A changing international law of the sea

Internal waters, territorial seas, international straits and archipelagic waters are marine spaces under the territorial sovereignty of the coastal State. However, the use of the marine environment for sea communication necessitates the freedom of navigation through those spaces. Consequently, marine spaces under territorial sovereignty are part of the territory of the coastal State and the highway for sea communication at the same time. The dual nature of marine spaces gives rise to the fundamental question of how it is possible to reconcile the territorial sovereignty of the coastal State and the freedom of navigation. With that question as a backdrop, this chapter will examine the following issues in particular: What is the coastal State’s jurisdiction over foreign vessels in internal waters? How is it possible to reconcile the need to provide refuge for ships in distress and the protection of the offshore environment of the coastal State? What is the right of innocent passage? Do foreign warships enjoy the right of innocent passage through the territorial sea? What is the legal regime of international straits? What is the legal regime of archipelagic waters? What are the differences between the right of innocent passage, the right of transit passage and the right of archipelagic sea lane passage? Introduction This chapter will seek to examine rules of international law governing marine spaces under territorial sovereignty. In this regard, particular attention must be devoted to two issues with regard to the reconciliation between the territorial sovereignty of the coastal State and the freedom of navigation.

Introduction As part of the overall process of implementing confidence-building measures (CBMs) in the Asia-Pacific region much attention has been devoted to maritime security and the need to expand and strengthen inter-state co-operation in that domain. This focus on maritime security recognizes of and other as fundamental principles but has failed to properly define the terms and identify their possible contribution as CBMs in their own right. This article aims to bring these issues to the centre of attention, by investigating the rationale for the formulation of a Declaration on in the sea-lanes of the Asia-Pacific(1) as a CBM. The article is divided into three sections. The first section is devoted to examining the relevant navigational regimes according to the 1982 United Nations Convention on the Law of the (UNCLOS) and how the provisions of UNCLOS might be interpreted in order to establish a definition of navigational rights which can be applied in practice. In the second section, the degree of international acceptance of navigational rights, as provided for under UNCLOS, is outlined, with a focus on the countries within the Asia-Pacific and the multilateral fora in the region, such as the Council for Security Cooperation in the Asia-Pacific (CSCAP) and the Workshops on Managing Potential Conflicts in the South China Sea. The third section discusses the advantages and problems associated with a possible declaration of in the region and its contribution as a CBM within the region's overall security processes. Much of the discussion centres on the attitude towards navigational and maritime issues as expressed in declarations by the Association of Southeast Asian Nations (ASEAN), CSCAP and the Workshops on Managing Potential Conflicts in the South China Sea. Defining of Navigation and Navigational Rights: Provisions of UNCLOS As a starting point in the search for a definition of of the text of UNCLOS will be used, originating from Article 2 of the 1958 Geneva convention, applying to the high seas. UNCLOS confirms the right of freedom of navigation on the high seas in Part VII, Section 1, Article 87.(2) Freedom of navigation is also referred to in other parts of UNCLOS but is not explicitly defined, although by implication UNCLOS adopts the definition in the 1958 Geneva convention. UNCLOS also contains sections dealing with navigation through different kinds of water areas. It is necessary to examine the three regime types of innocent passage, transit and archipelagic sea-lanes that may apply to sea-lanes in the Asia-Pacific, and to identify the navigational rights associated with each of these. Part II, Section 3 of UNCLOS is devoted to Innocent Passage in the Territorial Sea and in Article 17 it is stated that Subject to the Convention, ships of all states ... enjoy the right of innocent through the territorial sea.(3) In Article 18, the term passage is defined as the means of navigation through the territorial sea for either of two purposes: first, traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters, and second, proceeding to or from internal waters or calling at such roadstead or port facility. Furthermore, the has to be continuous and expeditious.(4) Article 19 states that to qualify as innocent, the should not be prejudicial to the peace, good order or security of the coastal state: in practice this applies to any activity not having a direct bearing on passage, among them military actions, fishing and environmental pollution.(5) Article 21 spells out the right of coastal states to adopt laws and regulations relating to innocent through the territorial sea.(6) However, According to Article 24, the coastal state shall not hamper innocent through the territorial seas and shall not impose requirements on foreign ships which in practice would deny or impair the right of innocent passage, or discriminate against ships from any particular state. …

