Introduction
One
of the concepts that underpin the UNCLOS is that the maritime area beyond the
national jurisdiction is a "common heritage of mankind." Maltese
Ambassador Avid Pardo first articulated this concept in 1967. Malta is a small
country in the Mediterranean, and the country felt that the sea-bed and ocean
floor under the high seas should be considered "the common heritage of
mankind," meaning that no country could own or utilize for its benefit the
maritime area beyond its national jurisdiction. By declaring this concept,
Malta has emphasized that small countries without great technical expertise for
exploration will derive benefits from the exploration and utilization of the
sea-bed of international areas.The concept caught the imagination of most member countries of the UN. And when the UN Conference on the Law of the Sea began, almost all delegates of developing countries incorporated this concept in their policy statements.
Bangladesh faces the Bay of
Bengal, and the importance of its access to the open ocean can be appreciated
if one considers the handicaps of landlocked countries, such as Nepal and
Afghanistan. Accordingly, from the early years of its birth, it took great
initiative and interest to participate in the UN Sea Law Conference.[1]
Bangladesh has unfortunately failed to stop India and Myanmar encroaching upon
its maritime territory. The seismic survey of Bangladesh’s territorial sea line
has now become crucial as a UN set deadline for lodging maritime claims is to expire
in next one year exposing Bangladesh to risks of losing a vast territory in the
Bay of Bengal. Bangladesh signed by the UN
Convention on the Law of the Sea called in 2001 and under the law we are
obligated to lodge our claim on the maritime boundary by 2011 .But Bangladesh
could not make any major headway in lodging its claims through seismic and
other studies despite the fact the country could lose an area in the sea which
is larger than the mainland Bangladesh. Experts said, Bangladesh needs to start
the seismic survey immediately to claim its legitimate sea territory. Under the
convention Bangladesh was required to submit necessary documents to the UN to
validate its claim of territorial water, Exclusive Economic Zone up to 200
nautical miles and continental shelf up to 350 nm from the baseline. All together, the sea area is approximately 1.1 percent more than that of the mainland and UNCLOS III is the latest instrument that works as the basis of establishing the claim. Bangladesh crucially need to establish the claim in the sea for the huge resources the gas, oil, fish and all other aquatic resources. It is also important from national security point of view. The neighboring India and Myanmar already proceeded a long way in crisscrossing Bangladesh’s legitimate territorial shoreline. While Bangladesh is lagging behind in preparing the required document to claim the maritime boundary near both the adjacent neighbors, India and Myanmar, floated tender for seismic survey. According to reports, India tended to encroach an area of 19,000 square kilometers and Myanmar 18,000 square kilometers of the territorial sea line of Bangladesh in the Bay of Bengal. But, it is the slow pace lack of coordination and urgency among concerned agencies and perception on the magnitude of the loss that could lead neighbors to encroach Bangladesh’s territorial sea. Hence Bangladesh should pursue vigorously with objectivity of protecting national sovereignty over the maritime boundary.[2]
An initiative has been taken under this
dissertation to discuss about the law of the sea and its practical importance
for Bangladesh.
Importance of Sea: Common
Heritage of Mankind
Here it is need to clarity; the doctrine of “territorial sea” has
traditionally been regarded as founded upon the principle laid down by patch
jurist Bynkershoek in his the
dominion Maries dissertation in 1702, that ‘a states sovereignty extended as for out to sea as a common shot could
reach’[3].
The sea historically been performed two important functions: first, as a medium
of communication and secondly as a vast reservoir of resources, both living and
non-living. Both of those functions have stimulated the development of to gal
rotes. The seas were one time thought capable of subjection to national
sovereignties. The Portuguese in particular in the seventeenth century
proclaimed huge tracts of high seas as part of their territorial domain but
these claims stimulated a response by Grotius who elaborated the occurs as re
communis were to be accessible to all nations But incapable of appropriation.
This view prevailed, partly because it accorded with interests of the north
European states, which demanded freedom of the seas for the purposes of
exploration and expanding commercial intercourse with East.[4]
It is also true that, now the purposes of sea is not limited as a medium
of communication, the commercial and strategic significance of the sea in the
world merits adequate elaboration. The sea is a major source of food and the
sea lines are the life times of all the economies which are heavily dependent
on unimpeded access to raw materials, markets and investment opportunities
throughout the world. Many international straits continue to be regarded as
strategically vital by the global powers because of the link they provide
between different regional or sub-regional seas in the context of naval
development. The medium of trade is by shipping which carries over 98 percent
of all goods traded. It was generally acknowledged that, the treats to the
security of the sea lanes never erased to exist. Moreover, naval developments
have also led to the rather paradoxical situation where more navies of regional
powers have begun to exert themselves in the regional waters apparently to fill
the power vacuum. Earlier, attempts at extension of coastal state powers beyond
a narrow territorial sea belt were minor and posed no serious threat to the
sanctity of the high seas regime. The majority of states realized that they
were benefiting from the free movement of commerce allowed by the freedom of
the seas. The underlying cause has been the increased demand for marine
resources.[5]
Acquisitive impulses to exploit fishery resources, offshore petroleum and
natural gas, and later mineral deposits on the deep seabed, have been given
impetus by technological developments in ocean resource exploitation coastal
states have also responded to increased dangers to the marine environment from
human activities on land or at sea by enclosing ocean space. Dominant naval
power took a big step in the direction of coastal state expansion when it
claimed the mineral resources of the continental in fisheries conservation
beyond its territorial sea other states moved more firmly in the same direction
claiming ever-wider zones that varied in their nature, sometimes claiming
exclusive fishing rights, sometimes larger zones of exclusive economic rights
or even 200-mile territorial seas. Even the maritime powers took part in this
expansionist trend, limiting some freedoms off their coasts as it suited their
interests. It then became extremely difficult for the maritime states to
explain why any other coastal state could not restrict high seas freedoms that
were of interest to the maritime powers. Thus the necessity to develop a
uniform, coherent maritime regime was more felt mainly because practice on the
important aspect of ocean uses substantially diverged among the littoral
states. In the past, the principal objective of all states and maritime powers
with interests in the ocean was to endeavor to build a state and secure
maritime regime. Such maritime regime was a fundamental prerequisite not only
for enhancing the security of the sea lanes, but also further maritime
cooperation between regional states. Thus, ocean regime can be defined as a set
of norms and patterns of behavior that help to regulate maritime relations with
in a system of states. The global ocean regime, are therefore, sets of
international law for the jurisdictions and uses of the ocean, received its
expression in the United Nations convention on the Law of Sea.[6]
Here for exercise rights over these
mentioned interest or Power Ocean we need to create scopes through which we can
exercise. These powers over the belt of the sea.
