The law of the Sea | Daily News


 

The UN Convention:

The law of the Sea

Part II

The Maritime Zones Law clearly states that the right exercised by Sri Lanka is a sovereign right which extends not only over the territorial sea but also over the airspace, as well as over the seabed and subsoil. This is in keeping with the text of the Geneva Convention on the Territorial Sea and Contiguous Zone, which have now been repeated in the 1982 Convention of the Law of the Sea. In Sri Lanka, the Maritime Zones Law specifically recognizes the right of innocent passage and states that ships of all States shall enjoy the rights of innocent passage through the territorial sea. In keeping with the 1958 Convention, it categorizes the passage as 'innocent only so long as such passage is not prejudicial to the peace, good order or security of the Republic'.

The proviso to the section states that no foreign warship shall enter or pass through the territorial sea except with the prior consent of and subject to such conditions as may be specified by the Minister. The Act also provides for innocent passage of aircraft through the air space above the territorial sea which must be in accordance with the written laws in force. The Military Aircraft must have the prior consent of the Minister as in the case of warships.

The territorial sea is under the sovereignty of Sri Lanka, Sri Lanka can legislate for this region and has civil and criminal jurisdiction over foreign ships and shipping where they contravene such laws within this region. From early times legislation had been passed in respect of control of fisheries and implementation of customs regulations - the Pearl Fisheries Ordinance of 1925, the Whaling Ordinance of 1936, the Chank Fishery Act of 1953. These Acts are now superseded by the Fisheries and Aquatic Resources Act of 1996 and territorial waters are now defined as 12 nautical miles. The Fisheries Act and the Fisheries (Regulation of Foreign Fishing Boats) Act No.59 of 1979 provides that foreign fishing boats are prohibited from fishing in Sri Lanka waters unless they obtain a license. Those fishing boats without a permit, which are passing through these waters must store their fishing gear away. Furthermore, the Minister can prescribe areas of Sri Lanka waters which are to be reserved solely for Sri Lanka fishermen and local fishing boats. Authorized officers are given the power to stop board and search any foreign fishing boat in Sri Lanka and when they have reasonable ground to believe that and offence has been committed, seize and detain any boat, fishing gear etc, or arrest any person.

Similarly under the Customs Ordinance as amended the customs officers have the power to board and search ships hovering within the territorial waters of Sri Lanka. Punishment can be imposed by way of fines and even forfeiture of a ship where it does not exceed a particular tonnage. Similarly, under the Immigrants and Emigrants Act, authorized officers have the power to enter or board any ship and to detain and examine any person arriving in or leaving Sri Lanka and to require the production of any documents. The Merchant Shipping Act No.52 of 1971 which provides for the registration of ships provides that only Sri Lankan ships may trade in Sri Lanka waters, foreign ships may do so only under a license. Admiralty jurisdiction is vested in the High Court of Colombo. In 1981 three Acts were passed, an Act setting up a National Aquatic Resources Research and Development Agency (NARA), the Coast Conservation Act, and the Marine Pollution Prevention Authority Act. The titles of these Acts are self-explanatory.

Our examination of the Sri Lanka legislation in respect of Sri Lanka's territorial waters shows that in many instances the Sri Lanka authorities have the right of boarding and searching, as well as arresting persons contravening its laws, and authority to detain or forfeit the offending vessel. However, in respect of crimes committed on board the foreign ship, the coastal State exercises no jurisdiction, as here the jurisdiction of the flag State applies. The rule of customary international law is spelt out in Article 27, of the Convention which provides that the criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea, to arrest any person, or to conduct any investigation in connection with any crime committed on board the ship during its passage save only in the specified cases.

In respect of the warships and other government vessels operated for non -commercial purposes, the international law principle of sovereign immunity applies i.e. no State can exercise jurisdiction over another on the basis that all States are equal, par in parem non habet imperium. This principle is given recognition in Article 32 of the 1982 Convention. However, the Convention provides that if a warship fails to comply with the laws and regulations of the coastal State, the coastal State may require it to leave the territorial sea immediately. The Sri Lanka Maritime Zones Law is more stringent as it provides that a foreign ship or a foreign aircraft which acts in contravention of the provisions of this section is liable to confiscation only under exceptional circumstances.

