
Freedom to lay
submarine cables and pipelines;
Freedom to fly
over the high seas.
The
convention of 1982 extended the concept of freedom of the high seas to include
two additional items:
Freedom to
construct artificial islands and other installations permitted under
international law;
Freedom to do
scientific research.
Thus
freedom of the high seas is not absolute. States may exercise the freedoms
specified above, provided that they take into account the interests of other
countries. Modern international law maintains the principle of freedom of the
high seas, and this is the foundation of the legislation that governs navigation
at sea. All states, whether coastal or not, have the right to allow ships to
sail under their flag. Ships can only sail under the flag of one state and are
subject exclusively to that state’s jurisdiction while at sea. However, naval
vessels and other ships and aircraft on government service have the right of
interference on the high seas if international maritime law is being violated.
In other waters law enforcement is in the hands of the sovereign state.
The
Convention on the High Seas of 1958 defines cases and rules when such
interference can take place:
on the basis of
an existing international treaty;
if the ship is
engaged in piracy;
if the ship is engaged in the slave trade;
if though
flying a foreign flag or refusing to show its flag, the ship is, in reality, of
the same nationality as the warship;
in executing
the right of hot pursuit.
In
recent years an additional reason for interfering on the high seas appeared:
pollution. In 1969 an International Convention Relating to Intervention on the
High Seas in Cases of Oil Pollution Casualties was adopted. Thus international
Environmental Law as well as international Maritime Law apply to the high seas.
The Convention gave coastal states the right to interfere on the high seas to
prevent, reduce or eliminate the threat of oil pollution by a foreign vessel due
to an accident on the high seas. As oil is not the only marine pollutant a
Protocol on Intervention on the High Seas in Cases of Pollution Casualties by
Substances Other Than Oil was introduced in 1973.
The exclusive economic zone is an area beyond and adjacent to the territorial sea. It is subject to the specific legal regime established by United Nations Convention on the Law of the Sea of 1982. This means, that the regime of the exclusive economic zone cannot be established by the coastal state at its own discretion.
Specific
features of the exclusive economic zone are:
The exclusive
economic zone is beyond the territory of any state and not under the sovereignty
of any state. The rights of a neighboring coastal state in this zone are
exceptionally limited in character;
The exclusive
economic zone is the result of a compromise between states interested in
optimizing the use of their coastal resources. Special attention was given to
the question of the exclusive economic zone during the preparation and course of
the Third UN Conference on the Law of the Sea;
Many states
(particularly countries of Asia, Africa and Latin America have insisted on
economic zones 200 nautical miles wide; increased from the normal 12 nautical
miles). 200 nautical miles from the baseline from which the width of the
territorial sea is measured is now the limit for the exclusive economic zone.
The concept, rules of use and territorial limitations on the exclusive
economic zone are fixed in United Nations Convention on the Law of the Sea of
1982.
According to the provisions of this Convention a coastal state has the following rights within the limits of the exclusive economic zone:
sovereign rights for the purpose of exploring and exploiting, conserving
and managing the natural resources, whether living or non-living, of the waters
superjacent to the seabed and of the seabed and its subsoil, and with regard to
other activities for the economic exploitation and exploration of the zone, such
as the production of energy from water, currents and winds;
jurisdiction as provided for in the relevant provisions of this
Convention with regard to:
establishment
and use of artificial islands, installations and structures;
marine
scientific research;
protection and
preservation of the marine environment;
other rights and duties provided in the Convention.
While
exercising these rights, the coastal state shall have due regard to rights of
other states in their exclusive economic zone (Avramenko,
2001a, Section I).
Thus,
the coastal state within the framework of the exclusive economic zone has:
first, not
sovereignty, but sovereign rights, i.e. rights established for strictly defined
purposes and in precisely limited amounts;
second, sovereign
rights are established only for the purpose of exploring and exploiting,
conserving and managing living or non-living natural resources, that, in
particular, means the right of coastal states to exercise sovereignty on the use
of all fish resources (including those attached to the seabed e.g., crustaceans
etc.), mineral resources
(oil, gas, etc.), and also energy produced from the water, currents and wind;
third, the
specified rights have an exclusive character, no other state may engage in the
activity, set out in the convention, in the exclusive economic zone of another
state without that state’s permission.
fourth, the
coastal state has exclusive jurisdiction over artificial islands, installations
and structures.