Different sectors
of sea and relevant laws of those sectors:
International law particularly the law
of sea is derived increasingly from express international agreements, often
termed “treaties”, “conventions’, or “protocols”- agreements which are only
binding on states which have accepted them either by signing or ratifying them.
These all rotes or regulations have been made to ensure the security of
interest or benefit of sea, to create a binding force for which abuse can not
be made over that interest. The majority of such agreements are bilateral,
although there is a growing number of a multilateral agreement in many fields
of international law. Customary law is the body of general rotes which have
gradually crystallized by regular state practices. Many of the traditional
areas of the law of sea-such as the law in relation to the rights of a coastal
state over its maritime belt are customary origin. Much of the law in relation
to self-defense also has its basis in state practice of this kind. However
there is no compulsory machinery for the enforcement of international law,
other than insofar as the United Nations charter confers witan powers on the
Security Council for the maintains or restoration of peace in matters of
aggression or breaches of or threats to, international peace and security.[7]
The present article aim to provide an overview of the law of the sea,
including definitions and descriptions of the jurisdiction and sovereignty exercised
by nations over various parts of the worlds oceans. The international legal
status, self defense and navigational rights of worships and military aircraft
are also covered. The law of the sea is perhaps the classic example of a regime
once almost entirely based on customary law, as evidenced by state practice
over several centuries. Naval control of the sea was a dominant feature of medieval international relations. Sovereignty was expressed in a Variety of
ways; form the proclamation of zones of neutrality to the assertion of the
right of exclusive fishing on the part of a particular state.
Now, if formally speaking, the law of
sea is that law by which states, coastal and land locked and international
organizations regulate their relation in respect of those areas subject to
coastal state jurisdiction and of sea and sea-bed beyond national jurisdiction.
The rotes governing the sea are drawn from both custom and treaty.[8]
The law of sea was not uniform. The
different states have different view, opinions or matters and issues. But more
or less, the law was stetted after the 1958. Geneva conventions on
a)
The territorial sea and contiguous zone.
b)
The continental shelf.
c)
The High Seas and
d)
The fishing and conservation of Living Resources of the
High Seas.
All these conventions are enforce,
although the first three are of great political importance. Consequently the
relations of states which are parties to these conventions are governed by
their terms.
As interpreted in the light of subsequent developments. The need to
preserve the seas as the common heritage of all man kind and the danger of a
“Scramble for the Seas” precipitated the calling of the third United Nations
conference on the law of the sea.[9]
The convention of 1982 was adopted and it was treated as complete package with
limited reservation. The convention was subject of consideration opposition
primarily from western nations also were concerned about the provisions
regarding the exploitation of the deep sea bed.[10]
In this case it can not be said, the 1958 convention of Law of sea was lost its
value, because most of the countries was not as reed about 1982 convention and
they did not signed there but they signed 1958 convention. That’s why, they
were followed or still following this 1958 convention. Many of the provisions
in the 1982 convention repeat prescripts mortised in the earlier instrument,
and have since because customary rotes, but many new rotes were proposed. All
states are prima-facie bound by the accepted customary rotes, while only the
parties to the five treaties involved will be bound by the new rotes contained
there in, and one must envisage some states not adhering to the 1982
conventions. The 1958 convention rotes will continue to be of importance.
During the twelve year period between the signing of the convention and its
coming into force, the influence of its provisions was clear in the process of
law creation by state practice.[11]
UNCLOS III and Different
Division of Sea
According to the
UNCLOS III of 1982 sea is divided into following sectors to define the definite
areas of sea for each state.
These are:
- Base line
- Internal water
- Territorial Sea
- Contiguous zone
- Exclusive economic zone
- High sea
- Continental shelf.[12]
Now these
sectors and the law covered by them will be defined as follows:
3.1 Base line
The width of the
territorial sea is defined from the low water mark around the coasts of the
state. This is the traditional principle under customary international law and
was reiterated in article 3 of the Geneva Convention on the territorial sea and
the contiguous zone in 1958 and article 5 of the 1982 Convention, and the low
water line along the coast is defined, as marked on large scale charts
officially recognized by the coastal state.
In majority of cases, it will not be very difficult to locate the low water
line which is to act as the base line for measuring the width of the
territorial sea. Sometimes however, the geography of the states coasts will be
such as to cause certain problems, for instance, where the coastline is deeply
indented or there are numerous islands running parallel to the coasts, or where
exist boys cutting into the coastlines. Special rotes have evolved to deal with
this issue, which is of importance to coastal states, particularly where
foreign vessels regularly fish close to the limits of the territorial sea. A
more national methods of drawing base lines might have the effect of enclosing
larger areas of the sea with in the states internal waters, and thus extend the
boundaries of the territorial sea further than the traditional method might
envisage.[13]
This point was raised in the Anglo-Norwegian Fisheries case[14] before the International court of
justice. The case concerned a Norwegian decree delimiting its territorial sea
along some 1000 miles of its coastline. However, instead of measuring the
territorial sea form the low water line the Norwegians constructed a series of
straight base lines linking the outer-most parts of the land running along the
fringe of islands and rocks which parallels the Norwegian coastline. This had
the effect of enclosing with in its territorial limits parts of what would
normally have been the high seas if the traditional method had been utilized.
As a result certain disputes involving British fishing boasts arose, and the
United Kingdom challenged the regality of the Norwegian method of baselines
under the international law. The court held that it was the outer line of the
Skjaergoard that was relevant in establishing the baselines, and not the
low-water line of the mainland. This was dictated by geographic realities.