Piracy on the high seas which is not something new is an international law offence but committed on seas within national jurisdictions it may not come within the Convention definition. Hence it becomes necessary to criminalize all acts of piracy or intent to commit piracy, under the national laws as well. Sri Lanka's Maritime law makes provision for criminalizing acts of piracy under the Piracy Act No 9 of 2001. The Suppression of Unlawful Acts against the Safety of Maritime Navigation Act of 2000 provides for the enforcement of the Rome Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation' of 1988. This Act does not specifically refer to piracy but to unlawful acts committed on the seas with the general intention of curbing terrorism.

The High Court of Colombo or the High Court of Western Province has exclusive jurisdiction to try offences under these Acts.

State's Authority over Resources

The Maritime Zones Law speaks of the sovereign rights in territorial waters. Hence, in the territorial sea, Sri Lanka has exclusive rights to the fisheries. This right also extends to the historic waters, part of which has been designated as the territorial sea and part of it as internal waters.

Under the Fisheries and Aquatic Resources Act of 1996, fishing in Sri Lankan waters can be done only under a license issued by the Director of Fisheries. Similarly, local fishing boats have to be registered. In the case of other fisheries, under the Regulation of Foreign Fishing Boats Act of 1979, foreign fishing boats are prohibited from fishing in Sri Lankan territorial waters except under the authority of a permit and there too certain areas can be reserved only for local fishermen. Furthermore, foreign fishing boats which are fishing in these waters have to be licensed. Local fishermen too have to license their vessels and to observe certain rules regarding the use of explosives and poisonous substances which are prohibited. National Aquatic Resources Research and Development Agency (NARA), has among other functions that of promoting the development of fisheries and the fishing industry and regulations may be made under this Act too by the Minister.

The sovereignty of the State extends over the seabed and subsoil of this zone too, so that the State can exploit and extract any minerals in this region. The main activity in this sphere has been an exploration for petroleum. In view of the fact that the State has sovereign rights over the seabed any oil discovered would vest in the State. The Indo - Lanka Boundary Agreements of 1974 and 1976 both provide that where petroleum deposits in the waters delimited between the two countries, forms a single geological petroleum or natural gas structure or fields which extends across the boundary, one State should not exploit any part of such structure or field from its side without seeking to reach an agreement with the other State as to the manner of exploitation as well as apportionment of proceeds deriving therefrom.

The Contiguous Zone

Adjoining the territorial sea is the Contiguous Zone. This zone originated in the customary international law as a functional zone. The Maritime Zones Law makes provision for a contiguous zone in section 4. This states that the President may by Proclamation declare such a zone. The section states that 'where there is a reasonable apprehension of the contravention of any written laws of Sri Lanka in relation to (a) the Security of the Republic. (b) Immigration, health and sanitation or (c) Customs and other revenue matters, the relevant Minister shall take such measures as may be necessary in respect of the contiguous zone, in order to secure the enforcement or to prevent the contravention of such laws'. The Sri Lanka legislation is a little wider in scope as it includes the security of the Republic. Moreover, the Maritime Zones Law speaks of both enforcement of and preventing of the contravention of its laws, whereas the Convention speaks of preventing infringement and punishing infringement, but this is more a difference of terminology rather than of content. Under the Maritime Zones Proclamation, the limit of this zone has been fixed at 24 miles from the baselines so that it now accords with the limits set under the 1982 Convention.

The importance of the functional zones has been largely obviated by the emergence of the Exclusive Economic Zones, and the doctrine of the Continental Shelf which has vastly enlarged the jurisdiction of the State. However the exclusive economic zone is mainly concerned with the exploitation of the economic resources so that the contiguous zone although now merged within the wider limits of the Exclusive Economic Zone (as both zones are measured from the same baseline which is normally the low water line on the coastline) still serves a distinct purpose as the rights which may be exercised therein are confined to prevention and punishment of the infringement of the coastal State's customs, fiscal, immigration or sanitary laws and regulations.

In relation to sanitary laws however the wider pollution prevention zone of 200 miles would overlap the jurisdiction exercised in the contiguous zone. But the Sri Lanka Customs and immigration legislation applies only to the territorial sea of Sri Lanka so that the presence of a contiguous zone plays a useful role in that an extended jurisdiction i.e. up to 24 miles in extent, in respect of these matters may be assumed by the State.

(The writer is a Retired Professor in Law in University of Sri Jayewardenepura. He is an Attorney-at-Law with PhD in Law as well).

Concluded

 


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