The following rights are delegated to coastal states:
Only the
coastal state has the right to exercise jurisdiction in relation to any
violations of marine environmental protection within its exclusive economic
zone;
Only the
coastal state has the right to permit marine scientific research in its
exclusive economic zone.
The coastal state can realize only those rights, and perform only those duties, which are stipulated in the Convention of 1982. In other words, no coastal state can exercise any rights, which are not provided for in the Convention (for example, to control navigation of foreign ships, customs or medical controls, etc.).
So
although coastal states have sovereign rights and jurisdiction in their
exclusive economic zone, other states have the right to navigate, over fly, lay
submarine cables and pipelines, and other internationally lawful uses of the sea
related to these freedoms, such as those associated with the operation of ships,
aircraft and submarine cables and pipelines, and compatible with the other
provisions of the 1982 Convention (Article 58, Item 1) (Avramenko,
2001a,
Section I).
Satellite
communication between foreign merchant ships and coastal services using the
international organization of maritime satellite communications (INMARSAT)
system is also a right within the exclusive economic zone.
At
the beginning of the XXI century 96 states had established exclusive economic
zones, and 25 states had also declared fishing zones of up to 200 nautical miles
around their coasts.
Chapter
2.3
Straits
are given special attention in international Maritime Law because they occupy
such a significant part of the coastal zone.
They
are the natural maritime passes connecting the high seas, or the seas and the
oceans. Some straits due to their geographical position, scale and dynamics of
use are used intensively for international navigation. In international Maritime
Law they are called international straits.
Part III of the
United Nations
Convention on the Law of the Sea, 1982, “Straits used for international
navigation” optimizes the interests both of the countries using international
straits, and the coastal states located along the straits. In particular,
Article 34 of the Convention says, that the regime of passage through straits
used for international navigation shall not in other respects affect the legal
status of the waters forming such straits or the exercise by the states
bordering the straits of their sovereignty or jurisdiction over such waters and
their air space, bed and subsoil (International Maritime Law in Documents.
Moscow, 2000, Section X, Part 3, p.431).
The definition of transit passage is given in
Section 2, Part III, of the Convention: transit passage is the freedom of
navigation or over flight of a strait solely for the purpose of continuous and
expeditious transit of the strait.
The
significance of the definition is evident in straits where territorial waters of
more than one state overlap, as is the case in a significant number of major
international straits. Free transit passage is essential to merchant shipping.
The 1982 Convention also provides for the interests of the states that border straits in terms of navigational safety, fishery, prevention of pollution, compliance with customs, fiscal, immigration and sanitary regulations. Vessels on transit passage should comply with generally accepted international regulations, procedures and practices for safety at sea, and with generally accepted international regulations, procedures and practices for prevention, reduction and control of pollution from ships.
Foreign
vessels, while exercising the right of transit passage, should refrain from any
activities leading to the violation of the principles of international law
embodied in the Charter of the United Nations and to refrain from any
activities, other than those incident to their normal modes of continuous and
expeditious transit, unless rendered necessary by force majeure.
According
to the Convention transit passage does not apply if there is a route through a
strait that keeps to the high seas or the exclusive economic zone that is of
similar convenience with respect to navigational and hydrographical
characteristics.
States
bordering straits may designate sea-lanes and prescribe traffic separation
schemes within the straits to promote the safe passage of ships. The states
should respect the following requirements:
sea-lanes and traffic separation schemes shall conform to generally
accepted international regulations;
before designating or substituting sea lanes or prescribing or
substituting traffic separation schemes, states bordering straits shall refer
proposals to the competent international organization with a view to their
adoption;
states bordering straits shall clearly indicate all sea lanes and traffic
separation schemes designated or prescribed by them on charts to which due
publicity shall be given.
The 1982 Convention does not cover the Black Sea and the
Baltic Straits these are regulated by special international conventions.
The Black Sea Straits is a major international shipping
route that connects the Black Sea and the Mediterranean Sea. The Straits consist
of the Bosporus Strait (length 31 km, width 0.7 km - 3.7 km), the
Marmara Sea (length 222 km, width 27 km – 74 km) and the
Dardanelles Strait (length 70 km, width 1.3 km – 2 km). It is
regulated by the Montreux Convention of
1936.