The court noted that the normal method of drawing baselines that are
parallel to the coast was not applicable in this case because it would
necessitate complex geometrical construction in the few of extreme indentations
of the coastline and the existence of the series of islands fringing the
coasts. These principles emerging from the fisheries case core accepted by
states as part of international law with in comparatively short period.
To definite the baseline, Bangladesh also has its geographical area like
other changed for sea tide. But the particular baseline of Bangladesh is drawn
on 10Fm or 60Ft of water probably considering the peculiar deltaic and deeply
intended coastline of Bangladesh.[15]
3.2 Internal Water
As far as the
general provisions noted above regarding the measurement of the territorial sea
apply. Inlands are defined in the 1958 convention on the territorial sea as
consisting of a naturally formed area of land, surrounded by coater, which is
above coater at high tide, and they can have maritime belt. Where only low tide
elevations are involved, that is areas of land visible at low tide but
submerged at high tide, they can not have a territorial sea of their own. But
they may b used as baselines if with in the territorial sea of a coastal state
and they may be utilized as a point on a straight baseline if installation
permanently above sea level (for example lighthouse) have been constructed upon
them.[16]
In this internal waters the coastal state has its absolute or complete
sovereignty but on the basis of 1982 convention ships of all States shall enjoy
the rights of innocent passage through these waters. In this internal water the
coastal state has its universal sovereignty, not only this coastal state also
contains both civil and criminal jurisdiction. But generally the coastal state
does not exercise its civil power unless the captain of flag ship request to
apply, incase of avoid unpleasant incidents. In criminal jurisdiction, if any
offence arises in the area of coastal state which disturbs the peace, security
or happiness of that state, in this case, the coastal state may apply its
criminal jurisdiction. In this matter, an international case is, Wildenbus
case.[17]
In Rex v. Anderson case, the question of criminal jurisdiction
also arised. A person who is a U.S.A. citizen named Anderson, killed an other
foreign person in a ship. When the offence occurred that ship was into,
internal water of France. When the case feted into British court, Anderson put
an objection, that Britain has not any jurisdiction to try the case. But
Appellate court said on judgment that, all these 3 countries has the
jurisdiction to try the case, here Britain also can do the same, to save their
ship. (As offence occurred on their ship).
In State v. Yannopulous[18] case the same question also aroused,
whether coastal state has the criminal jurisdiction to try the case or not.
Yannopulous an Greece citizen was acting as captain of flag state ship of
srypras. When the ship stopped into Italian port, Italian police got 5kig drugs
from that ship, which was serious offence according to the law of Italy. When
case file into Italy court, after examine the case, the court declared to be
ret eased Yannopulous. Because it not proved, that drugs brought into Italy to
destroy peace and harmony of Italian or the intention of Yannopulous was bad.
So, that be can not be tried according to the law of Italy.[19]
3.3 Territorial Sea
Article 1 and 2 of the convention on the territorial sea 1958 provide
that the coastal states sovereignty extends over its territorial sea and to the
airspace and seabed and subsoil there of, subject to the provisions of the
convention and of international law. The territorial sea forms an undeniable
part of the land territory to which it is bound, so that a union of land will
automatically include any band of territorial waters. The coastal state may, if
it so desires, exclude foreign national and vessels from fishing within its
territorial sea and form coastal trading and reserve these activities for its
own citizens.
Similarly the coastal state has extensive powers of control relating to
amongst others, security and custom matters. It should be noted, however, that
how far a state chooses to exercise the jurisdiction and sovereignty to which
it may lay claim under the principles of international law will depend upon the
terms of its own municipal legislation, and some states will not wish to take
advantage of the full extent of the powers permitted them with in the
international legal system.[20]
3.3.The
Right Of Innocent Passage:
The right of
foreign merchant ships (as distinct from warships) to pass unhindered through
the territorial sea of a coast has long been an accepted principle in customary
international law, the sovereignty of coast state not with standing. However,
the precise extend of the doctrine is blurred and open to contrary.
Interpretation, particularly with respect to the requirement that the passage
must be ‘innocent’. The doctrine was elaborated in article of the convention on
the territorial sea 1958, which emphasized that the coastal state must not
hamper innocent passage and must publicize any dangers to navigation in the
territorial sea of which it is award.[21]
Passage ceases to be innocent under article 14(4) of the 1958 convention
where it is ‘prejudicial to the peace, good order or security of the coastal
state and in the case of foreign fishing vessels when they do not observe such
laws and regulations as the coastal state may make and publish to prevent these
ships from fishing in the territorial sea. In addition, submarines must navigate
on the surface and they need to show the flag. Regarding innocent passage it is
the responsibility of the coastal state to make the way of passage ‘innocent’.
About this, one of the most important case, ‘Corfu channel case,[22]
where the passage is not innocent, the coastal state may take steps to prevent
it in its territorial sea and where ships are proceeding to internal waters; it
may act to fore stall any branch of the conditions to which admission of such
ships to internal water is subject.
Article 19(2) of the 1982 convention, has developed the notion of
innocent passage contained in article 14(4) of the 1958 convention by provision
of examples of prejudicial passage such as the threat or use of force; weapons,
practice; spying; breach of custom; fiscal; immigration or sanitary
regulations; willful or serious pollution etc. In addition ‘any activity not
having direct bearing on passage’. By virtue of article 24 of 1982 convention,
coastal states must not hamper the innocent passage of foreign ships, either by
imposing requirements upon them which would have the practical effect of
denying or impairing the right or by discrimination.
3.4 Contiguous Zone
Contiguous
zone is that part of the sea which is beyond and adjacent to the territorial
sea of the coastal state. Under article 33 of 1982 Convention, however a
coastal state may claim a contiguous zone (for the same purpose as the 1958
provisions) up to 24 nautical miles form the baselines. A coastal state, under
Geneva Convention, may claim a zone of the territorial sea base lines,
contiguous to its territorial sea. A contiguous zone need not be claimed, as in
the case of the United Kingdom, but if it is, it must be done so specifically.
