Abstract
The manifestations of the state as a public law entity reveals itself in many ways. One particular way in which it does so is through the powers of control, legislative and enforcement jurisdiction that is afforded the State through customary international law and public law treaties. The United Nations Convention on the Law of the Sea, in its codification and crystallization efforts, takes cognizance of the practice of states having due regard to historical antecedents. The practice of States have evolved over time. The practice, coupled with the increased use of technology, has undoubtedly impacted the application of the international rules in respect of the coastal, flag and port state jurisdiction. In recent times, the rules have been interpreted to take account of evolving developments. This paper deals with the zonal and functional approaches as expressed through UNCLOS. The zones of the internal waters, territorial seas, contiguous zone, exclusive economic zone and the high seas beyond national jurisdiction as captured by UNCLOS are dealt with in relation to the functional underpinnings that gird the demarcation of the zones. The coastal State’s powers of legislation, jurisdiction and enforcement are examined in the light of modern considerations and so are the issues attendant to port and flag State jurisdiction. Recent pronouncements of the International Tribunal of the Law of Sea is cited to shed light on the functional approach to the utilization of the zones and the limits of the powers of the coastal State.
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Notes
- 1.
United Nations Convention on the Law of the Sea, 1833 UNTS 3; 21 ILM 1261 (1982).
- 2.
UNCLOS also deals comprehensively with island states, archipelagic states, land-locked and geographically disadvantaged states and other characterizations.
- 3.
Bordin (2002).
- 4.
MV Saiga case (Saint Vincent and the Grenadines); ITLOS case No. 1 1997 and 2 [1999] http://www.itlos.org/startz-en.ntml.
- 5.
This therefore acts as an exception to the unrestrained powers of sovereignty of the coastal State in Internal Waters. UNCLOS Article 8(1).
- 6.
Churchill and Lowe (1988), p. 55.
- 7.
UNCLOS Articles 2, 3 and 4.
- 8.
Based on the distance travelled by a cannon shot fired from the coast.
- 9.
UNCLOS Article 13.
- 10.
UNCLOS Article 19(1).
- 11.
UNCLOS Article 19.
- 12.
See UNCLOS Articles 4 to 45.
- 13.
See the m.v. Saiga case, p. 2.
- 14.
UNCLOS Article 56 1(b).
- 15.
UNCLOS Article 56.
- 16.
This must be read together with Articles 238–304 which amongst others deals with the obligations of states to foster international cooperation and peaceful ends.
- 17.
Phillips (1977).
- 18.
UNCLOS Article 246.
- 19.
UNCLOS Articles 252 and 253.
- 20.
Pardo (1982).
- 21.
UNCLOS Article 87.
- 22.
UNCLOS Article 88.
- 23.
UNCLOS Article 89.
- 24.
UNCLOS Article 90.
- 25.
UNCLOS Article 120.
- 26.
UNCLOS Article 87.
- 27.
The Asya case, cited as Naim Molvan v. Attorney-General for Palestine (Asya Case), 1948 App Cas 351 (P. C.), 81 LI. L. Rep. 277.
- 28.
UNCLOS Article 91. It is however not clear what is meant by “genuine link” as the Convention does not explain it. See also the United Nations Convention on Conditions for the Registration of Ships 1986 which incidentally did not garner sufficient ratifications to enable its entry into force.
- 29.
UNCLOS Article 111.
- 30.
UNCLOS Article 111 (1) and (4).
- 31.
UNCLOS Article 61.
- 32.
UNCLOS Articles 66 and 67.
- 33.
UNCLOS Article 192.
- 34.
UNCLOS Articles 194 and 211(1).
- 35.
Churchill and Lowe (1988), pp. 83–84.
- 36.
UNCLOS Article 60(2).
- 37.
ITLOS Ruling, para. 127.
- 38.
Nigeria and Ghana are parties to the Convention and Statute on the International Regime of Maritime Ports [Article 2] 1923 Dec 9, 1923 LNTS 202; The Navigable Waterways Convention.
- 39.
Corfu Channel case.
- 40.
Naya International Treaties; The case of NML Capital Limited Vs the Republic of Argentina.
- 41.
Barcelona Convention and Statute on the Regime of Navigable Waterways of International Concern; Convention and Statute on the International Regime of Maritime Ports 1923.
- 42.
UNCLOS Article 30.
- 43.
Churchill and Lowe (1988).
- 44.
UNCLOS Article 27.
- 45.
The cases of the SS Lotus and Enrica Lexis provide detailed discussion of issues on concurrent jurisdiction of the flag State and coastal State.
