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International Law of the Sea (Essay Sample)


Assignment Type:
Critical Thinking / Review
9 pages / 2500 words (Double spacing)
Education Level:
English (UK)
Assignment Topic:
International Law of the Sea
5 sources required
Citation Style:
*Citation style is OSCOLA*
Under international law a coastal state has very little discretion to either prevent or control the passage of warships, nuclear-powered ships or ships carrying dangerous or noxious substances through its territorial waters.


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Table of Contents
 TOC \o "1-3" \h \z \u  HYPERLINK \l "_Toc100164414" Introduction  PAGEREF _Toc100164414 \h 3
 HYPERLINK \l "_Toc100164415" Lawful Limitations on Innocent Passage  PAGEREF _Toc100164415 \h 4
 HYPERLINK \l "_Toc100164416" Laws relating to Coastal State Innocent Passage  PAGEREF _Toc100164416 \h 4
 HYPERLINK \l "_Toc100164417" Rights of Protection of the Coastal State  PAGEREF _Toc100164417 \h 6
 HYPERLINK \l "_Toc100164418" Differing Interpretations Regarding Innocent Passage  PAGEREF _Toc100164418 \h 6
 HYPERLINK \l "_Toc100164419" Unlawful Restrictions Claimed by Outlier States  PAGEREF _Toc100164419 \h 9
 HYPERLINK \l "_Toc100164420" Obligations of Ships during Transit Passage  PAGEREF _Toc100164420 \h 10
 HYPERLINK \l "_Toc100164421" Bordering Straits Relating to Transit Passage  PAGEREF _Toc100164421 \h 11
 HYPERLINK \l "_Toc100164422" U.S. Freedom of Navigation (FON) Program  PAGEREF _Toc100164422 \h 11
 HYPERLINK \l "_Toc100164423" Conclusion  PAGEREF _Toc100164423 \h 13
 HYPERLINK \l "_Toc100164424" Bibliography  PAGEREF _Toc100164424 \h 15