Although the status of the contiguous zone remains that of high seas, but the
coastal state does have some exclusive sovereign rights over contiguous zone.
The idea of a contiguous zone (i.e. zone bordering upon
the territorial sea) was virtually formulated as an authoritative and
consistent doctrine in the 1930s by the French writer Gidel, and it appeared in
the convention on the territorial sea. Article 24 declared that:
In a zone of the high seas contiguous to its territorial
sea, the coastal state may exercise the control necessary to:
a)
Prevent infringement of its custom, fiscal, immigration
or sanitary regulations with in its territory or territorial sea.
b)
Punish infringement of above regulations committed with
in its territory or territorial sea.[23]
Thus such ambiguous zone were clearly differentiated from claims to full
sovereignty as parts of the territorial sea, by being referred to as part of
the high seas over which the coastal state may exercise particular rights.
Unlike the territorial sea, which is automatically attached to the land
territory of the state, contiguous zones have to be specifically claimed. While
sanitary and immigration laws are relatively recent additions to the rights
enforceable over zones of the rights enforceable over zones of the high seas
and may be regarded as steaming by analogy form customs regulations, in
practice they are really only justifiable since the 1958 convention. On the
other hand, customs zone have a long history and are recognized in customary
international law as well. Many states, including the UK and The USA, have
enacted regulation to enforce customs regulations over may many years, outside
their territorial waters and with in certain areas, in order to suppress
smuggling which appeared to thrive when faced only with territorial limits of 3
or 4 miles. Contiguous zone however, were limited to a maximum of 12 miles from
the baselines from which the territorial sea is measured. So, if the coastal
state already claimed a territorial sea is measured. So, if the coastal state
already claimed a territorial sea of 12 miles. The question of contiguous zones
would not arise.
In this case, the coastal state has its full jurisdiction over its
contiguous zone, whether its civil or criminal. Regarding this one of the most
important case is Re Martinez Case[24]. In
Italian Law of sea, under section 2 of Maritime code, form baseline to 6
nautical miles is custom zone, form this to other 6 nautical miles is vigilance
zone. The person named, Martinez ‘form baseline to 9 nautical miles’ in this
areas involved in doing the offence of smuggling. When Italian police force
trying to arrest him and started fairing be ran away and escaped into 54
nautical miles deep high seas. But at last he caught by Italian police force
and when case feted he claimed the court has not any jurisdiction to try the
case, as he did smuggling beyond contiguous zone of Italy and he was arrested
illegally form high seas. But at last court declared that, the Italian court
has complete or absolute jurisdiction to try the case, and his reasons proved
as ground less.
3.5 Exclusive Economic Zone
This zone has
developed out of earlier, more tentative claims, particularly relating to
fishing zones and as a result of developments. In the negotiating processes
raiding to the 1982 convention. It makes a compromise between those states-seeking
a 200 mile territorial sea and those wishing a more restricted system of
coastal state power. One of the major reasons for the call for a 200 mile
exclusive economic zone has been the controversy over fishing zones. The 1958
Geneva Convention on the Territorial sea did not reach agreement on the
creation of fishing zones and article 24 of the convention does not give
exclusive fishing rights in the contiguous zone. However, increasing numbers of
states have claimed fishing zones of widely varying widths. The European
Fisheries convention, 1964, which was implemented in the UK by the Fishing
Limits Act, 1964, provided that the coastal state has the exclusive right to
fish and exclusive jurisdiction in matters of fisheries in a 6 mile belt form
the baseline of the territorial sea.[25]
Article 55 of the 1982 convention provides that the exclusive economic
zone in an area beyond and adjacent to the territorial sea, subject to the
specific legal regime established under the convention. Under article 56 the
coastal state in economic zone has inter alia:
a)
sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural resources, whether living or
non-living of the water 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 the water,
currents and winds;
b)
jurisdiction with regard to
1)
The architecture and the use of artificial islands,
installations and structures.
2)
Marine scientific research.
3)
The protection and preservation of the marine
environment.
Article 57 provides that the zone shall not extend beyond 200 nautical
miles from the baselines from which the breath of territorial sea is measured.
Article 58 lays down the rights and duties of other states in the
exclusive economic zone. These are basically the high seas freedom of
navigation, over flight and laying of submarine cables and pipelines.[26]
It is also provided, that in exercising their rights and performing their
duties, states should have due regard to the rights, duties and laws of the
coastal state. In cases of conflict over the attribution of rights and
jurisdiction in the zone the resolution is to be on the basis of equity and in
the light of all the relevant circumstances.[27]
Regarding this, one of the most important
case is Fisheries Jurisdiction case[28]
Iceland declared his exclusive economic zone about 50 nautical miles. Where
U.S.A. and Germany put objection because, they have their fisheries
jurisdiction into that areas. Because of their objection the case brought ICJ.
In this case, the court declared that, any
coastal states exclusive economic zone about fishing will not be more than 24
nautical miles. But here it is considerable that, 90% of economic zone of
Iceland is depend on fisheries. Therefore Iceland got preferential rights, and
judgment was in favour of Iceland.
3.6 High Sea
The freedom of
the high seas is that no state may acquire sovereignty over parts of it. The
area of high seas normally indicates the zone beyond exclusive economic zone
that means, area remains after 200 nautical miles. This is the general rule,
but it is subject to the operation of the doctrines of recognition,
acquiescence and prescription, where, by long usage accepted by other nations,
certain areas of the high seas bounding on the territorial waters of coastal
states may be rendered subject to that states sovereignty. This was emphasized
in the Anglo Norwegian Fisheries Case.[29]
The high seas were defined in Article 1 of the Geneva
convention on the high seas 1958 as all parts of the sea that were not included
in the territorial seas or in the internal waters of a state. The reflected
customary international law, although definition in article 86 of 1982
convention includes: “all parts of the sea that are not included in the
exclusive economic zone, in the territorial sea or in the internal water of a
state, or in the archipelagic coaters of an archipelagic state.