In the past, the sea has been a space where routes are designed fornavigation like roads on land, or where freedom of navigation is guaranteed.However, as the jurisdiction of coastal states has been expanded for variousreasons such as resource development and security, there was growing concernthat the high seas, the waters where the freedom of passage of ships isguaranteed, will gradually decrease, which may limit the passage of ships. As aresult, a system such as the right of innocent passage was prepared to ensurefreedom of navigation even in the waters within the sovereignty of the coastalstate. The right of innocent passage literally means that when a vessel isharmless to the coastal state when it passes through the waters under thejurisdiction of the coastal state, it guarantees the passage of the vessel.However, the traffic-prohibited sea area for oil tankers established along thecoast of Korea prohibits passage regardless of whether or not oil tankerspassing through the sea area are harmless, which may violate the UNConvention on the Law of the Sea. Therefore, it is considered that it isnecessary to change the area to a cautionary zone for oil tankers to ensurecareful navigation of oil tankers and active management of coastal states rather than unilaterally prohibiting the passage of oil tankers. By doing so, it will bepossible to achieve the legislative purpose of the traffic-prohibited sea area foroil tankers and to solve the problem of conflicts with international law.

Legal status of the adjacent coastal waters and the regime of passage (evolutionary perspective) the right of innocent passage as classical exception to coastal state sovereignty in coastal waters the scope of the right of innocent passage in certain coastal zones ocean vessels and their exercise of the right of innocent passage - private vessels public vessels and their exercise of the right of innocent passage rights and obligations of the coastal state and the foreign vessel/flag state connected with the exercise of the right of innocent passage in coastal waters disputes settlement procedure involving the exercise of the right of innocent passage conclusion - general evaluation of the right of innocent passage in coastal waters in the light of contemporary law and practice.

Navigation of ships carrying radioactive materials is directly envisaged by the United Nations Convention on the Law of the Sea (UNCLOS) in only two provisions. The first is Article 22 and second is Article 23. These provisions confirm that ships carrying radioactive materials enjoy the right of innocent passage, with a possible requirement of using sea lanes and the need to carry documents prescribed by international agreements. according to UNCLOS, a ship carrying radioactive materials enjoys the right of innocent passage in the territorial sea and freedom of navigation in the exclusive economic zone (EEZ). In light of the difference between the two zones that makes the position of the coastal State in the territorial sea stronger than it is in the EEZ, the restrictions may be more severe, and in any case no less severe, for passage through the territorial sea than for navigation in the EEZ. Keywords: exclusive economic zone (EEZ); international agreements; Navigation of ships; radioactive materials; UNCLOS