The passage of warships through a coastal state's territorial waters is regulated by the United Nations Convention on the Law of the Sea. Coastal states have very little discretion to prevent or control the passage of warships, nuclear. Most coastal nations don't want large ocean-going vessels within hundreds of miles of shoreline unless the purpose is military. Even though maritime security is important, not everyone agrees that international waters should be treated differently. The UK, US, Russia, and China oppose this idea, whereas Japan does support it. International Law permits coastal states considerable latitude regarding control measures against belligerent ships, including search and seizure operations, boarding, detention, and confiscation. Coastal states should have more authority over ships in international waters.
The 'Due Regard' Clause Under Article 234 of UNCLOS
The' Due Regard' Clause has little under Article 234 of UNCLOS on coastal states. Article 234 of the 1982 Convention on Law of Sea states, "due regard shall be paid to historical rights acquired following international law." In short, due regard means respect for existing historical uses of marine space. It does not grant coastal states a large degree of authority to manage maritime traffic in ways they consider appropriate. Article 234 of the 1982 Convention on Law of Sea allows the coastal State to allow or prohibit the transit of warships, including nuclear-powered vessels. However, it gives the coastal state very little leeway to stop or regulate transiting warships.
Lawful Limitations on Innocent Passage
Laws relating to Coastal State Innocent Passage
The UN Convention on Law of Sea (UNCLOS) came into existence in 1982 and currently covers nearly 90 percent of Earth's oceans. It provides guidelines for state conduct towards ships within its territorial waters. It states that coastal nations shall not impede navigation and trade. In addition, it requires coastal states to assist vessels whose safety is threatened by natural disasters. Most importantly, it protects shipping rights of innocent passage and freedom of navigation. Ships passing through international waters must ensure that they don't infringe upon another nation's sovereign territory.
Additionally, foreign ships entering port areas must respect local laws regarding pollution. Ships transiting between two ports should enjoy free transit and unimpeded access to other countries' territories. These principles apply to landlocked countries too.
UNCLOS defines "innocent passage" as follows: "the exercise of freedom of navigation and overflight within the territorial sea." This implies that states cannot block ships passing through territorial waters unless they have a legitimate excuse. Accordingly, although China claims sovereignty over islands close to Hainan Island, its policy toward boats seeking safe passages violates international Law. As it stands now, Beijing insists that "any country whose vessel enters Chinese territory will lose any case before the tribunal." However, the PRC's position appears incompatible with Article 55(1)(b) of the 1982 United Nations Convention on Law of Sea. At least one of the nine UNCLOS articles restricts coastal states' rights. Article 56 makes it unlawful for anyone to enter or leave any area claimed by a coastal State except according to established procedures. China asserts the power to restrict entry into areas under its jurisdiction based on national interests, but it has yet to define a 'national interest.' More importantly, there has never been any precedent wherein a nation attempted to claim ownership over vast oceanic territories. On the contrary, the US and Russia are parties to the dispute over the Kuril Islands (which Japan calls Takeshima).
When a ship travels through waters controlled by another country, it is referred to as innocent passage (IP). Innocent passage exists under international law, but states cannot impose restrictions on ships passing within 12 nautical miles off each coast unless specific conditions are met. The IP Convention was adopted on May 26th, 1963. Since then, 189 parties have signed and ratified it, including almost every nation except Sudan and Somalia. At least since 2004, the Convention has been effective. Any attempt to restrict the free flow of goods and services across national borders violates the principles of free trade and constitutes mercantilism, which seeks to protect local industries against foreign competition.
Most states along the coastlines of international waters enjoy territorial sovereignty. Consequently, they cannot interfere with ships passing through the maritime area covered under the UN Convention on Laws of Seas of 1982. An exception to this principle was granted to countries situated far away from the coastline since their defense forces had difficulty monitoring maritime traffic. In 1988, the United States accepted the exceptions made in Article 76(4)(a). Nowadays, some western hemisphere's coastal states try to assert sovereign rights of sea areas under the exclusive economic zone and continental shelf beyond 200 nautical miles from the coasts, claiming that the article mentioned above allows this assertion. All marine vessels must fly flags indicating ownership. Each country can impose rules regarding vessel registration, size and speed limits, safety regulations, fuel requirements, and cargo capacity.
Rights of Protection of the Coastal State
Coastal states may only take measures to protect their fisheries, other economic activities, and the environment against threats posed by the passage of ships. They may not, for instance, close part of their territorial sea to all maritime traffic to gain some economic advantage in the fisheries or other sectors.
Differing Interpretations Regarding Innocent Passage
The innocent passage refers to vessels passing near another vessel without causing damage. Under Article 19(2)(b) of the Convention on Safety of Life at Sea (SOLAS) 1982, an innocent passage occurs when two ships pass within 200 meters of each other nearby, and both proceed safely. According to the United Nations Convention on Law of the Seas (1982), innocent passage means a ship passes nearby another vessel but does not hit or collide. Therefore, although UNCLOS states that innocent passage must occur between vessels of equal size, it does not guarantee safe passage. Thus, the interpretation of whether an innocent passage applies depends upon the circumstances surrounding the occurrence.
UNCLOS defines innocent passages as water areas adjacent to coastal states' land features whose depth exceeds 200 meters. At least 30 percent of each side of the border shall be occupied by the sea bed and special maritime zones. On either side of these waters, the coastal State concerned shall exercise jurisdiction and sovereign rights and responsibilities related to navigation and fishery management, including exploration and exploitation of hydrocarbons and mineral deposits following international Law. Based on this definition, several countries believe that they possess an independent entitlement to the Exclusive Economic Zone (EEZ). Others argue that the exclusive economic zone belongs solely to the country owning the continental shelf and territorial seas surrounding the coast. Under UNCLOS, any nation possessing sovereignty above the 200-meter mark owns all the seabed below that level, thus creating the EEZ. All states claim ownership of their EEZs, but none claim ownership of everyone else's. The United States says that China does not properly administer its EEZ, and Canada objects to Chinese oil drilling off Baffin Island near Arctic Circle. China disagrees. Russia disputes Canada's assertion of a portion of the Beaufort Sea area east of Alaska. Canada believes Russia occupies too large an extent of territory west of Hudson Bay.
Although the innocent passage was made clear in the UN Convention on the Law of Sea, various countries interpreted it differently. A lot of confusion arises due to varying interpretations. Different countries interpret the laws differently. The US interprets the Law differently from Mexico. This gives rise to different policies across the globe. For instance, China claims territory based on historical maps, whereas Japan bases its claims on scientific evidence. Also, a lot of disputes arise fro...

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