Article 87 of the 1982 convention (developing
article 2 of 1958 Geneva Convention of the high sea) provides that, the high
seas are open to all states and that the freedom of the high seas is exercised
under the conditional provisions laid down in the convention and by other alia
the freedom of navigation, over flight, the laying of submarine cables and
pipelines, the construction of artificial islands and other installations
permitted under international law, fishing and the conduct of scientific
research. Such freedoms are to be exercised with due regard for the interest of
other states in their exercise of the freedom of the high seas and also with
due regard for the rights under the convention regarding activities in the
International Seabed Area.
The foundation of maintenance of order on
the high seas has rested upon the concept of the nationality of the ship, and
the subsequent jurisdiction of the flag state over the ship. It is basically,
the flag state that will enforce the rules and regulations not only its own
municipal law but of international law as well. A ship without a flag will be
deprived many of its benefits or rights those available under the legal regime
of high seas. Each state is required to elaborate the conditions necessary for
the grant of its nationality to ships, for the registration ships in its
territory and for the rights to fly its flag. The nationality of the ship will
depend upon the flag it flies, but article 5 of the high seas convention also
stipulates that, there must be a “genuine link” between the state and the ship,
and ‘in particular the state must effectively exercise its jurisdiction and
control in administrative, technical and social matters over ship flying its
flag. This provisions was intended to check the use of flags of convenience
operated by states such as Liberia and panama which would grant their
nationality to ships requesting such because of law taxation and the lack of
application of most wage and social security agreements. This enabled the ships
to operate at very low costs indeed. The basic principle relating to
jurisdiction on the high seas is that the flag state alone may exercise such
rights over ship. This was elaborated in the Lotus case (PCIJ, 1927) where, it
is held that, “vessels on the high seas are subject to no authority except that
of the state whose flag fly.
3.7 Continental Shelf
Article 1 of
UNCLOS I on the continental shelf defined the shelf in terms of its
exploitability rather than relying upon the accepted geological definition.
Nothing that the expression referred to the seabed and subsoil of the submarine
areas adjacent to the coast but outside the territorial sea to a depth of 200
metres or ‘beyond that limit to where the depth of the superjacent waters
admits of the exploitation of the natural resources of the said areas.’
This provision caused problems, since developing technology rapidly
reached a position to extract resources to a much greater depth than 200
metres, and this means that, the outer limits of the shelf, subject to the
jurisdiction of the coastal state, were consequently very unclear. Article 1
was, however, regarded as reflecting customary law by the court in the North
Sea continental shelf case. It is also important to note that the basis of
title to continental shelf is now accepted as the geographical criterion, and
not reliance upon, for example: occupation of effective control.
The coastal state may exercise sovereign rights over the continental
shelf for the purpose of exploring it and exploiting its natural resources
under article 77 of the 1982 Convention and such rights are exclusive in that
no other state may undertake such activities without the express consent of the
coastal state. These sovereign rights do not depend upon occupation or express
procrastination. The Truman concept of resources which referred only to mineral
resources, has been extended to include organizers belonging to the sedentary
species. Where the continental shelf of a state extends beyond 200 miles,
article 82 of 1982 convention provides that the coastal state must make payments
or contributes in kind in respect of the exploitation of the nonliving
resources of continental shelf beyond the 200 miles limit. The payments are to
be made annually after the first five years of production at the side of
question on a sliding scale up to the twelfth year, after which it is to remain
7 percent.
Regarding continental shelf, different times collusion had made by
opposite states. For their different opinion, 2 principles had been made in
International Law:
1.
Equidistance principle or
2.
Principle of Equity.
Through these 2
principles different cases will be discussed as follows:
In North Sea Continental Shelf cases[30]
Germany had two contracts about continental shelf with Denmark and Netherlands,
those were signed by them in 1964 or 1965. though contracts were made but no
area indicating line there had. As a result dispute was made and to solve it
they were went into ICJ. As, the subject matter of contracts was same, so that,
the court solved problem easily. In such a case, recourse may be had to
equitable principles provided a reasonable result was reached.
In Anglo-France continental shelf case[31]
about 10 years (1964 to 1975) UK and France failed to decide their continental
shelf area. At last they decided, that, problem will be solved through Arbitration.
In 1977 of June Arbitration decide their area on the basis of principle of
equity.
In Tunsia-Libya Continental Shelf case[32]
on 10th June of 1977 Libya or Tunisia made a contract to solve
problem by the decision of ICJ to decide their continental shelf area. The
request ICJ to provide a acceptable judgment. When judgment given by ICJ
Tunisia was not satisfied by that decision of ICJ, and Tunisia made revision.
But when revision made the ICJ made active again the previous judgment. This
judgment also provide through the principle of equity.[33]
In Libya-Malta Continental Shelf case[34] both the states have signed 1982
convention but because of certain natural cause’s dispute arise for continental
shelf. Both the states demand extra areas on continental shelf, and after that
to solving problems they went into ICJ. At last the pronounced its judgment on
the basis of principle of “Equidistance”. For these reasons it can be said, for
deciding the area of continental shelf the court can follow any one of these two
principles.[35]
It has already been mentioned that, form baseline to 12 nautical miles is
territorial sea. (Article: 3 of 1982 convention). Form base line to 24 nautical
miles is contiguous zone; on in other words, form territorial sea to 12
nautical miles is contiguous zone. (Article 33(2) of 1982 convention). And
finally form baseline to 200 nautical miles is exclusive economic zone.
(Article 57 of 1982). Now let’s come to the point, according to article 33(2)
it has been clearly mentioned that, form baseline to 24 nautical miles is
contiguous zone. And any coastal state has its exclusive sovereignty or
absolute power into these areas. The coastal state can use these areas for his
own necessities not other. It is the zone not open for any other state. The coastal
state may exercise the control necessary to:
a)
Prevent infringement of its custom, fiscal, immigration
or sanitary regulations within its territory.
b)
Punish infringement of the above regulations committed
with in its area.
Like this it has also been ensured by article 57 of
1982 convention, form baseline to 200 nautical miles is exclusive economic zone
for any state. And article 56 says that, coastal state has its absolute
sovereignty into zone. As coastal state also con exercise:
a)
Sovereignty rights for the purpose of exploring and
exploiting, con serving and managing the natural resources, whether living or
non living of the water 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 the water,
currents and winds.
b)
Jurisdiction with regard to
1)
The architecture and use of artificial islands,
installations and structures,
2)
Marine scientific research,
3)
The protection and preservation of the marine
environment.