Some recent affairs concerning the detention of a British vessel and the seizure of an Iranian tanker have put the spotlight on a further juridical aspect within the tangled question of implementation of sanctions on trade towards Iran to lead to the suspension of its uranium enrichment program. In particular, the growing tension between Iran and some Western Countries have caused problems of compliance with a branch of international law, surely away from that of nuclear non-proliferation, namely the law of the sea. The law of the sea is in the spotlight not only with respect to the so-called extraterritorial imposition of sanctions on trade and oil but also with respect to some reactions (a sort of countermeasures according to some political perspectives) by Iran amounting to interference with merchant shipping in the Strait of Hormuz. With regard to the first point, it concerns the freedom of navigation on the high seas as well as the connected principle of the exclusive jurisdiction of the flag State. This essentially means to what extent the fight against nuclear proliferation and the need of implementing the respect for sanctions against Iran could impinge on the freedom of navigation on the high seas. Could this freedom be limited by enforcement activities aimed at fighting nuclear proliferation? Could these enforcement activities be carried on by a State different from the flag State without evidently the latter’s authorisation? The same problem arises mutatis mutandis when a vessel suspected of violating sanctions against Iran is transiting in a foreign port or is navigating in the territorial sea of a third State. With regard to the second point, the principles of the right of innocent passage and of the right of transit passage through international straits, as is the case with the Strait of Hormuz, are admitted by the UN Convention on the Law of the Sea (UNCLOS). Consequently, the closure of the Strait of Hormuz seems to be contrary to UNCLOS. However, since Iran has signed but never ratified UNCLOS the question of its customary nature necessarily arises. In turn, the military patrol by some Western States in the Strait of Hormuz in order to guarantee the navigation raises doubts as well on their conformity with the law of the sea.KeywordsCountermeasuresFreedom of NavigationIran AccordIran SanctionsLaw of the SeaStrait of HormuzTransit Passage

A CONSTRUCTION OF SOUTHERN MINDS, the Northwest Passage has long been the site of exploration in reality and in imagination. This article is an exercise in the imagination. For gritty detail on navigation in polar waters you will have to look elsewhere. What I am about to consider is not the Northwest Passage and what is being done there, but rather its changing context and the elements of an alternative construction that might now be put on it. For some decades the waters of the Canadian Arctic archipelago have been construed largely in terms of conflict between a coastal state, Canada, which would like to exercise exclusive jurisdiction, and major maritime powers, principally the United States, whose chief aim is to maintain freedom of navigation. This frame of reference is proving to be not that well suited to the requirements of emergent collective action in the circumpolar north. The received thinking is also being overtaken by far broader developments, the combined effect of which is very difficult to discern. In an era of global change the Northwest Passage is not exempt: it and most everything connected with it is in transit from a familiar past to an indeterminate future. In hopes of contributing to the search for better ways of doing things together in the Arctic, I will briefly explore the Northwest Passage for an alternative construction more in keeping with the times. But first, the received thinking.STATE-CENTRISMIn the standard view, the Northwest Passage is an arena for interstate conflict and accommodation in the exercise of rights and obligations under international law. Nation-states are the be-all and end-all in this perspective. They ultimately make the law and have a near monopoly of representation before it. Civil society, those most immediately affected by the evolution and application of the law in specific circumstances, and individuals all lack presence and personality.Where the Passage is concerned, states are divided over the interpretation of the law. Canada's assertion is one of exclusive jurisdiction or sovereignty over the waters of the Canadian archipelago, a claim largely founded on the right to draw straight baselines around the outer perimeter of the archipelago to delimit the territorial sea, behind which internal waters lie and no right of innocent passage exists. In announcing its intention to establish straight baselines in September 1985, Canada, it should be noted, lifted its prior bar on the jurisdiction of the International Court of Justice (ICJ) over its sovereignty claim. The United States, for its part, claims that the varied waterways of the Canadian archipelago, which together make up the Northwest Passage, constitute an international strait in which rights of transit apply, as do certain flag-state obligations under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) for state surface vessels, submarines, and aircraft, together with commercial vessels.The Canadian state believes that drawing straight baselines around the archipelago changes nothing: the waterways in question have always been internal to Canada; they have been used by Inuit, now of Canada, since time immemorial; and they have been sailed only infrequently by the surface vessels of foreign states - most notably in 1969 and 1985 by the United States icebreakers Northwind and Polar Sea - without a prior request for Canadian permission. The United States, on the other hand, is convinced that Canada's action signals a change: a unilateral act to close an international strait would provide a precedent for archipelagic and coastal states to follow suit, thereby constraining worldwide freedom of navigation and the mobility of United States naval forces in particular.Eleven years ago, in January 1988, Canada and the United States reached an agreement on icebreaker navigation, the provisions of which applied to the waters of the Canadian Arctic archipelago.(f.1) The Arctic Cooperation Agreement ensured that 'all navigation by U. …