The Baltic Straits, or Danish Straits as it is sometimes
called, consist of three straits - the Great Belt, the Little Belt and the
Sound. It is the only waterway connecting the Baltic Sea with the North Sea and
the Atlantic Ocean.
The
use of the Baltic Straits by merchant shipping has a long history. It is
governed by the Copenhagen the Convention which came into force on March 14,
1857. Nowadays this document is recognized as the source of law.
Canals are accorded a special place in international maritime law because:
canals are artificially created shipping ways;
being artificial canals were dug at one time by someone and equipped for
navigation;
canals are at key nodes of international shipping lanes and neighboring
countries sometimes see opportunities to increase their role in world politics
through their control of the canal;
canals connect
the high seas and consequently are major waterways of international value and in
this respect they differ significantly from other internal waters of a state,
for example, national rivers;
canals have an
important and significant status defined by their geographical position, as all
of them form an immediate connection between vast areas of the high seas. For
example, the Panama Canal links the Pacific and Atlantic Oceans, the Suez Canal
- the Mediterranean Sea and the Red Sea and the Indian Ocean. The Kiel Canal
connects the Baltic Sea with the North Sea and the North Atlantic Ocean;
canals are of
international important for navigation In this respect some canals are of
greater importance than many international channels and straits.
In terms of commercial navigation and traffic density the
Suez Canal is the most important canal in the world.
Regulations
for the Suez Canal were established in 1888 by the Convention of Constantinople.
This was the first treaty in the history of international maritime law to grant
free passage within a canal. Article 1 prohibits interference with vessels in
the canal and so guarantees free passage in peacetime and war. Article 2
prohibits obstruction and interference with the security of the canal and its
branches.
The entire length of the Kiel Canal (98.7 km) is
within German territory. It is 102 meters wide at the surface, 42 meters wide at
its bed and the depth of the fairway is 11.3 meters. The canal connects the
North Sea to the Baltic Sea and saves a journey of 685 km through the
Baltic Straits.
Navigation
in the Canal is regulated by the Navigation Rules of the Kiel
Canal, which gives
freedom of passage to merchant vessels of all countries after payment of transit
fees and receipt of a passage certificate. Vessels not fit to sail in the Canal
may be refused passage.
The Panama Canal connects the Gulf of Panama in the
Pacific Ocean with the Gulf of Mosquitoes in the Caribbean Sea.
The
Panama Canal started to function as a shipping line on August 15, 1914, but was
not open to international shipping until 1920. It is now a neutral international
waterway open to vessels of all countries on conditions of full equality and
non-discrimination.
On
December 31, 1999 the Panama Canal passed under the sovereignty of Panama
according to the Torrijos-Carter Treaty of 1977. At this point the Canal became
a government enterprise.
Chapter
2.4
Archipelagic waters
Archepelagic
waters are the waters inside and around an archipelago. The United Nations
Convention on the Law of the Sea of 1982 (Article 46) treats “archipelago”as
a group of islands, including parts of islands, interconnecting waters and other
natural features which are so closely interrelated that such islands, waters and
other natural features form an intrinsic geographical, economic and political
entity, or which historically have been regarded as such (International Maritime
Law in Documents, 2000, Section X).
The
largest and the most well known archipelagic states are Indonesia, the
Philippines and Fiji. On attaining sovereignty many island states have became
more interested in how to profit from the waters surrounding them and have in
recent decades claimed sovereignty over waters traditionally recognized as the
high sea.
Changes
in international Maritime Law can only be made through multilateral
negotiations. The III Conference on the Law of the Sea examined this issue of
archepelagis states and the resulting 1982 United Nations Convention contains a
number of special provisions on the legal regulation of archipelagic waters.
The Convention stipulates the right of an archipelagic state to draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that these baselines include within them the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. Also these baselines shall not depart to any appreciable extent from the general configuration of the archipelago. The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines (Avramenko, 2001a, Section I).