- 46.
UNCLOS Article 21(1).
- 47.
UNCLOS Article 21(3).
- 48.
The Australian Maritime Safety Act 1990; AMSA.
- 49.
UNCLOS Article 24.
- 50.
UNCLOS Article 25.
- 51.
Gordon (1915).
- 52.
Nottebohm Case (Liechtenstein v. Guatemala) (1955), ICJ Reports 4-27. P.23.
- 53.
See in general Mansell (2009), pp. 13–14.
- 54.
See Seafarers Rights International, Flag State Responsibilities and Seafarers Rights http//seafarersrights.org/.
- 55.
Definition of “law of the flag”, Duhaime’s Law Dictionary, Duhaime.org.
- 56.
See Lauritzen v. Larsen 5 U.S. 571 (1953).
- 57.
United Nations Convention on the Conditions for the Registration of Ships provides the basis for the use of the words “genuine link” but which never entered into force.
- 58.
UNCLOS Article 94 (2) (a).
- 59.
International Convention for the Safety of Life at Sea (SOLAS), 1184 UNTS 278.
- 60.
International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL), 12 ILM 1319;1340 UNTS 184.
- 61.
International Convention on Load Lines, 1966, 640 UNTS 133.
- 62.
International Convention on Standards of Training, Certification and Watch-keeping of Seafarers, 1978, 1361 UNTS 2 as amended in 1995 and 2010 (Manila Amendments).
- 63.
Convention on the International Regulations for Preventing Collisions at Sea, 1972, 1050 UNTS 16.
- 64.
45 ILM 792 (2006).
- 65.
UNCLOS Article 217(3).
- 66.
UNCLOS Article 217(5).
- 67.
Hebei Spirit December 2007; the Prestige and the Erika.
- 68.
Negligent Masters have either been left off the hook or been given menial sanctions.
- 69.
UNCLOS Articles 217 (6) and (7) give detailed provisions.
- 70.
UNCLOS Article 99 deals with the suppression of slave trade, the right of visit by warships in such circumstances; UNCLOS Articles 110 (1) (b). The sort of slavery envisaged by UNCLOS is akin to what happens today with respect to the trafficking of women and children. It is however doubtful if these provisions would be adequate in dealing with the new menace of human trafficking; Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children which supplements the United Nations Convention against Transnational Organised Crime (2000).
- 71.
UNCLOS Article 8 provides for what constitutes internal waters with the requisite exceptions.
- 72.
UNCLOS Article 218 deals with the enforcement powers of port States.
- 73.
UNCLOS Article 219 deals with measures relating to seaworthiness of vessels to avoid pollution.
- 74.
MARPOL Article 6 (1).
- 75.
UNCLOS Article 218.
- 76.
The acceptance of foreign vessels into ports is essentially a matter of reciprocity largely guided by the 1923 Convention and Statute of the International Regime of Maritime Ports, concluded in Geneva on 9th December 1923, 58 LNTS 285.
- 77.
IMO Resolution A. 682 (17).
- 78.
EU Directive 2009/16/ EC of the European Parliament and of the Council of 23rd April 2009 on Port State control.
- 79.
See IMO Resolution A. 1052(27) of 2011, updated from time to time.
- 80.
International Convention on the Control of Harmful Anti-fouling Systems on Ships, (Anti-Fouling Convention), 2001, IMO Doc. AFS/CONF/26.
- 81.
Preamble to Assembly Resolution A. 1052 (27) 2011.
- 82.
www.abujamou.org provides detailed information on inspections as well as data which encompasses, the number of inspections, deficiencies, detentions, type of ships, flag etc.
- 83.
Recent Conventions such as the International Convention on the Control of Harmful Anti-fouling Systems on Ships, (Anti-Fouling Convention), 2001, IMO Doc. AFS/CONF/26, the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, (Ballast Water Management Convention) 1991, 30 I.L.M. 1455, International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, (HNS Convention), 35 I.L.M. 1406 and The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 (the Ship Recycling Convention or the Hong Kong Convention, http://www.imo.org/en/OurWork/Environment/ShipRecycling/Pages/Default.aspx, all have provisions for compliance that would have to be taken cognizance of under port State control.
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Mbiah, E.K. (2020). Coastal, Flag and Port State Jurisdictions: Powers and Other Considerations Under UNCLOS. In: Mukherjee, P.K., Mejia, M.Q., Xu, J. (eds) Maritime Law in Motion. WMU Studies in Maritime Affairs, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-030-31749-2_23
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