These all purposes to which the coastal state con use its our
necessities. Now, in this case, it is a matter of regret is that, being a poses
country we have not our full and absolute control into this zone.
Maritime Zones of Bangladesh
and the disputes with India and Myanmar
4.1 Maritime Zones of Bangladesh
Through the
rivers of Bangladesh, about 2.4 tons of silt flows annually into the Bay of
Bengal. The country's 720-kilometre coastline is heavily indented and dotted
with small islands/islets. The water of the coastline is very unstable and
non-navigable, except by country boats.
For Bangladesh, a normal baseline is not appropriate, and straight
baseline is the one that suits it. The delineation of straight baseline is
recognised in the UN Law of the Convention.
Bangladesh's baseline was notified through a gazette notification of
April 16, 1974 issued by the Ministry of Foreign Affairs.
Under the law of 1974, Bangladesh claims 12 miles territorial sea and 200
miles economic exclusive zone from the baseline, and claims the continental
shelf to the outer limits of the continental margin bordering on the ocean
floor or abyssal floor.
It is noted that the definition of continental shelf has been given both in
legal and geological terms. In geology, the continental margin includes
continental slope and continental rise, but in legal terms the continental
shelf includes both these geological structures.
The continental shelf of Bangladesh constitutes a gradual slope from the
coast because of inflow of the billion tons of silt from its rivers and,
accordingly, many experts claim the continental shelf of Bangladesh may easily
extend to 350 miles, subject to the conditions of the UN Convention.[36]
4.2 Disputes with India and Myanmar
Though
theoretically or legally it has been ensured in UNCLOS III that, in these zones
we have our absolute power, but practical situations is completely different,
in this areas now, India or Myanmar are interfering and using the zones for
fulfilling their own necessities.
According to Law of sea, it is clearly mentioned, form baseline to 200
nautical miles Bangladesh contains its own exclusive economic zone, that means,
in this area Bangladesh has its absolute ownership, but practically, Bangladesh
sharing this areas with Myanmar and India. And this sharing is illegal because
how Bangladesh sharing this, Bangladesh itself does not know. Besides this,
some cases, contiguous zone or they enters into the areas of contiguous zone
without permission of Bangladesh. For these types of problems, Bangladesh can
not makes the proper use of this zones. Besides this being a poor country
Bangladesh also can not go into collusion with them. But, after that, it is
also true. That, Bangladesh many times tried to solve problems through
negotiation.
If frankly speaking, it is the problems which had been continuing form 35
years. Its exactly started during the ruling time of Bangabandhu Sheikh Mujibur
Rahaman. In 1974, Mujib Govt. took an attempt to find out the resources of oil
and gas into sea, but Myanar had an objection on that. As a result Mujib Govt.
solved those problems through mutual understanding and after that, mission
again started. But after the murder of
Bangabandhu Sheikh Mujibur Rahaman. the mission could not be continued
and ultimately that inquiry stopped there. This was the time of starting
problem. Which still contusing. But recently, Bangladesh has gone to Security
Council to solve the problem through proper legal proceedings.
Both Myanmar, India and Bangladesh has their disputed areas into seas
among them, except Bangladesh at first Myanmar or India brought their objection
to security council Because unlike Bangladesh, they were too much concerned
about their rights or power exists on sea though Bangladesh had an opportunity
to go there, but Bangladesh has gone there after passing time. But oppurtunity
is not happens always, according to the Law of Sea, 1982,if Bangladesh do not
demand their areas (those are also disputed except exclusive economic zone)
before 2011 with reasonable laws or evidence, in that case, Bangladesh will
lose those rights or zones also.
Last year, for solving the dispute a melting was held between Bangladesh,
India and Myanmar but no result has brought out. Besides it from 1978 to 1986,
8 times different discussion had been made but not solution has sun. In 1980
discussion also made with India and Bangladesh but the result was same.
Regarding this, one thing was ensured by them, until and unless disputes
are solved no inquiry will be made by any of them. But they have broken their
promises. For this reasons, Bangladesh decided to go to Security Council.
Primarily Bangladesh wants to establish their rights on contiguous zone and
exclusive economic zone. After it, to establish rights on continental shelf
like other states Bangladesh again need to go to Security Council before 2011.
Because after 2011, legally Bangladesh will lose their rights over continental
shelf as dispute continuing form 35 years. And there is well known maxim “delay defects equity”.
Recommendations for Protecting
the Maritime Interest
The people of
Bangladesh have historically been a sea-faring people. The limited land
resources available to us and the disparity between those resources and
subsistence need of the 120 million population of Bangladesh makes it
imperative to recognize the potential of the occurs as a tangible promise for
the future. Sea is the only link of Bangladesh with the countries of the out
side world with the exception of India and Myanmar 98% of our total exports and
imports travel by sea. Some ships including Bangladesh flag vessels arrive
monthly in the parts of Chittagonj and Mongla. Bangladesh has to depend on
imports of fuel, raw material, spares and military hardware through the sea. We
can not afford to stockpile large quantities of these items due financial
constraint and as such critical supplies will have to come through the sea.
Stoppage of impact of food again and POL will be at the sake of nations
survival. So undisturbed flow of shipping in and out of our parts is vital to
the economic survival and defence of the country keeping the above in purview,
the Govt. of Bangladesh through an act of parliament enacted the territorial
waters and parliament enacted the Territorial
Waters and Maritime Zones Act 1974 (Act no XXVI of 1974) almost
simultaneously when the discussion of Law of sea was going on and much before
the Law of the sea was placed for signature of the 1982. the act, provides for
declaration of the following maritime zones and matters ancillary there to. By
enforcing these declaration ancillary of this act with some amendments
primarily problems can also be solved.
5.1 Recommendation on Territorial waters
The government
may declare the limits of the sea beyond the land territory and internal waters
of Bangladesh which shall be the territorial waters of Bangladesh specifying
the notification the baseline.