As
archipelagic waters, as a rule, were widely used for international navigation,
by analogy to territorial waters the United Nations Convention on the Law of the
Sea of 1982 reserves, that under the condition of respecting the regime of
internal waters within the limits of archipelagic waters, ships of all states
have the right of innocent passage through archipelagic waters.
Much of
the research and exploitation of the World Ocean is centered on the continental
shelf. The continental shelf is extremely rich in various resources, among which
oil is of special significance for the world economy.
According
to the Convention of 1958 adopted by the first Geneva Conference on the Law of
the Sea, the continental shelf is the seabed and subsoil of the submarine
areas adjacent to the coast, but outside the area of the territorial sea, to a
depth of 200 meters or, beyond that limit, to where the depth of the superjacent
waters admits of the exploitation of the natural resources of the said areas,
and the seabed and subsoil of similar submarine areas adjacent to the coasts of
islands. Thus the Convention of 1958 establishes two criteria for the definition
of the external border of the continental shelf:
Depth of 200m;
Technical
availability (so-called exploitability criterion).
The 1958 legal definition of the continental shelf favors some states and not others. The continental shelf adjacent to some states is wide, shallow and does not descend steeply. For such states (e.g. Argentina) the depth criterion is favorable in determining the extent of their shelf. Other states (e.g. Chile, Peru and Spain) have a very narrow shelf with deep water close to the shore. For these states the depth criterion is extremely unprofitable. The exploitability criterion is even more unfair as it favors technologically advanced states over those less able to exploit hard to reach natural resources
So
during the Third United Nations Conference on the Law of the Sea a new and more
precise definition of the continental shelf was negotiated. This definition is
included in the 1982 United Nations Convention on the Law of the Sea and states
that: the continental shelf comprises the seabed and subsoil of the
submarine areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin,
or to a distance of 200 nautical miles from the baselines from which the breadth
of the territorial sea is measured where the outer edge of the continental
margin does not extend up to that distance. If the continental margin extends
beyond 200 nautical miles from the shore, the outer limits of the continental
shelf shall not exceed 350 nautical miles from the baselines from which the
breadth of the territorial sea is measured or shall not exceed 100 nautical
miles from the 2500 meters isobath.
The
1982 Convention retained, practically unchanged, the 1958 Convention’s
provisions on exploration and exploitation of the continental shelf by the
sovereign state (Avramenko, 2001a, Section I).
However,
the concept of the continental shelf exists not only in the legal meaning. In
geographical science, for example, the continental shelf is defined as a
“rather narrow band of the seabed framing a continental massif which external
margin quickly steps towards the ocean deeps” (A Glossary of Geographical
Terms, 1975, p.229).
From
the geologic-morphological point of view the continental shelf is the flat part
of a continent extending under seawater up to the place where it sharply
transforms into the continental slope.
Thus,
the legal concept of the continental shelf is wider than geographical and
geologic-morphological ones, as it includes besides the shelf itself, coastal
areas of the seabed where the continental shelf is absent in the direct sense,
and also areas of the seabed beyond the limits of the continental shelf. Also,
from the geographical point of view the shelf begins at the coast; from the
legal point it begins at the outer boundary of the territorial sea, as the
territorial sea, the seabed and subsoil within the territorial waters form part
of the territory of the coastal state. The continental shelf outside territorial
waters is not part of state territory, but coastal states enjoy certain rights
within the continental shelf beyond their territorial waters.
Russia
occupies the one-seventh of the world’s landmass and has the most extensive
coastal zone in the world. As such it has always shown a considerable interest
in the question of the continental shelf. The Russian Federation is subject to
international law so in accordance with international agreements and the United
Nations Convention on the Law of the Sea the Law “On the Continental Shelf of
the Russian Federation” was adopted in 1995.
According
to this Law the continental shelf of the Russian Federation includes the seabed
and subsoil of the underwater areas outside the territorial seas of the Russian
Federation to the extent of the natural continuation of its land territory up to
the outer boundary of underwater continental margin. This definition of the
continental shelf also applies to all islands of the Russian Federation.
The
outer boundary of the continental shelf of the Russian Federation is defined as
200 nautical miles from baselines, i.e. the lines from which the breadth of the
territorial sea is measured, provided that the outer boundary of the underwater
continental margin does not extend beyond 200 nautical miles. If the underwater
continental margin extends beyond 200 nautical miles from the specified
baselines, the outer boundary of the continental shelf is said to coincide with
the outer boundary of the underwater continental margin defined according to
norms of international law.