The International Maritime Organization (IMO) has the authority to impose conditions on ships exercising the right of transit passage through straits used for international navigation or the right of archipelagic sea lanes passage through archipelagic States. This chapter discusses whether measures by coastal States or international organizations taken together are likely to spoil the balance between freedom of navigation and environmental and security interests of coastal States as well as the international community. The United Nations Convention on the Law of the Sea (UNCLOS) makes ample reference to the freedom of navigation, for example in Article 36 (freedom of navigation in straits used for international navigation), Article 58 (freedom of navigation in the Exclusive Economic Zone), Article 78 and Article 87 (high seas). The freedoms in these Articles mean the same - freedom of movement of ships. Keywords: archipelagic sea lanes; coastal States; exclusive economic zone; freedom of navigation; international maritime organization (IMO); international straits; UNCLOS

The Arctic Regions have been a fascinating subject of study for a long time, mainly because of man’s strong desire to conquer the unknown. The military interest in those regions did not develop until recent years. With the straining of relations between the Soviet Union and the United States after World War II, the strategic significance of the Arctic soon became very real. This significance was appreciably diminished with the invention of intercontinental ballistic missiles but the more recent development of the nuclear missile-launching submarine has given the Arctic waters a new military importance. Of course, nuclear submarines could also be of considerable commercial interest. By borrowing the Arctic Ocean, merchant submarines could drastically shorten some of the present maritime trading routes. The exploitation of natural resources in the Arctic regions is already in process of giving new commercial meaning to the old Northwest and Northeast Passages. In the circumstances, an inquiry into the legal regime of the Arctic waters is timely. Two basic principles of the law of the sea are involved: the right of innocent passage, and the freedom of the seas. The present study will concentrate on the right of innocent passage. An investigation will be made into the legal status of the Arctic waters constituting what is commonly known as the Northwest Passage, on the North American side of the Pole, and the Northeast Passage or Northern Sea Route on the Soviet side. The basic question is whether or not the right of free and innocent passage in favour of foreign ships applies to those waters.

The legal status of the Aland Islands is a special case in international law. Aland is an area that is demilitarised, is neutralised and enjoys wide autonomy under Finnish sovereign rule. The demilitarisation regime is regulated directly by a multilevel legal framework, and Finland’s sovereign rights as a coastal State are significantly restricted by the 1921 Aland Convention. The UN Convention on the Law of the Sea sets out a comprehensive legal framework for marine activities. The Convention contains specific articles on the right of innocent passage. The Proliferation Security Initiative launched by the United States in 2004 has raised the questions of its application on the territorial sea against a foreign ship exercising the right of innocent passage. This Chapter attempts to examine the relationship of the PSI to the right of innocent passage and to the 1921 Aland Convention.

This chapter discusses navigational rights and freedom of navigation under the 1982 UN Nations Convention on the Law of the Sea (LOSC). These include the right of innocent passage through; navigational rights through international straits; navigational rights in the archipelagic waters; navigational rights in the exclusive economic zone; and navigational rights on the high seas.