1)
form which such limits shall be measured; and
2)
the waters on the land ward side of which shall form
part of the internal waters of Bangladesh.
Where a single island rock or a composite group there of constituting the
part of the territory of Bangladesh is situated seawards from the main coast or
baseline, territorial waters shall wetend to the limits declare by notification
measured from the low waterline along the coast of such island, rock or
composite group. The sovereignty of the republic extends to the territorial
waters as well as to the air space over and the bad and of such waters. No
foreign ship shall unless it enjoys the right of innocent passage, pass through
the territorial waters.
5.2 Recommendation on Contiguous Zone
The zone of the
high seas contiguous to the territorial waters and extending seawards to a line
06 nautical miles measured from the outer limits of the territorial water is
hereby declared to be the contiguous zone of Bangladesh. (according to the Act
of 1974). And now Bangladesh may claim 24 nautical miles of contiguous zone as
against 6 nautical miles which declared under the Act of 1974. the Government
may exercise such powers and take such measures in or respect of the contiguous
zone. As it may consider necessary to prevent and punish the contravention of
and attempt to contravene any law or regulations in force in Bangladesh
relating to the security of the republic, the immigration and sanitation, and
custom and other fiscal matters.
5.3 Recommendation on Economic Zone
The Government may, by notification in the
official Gazette, declare any zone of the high seas adjacent to the territorial
coater to be the economic zone of Bangladesh specifying there in the limit of
the zone form base line to 200 nautical miles (according to 1982 convention).
All natural resources with in the economic zone, both living and non living on
or under the seabed and subsoil or on the water surface or with in the water
column shall vest exclusively in the republic. Nothing shall be dressed to be
the affect fishing with in the economic zone by a citizen of Bangladesh or any
other state.
5.4 Recommendation on Continental Shelf
A continental
shelf is that zone, where every states con use it for their own purposes. It is
the area beyond high seas. Therefore, it is the place is not under control of
any state. But to avoid certain difficulties government may, by notification in
the official Gazette, specific the limits there of, No person shall except
person in accordance with the terms of a license or permission granted by the
Government explore or exploit any resources of the continental shelf or carry
out any search or excavation or conduct any research with in the limits of the
continental shelf.
The government may with a view preventing and controlling marine
pollution and preserving the quality and geological balance in the marine
environment in the high seas adjacent in the marine environment in the high
seas adjacent to the territorial coasters, take such measures as it may dress
appropriate for the purpose. The Government may make rotes for carrying out the
purpose of this Act. In particular and without prejudice to the generality of
the foregoing power, such rotes may provide.
1)
For the regulation of the conduct of any person in of
upon the territorial coaters, contiguous zone, conservation, and continental
shelf.
2)
For measures to protect, use and exploit the resources
of the economic zone.
3)
For conservation measures to protect the living
resources in the sea.
4)
For measures regulating the exploration and
exploitation of resources within the continental shelf.
5)
For measures designed to prevent and control of marine
pollution of the high sea.
Conclusion
A
universal regime for governance of the occurs is needed to safe guard security
and economic interest, as well as to defuse those situations in which competing
uses of the seas are likely to result in conflict. In addition to strongly
supporting freedom of navigation, the convention provides on effective
framework for serious efforts to address pressures upon the occurs resulting
from land and sea-based sources of pollution and over fishing. Many agreements
relating with law of sea provides with all that with a near term opportunity to
join with other industrialized nations in a widely accepted international order
to regulate and safe guard the many diverse activities, interests and resources
in the whole oceans. The principle accomplishment of the UNLOS convention in
the establishment of a clear set of maritime zones, the territorial sea,
contiguous zone, EEZ and continental shelf, which uphold the security and
resource interests of coastal states, parlance against the interest of maritime
nations to have relatively open access to the oceans for navigation, over
flight and telecommunications. This careful balanced of maritime zone reverses
a disturbing purposes in jurisdiction creep in which some states claimed
territorial seas of up to 200 nautical miles in order to create a mono poly
over coastal resources or for purposes of security. The yearly production of
marine resources are over US $50 billion in the developing countries. The Bay
of Bengal has much potentials in fish and sea food. The annual catch of fish is
about 7.5 thundered thousand tons. Besides providing nutrition to our people
the earning of foreign exchange from fish exports alone more than 500 crore.
Exports are of the opinion that oil, gas, metals cobalt and magnetite, nickel,
soda, ash, chorine hydrochloride are abundantly lying in the seabed which can
be used for industrial purposes if tapped properly. Effective and scientific extraction
and preservation of sea resources could change our lot. But we capable to do
so? To accept this challenge we have to delimit maritime boundary and
consolidate our position in the Bay of Bengal more effectively to derive
maximum benefit out of it. We must have effective and modern maritime
instruments to master over the whole area of our economic zone in the line with
the Law of sea.[37] It is
also important that the sea-boundaries of territorial sea, economic zone and
continental shelf with our neighbours -- India and Myanmar -- need to be
settled for exploration and exploitation of marine resources (living and
non-living).
Finally, in October 2009, Bangladesh declared going to the international
tribunal to settle the maritime boundary disputes with India and Myanmar as the
three countries failed to resolve the differences through bilateral talks.
Earlier, Bangladesh appointed British lawyer Vaughan Lowe (QC) while India
nominated Srinivasan Rao as its lawyer to the tribunal. Bangladesh, Myanmar and
India appear to be inflexible in their respective positions on the issue.
Experts say the three countries could not even agree on deciding the starting
point for demarcating sea boundary.
Besides, they have differences in methods for maritime boundary delimitation.
Dhaka demands for "equity" method, which, it insists, will ensure
win-win conditions for Bangladesh, Myanmar and India. On the other hand, India
and Myanmar press for "equi-distance" principle, which, Dhaka says,
will deprive Bangladesh of 17 out of 28 sea blocks. India makes claim on 10 and
Myanmar demands 7 sea blocks. India and Myanmar claim the Bay of Bengal in such
a way, which would block Bangladesh's access to sea routes. [38]
In November 2008, Bangladesh and Myanmar was on the verge of getting into
an armed conflict over oil and gas exploration in the disputed sea blocks.