This
Law on the continental shelf the Russian Federation establishes the following
rights:
Sovereign
rights to explore the continental shelf and develop its mineral and living
resources, being exclusive in the sense that if the Russian Federation does not
exercise them, nobody else can do so without its consent;
Exclusive
rights to permit and regulate drilling on the continental shelf for any
purposes;
Exclusive
rights to permit, regulate construction, operate and use artificial islands,
installations and structures. The Russian Federation exercises jurisdiction over
these including customs, fiscal, sanitary, safety and immigration laws and
rules;
Jurisdiction in
relation to:
Marine
scientific research;
Protection and
conservation of the marine environment;
Laying and
exploitation of submarine cables and pipelines.
The
Law reserves, that Russia’s rights on the continental shelf do not touch upon
the legal status of its waters or the airspace above these waters.
The
Law also provides, that artificial islands, installations and structures cannot
have the status of islands and have no territorial sea, exclusive economic area
or continental shelf. Safety zones shall be established not exceeding a distance
of 500 meters around artificial islands, installations and structures, measured
from each point of their outer edge (International
Maritime Law in Documents, 2000, Section X, pp.520-522).
Delimitation
of the continental shelf between the Russian Federation and neighboring states
is based on international treaties of the Russian Federation or norms of
international law.
The
outer boundaries of the continental shelf and lists of geographical coordinates
with basic geodetic data and delimitation lines determined by Government of the
Russian Federation are indicated on charts of appropriate scale and should be
published in the “Notice for Navigators”.
The polar or
high-latitude regions occupy a special place in international Maritime Law. The
two regions involved are the Arctic and the Antarctic; and it is the Arctic that
is of interest to Russia.
The
Arctic is the
northern polar region of the globe. It is made up of the Arctic Ocean, parts of
the Pacific Ocean and the Atlantic Ocean, and the edges of Eurasia and North
America within the polar circle (66°33¢N).
Eight countries have territory in the Arctic: Russia, the USA (Alaska), Canada,
Denmark (Greenland), Norway, Iceland, Sweden and Finland. These subarctic
countries have contributed most to research and development in the region (Avramenko,
2001a, Section I) being
unique in many respects: geopolitical, ecological, economic and
military-political.
The
Arctic is of global importance because it has a significant effect on the
climate and weather of the northern hemisphere. More locally, its natural
resources (including large, recently opened oil and gas fields) make it of
economic importance. Its position means that it is both strategically important
and a useful waterway and air route connecting the east and west. These factors
explain the attention that is currently being paid to the legislation that
governs the region.
Historically
subarctic countries have claimed special interests in the Arctic. This was
codified in international legal doctrine as the “sectoral theory”, which
gave a subarctic state special rights in the polar “triangle” bounded by the
state’s coast and the meridian lines to the North Pole. Canada was
particularly active in defending this division of the Arctic. In a number of
national legislative acts (for example, the Law on the Northern Territories of
1925), and in official declarations Canada defended its sovereignty to land,
islands and even maritime areas to the north of the Canadian coast.
Maritime regions of the Arctic, including those permanently covered with ice, are governed by legal regimes based on the norms of international Maritime Law. So internal waters, territorial seas, exclusive economic zones, continental shelves and high seas are defined in the same way as in the rest of the world.
Northern Seaway
lanes lie partially in the high seas and partly in Russian waters. This means
that the Seaway is categorized as a national communication lane and that Russia,
as the coastal state, has exclusive rights and duties. Legislation governing the
use of the Seaway by foreign vessels is based on Russian Federation laws that
govern access and navigation in internal waters, territorial seas and the
exclusive economic zone.
At present, the Northern Seaway is regulated by Rules of Navigation on the Northern Seaway Lines, which came into force on July 1, 1991. The Rules allow vessels of any nationality access to the Seaway on a non-discriminatory basis. The Seaway is regulated by the Ministry of Transport of the Russian Federation through the Administration of the Northern Seaway and is operated by Russian navigation services that draw staff from Murmansk and Far East maritime shipping companies.