The presence of the USCENTCOM , AFRICOM and 34 foreign countries in the vital Yemeni, Arab, and national maritime spheres contributed to a flagrant violation of maritime laws and international political relations. Likewise, the presence and activities of the strategic and tactical military naval units of the aircraft carrier, submarines, and American and British nuclear naval destroyers in the Red Sea. The Gulf of Aden is a breach and violation of international law and agreements regulating freedom of navigation and a blatant assault on Yemeni sovereignty in its vital maritime sphere, as it is located in exclusive Yemeni economic waters, in addition to its nuclear effects in destroying the marine environment and human security. It constitutes a source of danger to food and maritime security, stability, and international peace. The study aims to clarify the influence of Western geopolitical thought and the behavior of American foreign policy in international relations and maritime laws, which is witnessing a major decline and failure in its global policy because it used the policy of American military force to achieve its own political goals and imposed the methodology of Western liberal maritime thought to control and limit the rights of the Yemeni, Arab, and Islamic coastal states. Which contradicts customs, laws, and agreements and affects historical rights and the Yemeni, Arab, and regional maritime domain. The study is expected to confirm the modern Yemeni, Arab, and Islamic hypothesis that the high seas and international maritime waters are within a distance of 200 nautical miles from the baseline and to affirm the right of Yemen and the Arab nation to be protected. The vital area of the United Arab Emirates and the Islamic and regional countries extends from the Atlantic Ocean to the Mediterranean, the Arabian Gulf, the eastern and western Indian Ocean to the Antarctic Ocean, and there is a call for holding maritime conferences in order to develop traditional Western maritime legal theories and concepts that seek to limit the rights of coastal states, establish perceptions, and reach an update to the laws regulating freedom of maritime navigation in accordance with the views of the peoples of the world and in response to global changes in multipolarity.

Efforts to expand coastal State jurisdiction to include security jurisdiction in the EEZ were soundly rejected by a majority of the nations that participated in the UNCLOS negotiations The delegates present achieved consensus on provisions that accommodate the resource interests of the coastal State in the EEZ without diminishing user State interests in freedom of navigation and other internationally lawful uses of the sea in the zone. Continued efforts by some States to reinterpret the Convention to unilaterally and unlawfully advance their national interests in the EEZ impinge on traditional uses of the oceans by all States and are inconsistent with international law, long-standing state practice and the intent and negotiating history of UNCLOS. If these efforts succeed, the Convention will unravel over time and the international community will once again be plagued by a new wave of excessive maritime claims. Coastal State competency in the EEZ is strictly limited to resource rights, jurisdiction over resource-related offshore installations and structures, marine scientific research, and protection of the marine environment. Coastal States do not retain security jurisdiction in the EEZ, and may not regulate lawful military activities in the EEZ that are consistent with the UN Charter, UNCLOS, the Chicago Convention, and other relevant international law instruments. The creation of the EEZ was a package deal—coastal States were granted exclusive resource rights and user States retained the high seas freedoms of navigation and overflight, and other lawful uses of the seas associated with those freedoms, which have always applied beyond the territorial sea.

This study deals with the question whether there is, to-day, an international right of innocent passage of warships through territorial waters in time of peace. With this in view it will first be examined which links there are with other fields of international law; then will follow a more comprehensive review of the fundamentals of the problem.

Maritime law (also known as admiralty law or law of the sea) is a fundamental part of international law founded on the same rules and norms that govern international law, generally. In fact, the earliest law of the sea, the freedom-of-the-seas doctrine (that the sea should be free and open to all parties except for a narrow belt surrounding a nation's coastline), dates back to the origins of international law itself in the writings of Hugo Grotius in 1609. Over the years, customary law developed with some unique twists and turns, culminating in what can be said to be a "constitution-like" settlement in the form of the UN Convention on Law of the Sea passed in 1982 by 159 nations and implemented in 1994. While the LOSC (law of the Sea convention) codifies great many things, there are other general principles, customary rules, and normal exceptions which merit discussion, along with contemporary issues like piracy and terrorism at sea The evolution of the law of the sea has been shaped largely by two notions, namely, Freedom of navigation on the one hand, and restricted access on the other hand. The interaction between these two opposing notions has led to the acceptance of two compromise concepts, namely, the territorial sea and the right of innocent passage. These concepts have now been codified in the 1982 United Nations Convention on the Law of the Sea. This paper examines the right of innocent passage in the territorial sea under the Law of the Sea Convention and the various aspects of the innocent passage; it also brings to light certain aspects that need to be addressed under the said concept.