Tension also rose high in December 2008 as an Indian survey vessel intruded
into the disputed waters.
The problems, however, were resolved through diplomatic initiatives.
Recently, Bangladesh and Myanmar achieved progress in bilateral talks and
decided to stay away from ITLOS.
But the problem is still hanging with Bangladesh and India. On 28
February 2010, the International Tribunal for the Law of the Sea (ITLOS) has
appointed three arbitrators to settle the maritime disputes between Bangladesh
and India. With the appointment of three arbitrators—Rudiger Wolfrum of
Germany, Tullio Treves of Italy and Ivan Shearer of Australia—the tribunal gets
the required five-member panel, which will finalise the maritime boundary in
the Bay of Bengal. [39]
We hope the tribunal would bring an end to the long-standing disputes
between Dhaka and New Delhi over the claim of 10 oil and gas blocks in the Bay
of Bengal.
REFERENCES
Statutes
1.
Territorial
Waters and Maritime Zones Act 1974 (Act no XXVI of 1974).
2. UN Convention on the Law of the Sea III, 1982.
Books
1. Mizanur Rahaman, International Law (In Bangali), 1st
ed. (Dhaka: Pallal
Prakashani, 2003).
2. S.K. Kapoor, International Law and Human Rights, 15th
ed. (India: Central
Law Agency, 2004).
3.
Malcolm N. Shaw, International
Law, 14th ed. (UK: Cambridge University Press, 1997).
4.
Muhammad Jamiruddin Sircar, Glimpses of International Law, 1st ed. (Dhaka, 1997).
5.
Rebecca M.M. Wallace, International Law, 3rd ed. (London: Sweet and Maxwell
Limited, 997).
Journal
- Mohd Khurshed Alam, “Law of the Sea and implication in Bangladesh”, BISS Journal, vol.19, no.4, (1998).
Cases
- Norwegian Fisheries case, TCT, (1951).
- Rex v. Anderson case (1868).
- State v. Anomalous case (Italy v. Greece, 1974).
- Corfu Channel case, (Uk v. Albania, ICJ, 1949).
- Re Martinez case, (1959).
- Fisheries Jurisdiction case, (USA & Germany v. Iceland, ICJ, 1974).
- Lotus case, (PCIJ, 1927).
- North Sea Continental Shelf case (Federal Republic of Germany v. Denmark & Nether land, ICJ, 1969).
- Anglo French Continental Shelf case (UK v. France, 1978).
- Tunisia v. Libya Continental Shelf case (ICJ, 1982).
- Libya v. Malta Continental Shelf case (1985).
Web pages
- [http://www.bdnews24.com/details.php?id=154755&cid=2, accessed on 10 March 2010].
- [http://www.thedailystar.net/story.php?nid=21139, accessed on 10 March 21, 2010].
- [file:///C:/Documents%20and%20Settings/ERSHAD/Desktop/amita/bangladesh-should-claim-its-legitimate-sea-territory.html, accessed on 10 February 2010].
[1] [http://www.thedailystar.net/story.php?nid=21139,
accessed on 10 March 21, 2010].
[2]
[file:///C:/Documents%20and%20Settings/ERSHAD/Desktop/amita/bangladesh-should-claim-its-legitimate-sea-territory.html,
accessed on 10 February 2010].
[3] Muhammad
Jamiruddin Sircar, Glimpses of
International Law, 1st ed. (Dhaka: Published
in 1997), p.56.
[4] Mohd
Khurshed Alam, “Law of the Sea and implication in Bangladesh”, BISS Journal, vol 19, no.4, (1998),
p.529.
[5] Malcolm N.
Shaw, International Law, 14th
ed. (UK: Cambridge University Press, 1997), p.390.
[6] Mohd
Khurshed Alam, ibid, p.530.
[7] S.K.
Kapoor, International Law and Human
Rights , 15th ed (India: Central Law Agency, 2004), p.249.
[8] Rebecca
M.M. Wallace, International Law, 3rd
ed. (London: Sweet and Maxwell Limited, 997), p.134.
[9]
Muhammad Jamiruddin Sircar, ibid, p.162.
[10] Rebeeca M
M. Wallace, ibid, p.135.
[11]
Malcolm N. Shaw, ibid, p.390.
[12] Mizanur
Rahaman, International Law,(in
Bangali), 1st ed. (Dhaka, Pallal Prakashani, 2003), p.144.
[13] Malcolm N.
Shaw, ibid, p.394.
[14] ICJ,
1951.
[15] Mizanur
Rahaman, ibid, p.145.
[16] Rebeeca
M M. Wallace, ibid, p.141.
[17] Belgium v. USA, 1887.
[18] Italy v. Greece, 1974.
[19]
Mizanur Rahaman, ibid, p.147.
[20] S. K.
Kapoor, ibid, p.247.
[21]
Malcolm N. Shaw, ibid, p.404.
[22] UK v. Albenia, ICJ, 1949.
[23]
Mizanur Rahaman, ibid, p.152.
[24] ICJ,
(1959).
[25]
Malelom N. Shaw, ibid, p.412.
[26]
Mizanur Rahaman, ibid, p.15.
[27]
Malelom N. Shaw, ibid, p.418.
[28] U.S.A. and Germany v. Iceland, ICJ,
1974.
[29]
Malclom N. Shaw, ibid, p.418.
[30] Federal Republic of Germany v. Denmark and
Netherland, ICJ, 1969.
[31] UK v. France, 1978.
[32]
ICJ, 1982.
[33] Malclom N.
Shaw, ibid, p.434.
[34]
ICJ, 1985.
[35] Mizanur
Rahaman, ibid, p.464.
[36] [http://www.thedailystar.net/story.php?nid=21139,
accessed on 10 March 21, 2010].
[37]
Mohd Khurshed Alam, ibid, p. 534.
[38]
[http://www.bdnews24.com/details.php?id=154755&cid=2, accessed on 10 March
2010].
[39]
[http://www.bdnews24.com/details.php?id=154755&cid=2, accessed on 10 March
2010].
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