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Roach Internal Waters TS and Innocent Passage

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Information about Roach Internal Waters TS and Innocent Passage
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Published on August 7, 2007

Author: Peppar

Source: authorstream.com

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INTERNAL WATERS, TERRITORIAL SEA AND INNOCENT PASSAGE:  INTERNAL WATERS, TERRITORIAL SEA AND INNOCENT PASSAGE Captain J. ASHLEY ROACH, Judge Advocate General’s Corps, U.S. Navy (retired) Office of the Legal Adviser (L/OES) U.S. Department of State The Rhodes Academy Monday 2 July 2007 INTERNAL WATERS:  INTERNAL WATERS 'Internal waters' are waters on the landward side of the baseline from which the breadth of the territorial sea is measured The sovereignty of the coastal State includes internal waters Foreign ships have no general navigational rights in internal waters except access to ports or in waters made internal by straight baselines (articles 2(1) and 8) TERRITORIAL SEA :  TERRITORIAL SEA Every State 'has the right' to establish the breadth of its territorial sea 'up to a limit not exceeding 12 nautical miles' from properly-determined baselines Sovereignty of coastal State extends to territorial sea and airspace above, but is Subject to right of innocent passage through the territorial sea (articles 2, 3 and 17) TERRITORIAL SEA CLAIMS:  TERRITORIAL SEA CLAIMS TERRITORIAL SEA CLAIMS > 12 NM AT END OF 2006:  TERRITORIAL SEA CLAIMS andgt; 12 NM AT END OF 2006 BENIN (200nm) CONGO (200 nm) ECUADOR (200 nm) EL SALVADOR (200 nm) LIBERIA (200 nm) PERU (200 nm) PHILIPPINES (rectangle) SOMALIA (200 nm) TOGO (30 nm) TERRITORIAL SEA CLAIMS ROLLED BACK TO 12 NM (1):  TERRITORIAL SEA CLAIMS ROLLED BACK TO 12 NM (1) Angola Albania Argentina Brazil Cameroon Cape Verde Gabon Germany Ghana Guinea Guinea-Bissau Haiti Madagascar Maldives Mauritania Nicaragua TERRITORIAL SEA CLAIMS ROLLED BACK TO 12 NM (2):  TERRITORIAL SEA CLAIMS ROLLED BACK TO 12 NM (2) Nigeria Panama Nicaragua Senegal Sierra Leone Syria Tanzania Tonga Uruguay INNOCENT PASSAGE(PART II SECTION 3):  INNOCENT PASSAGE (PART II SECTION 3) RULES APPLICABLE TO ALL SHIPS (SUBSECTION A) INNOCENT PASSAGE:  INNOCENT PASSAGE 'Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea' (article 17) MEANING OF PASSAGE (1):  MEANING OF PASSAGE (1) Navigation through the territorial sea for the purpose of: Traversing without entering internal waters or calling at a roadstead or port facilities outside internal waters; or Proceeding to or from internal waters or a call at such roadstead or port facility (article 18(1)) MEANING OF PASSAGE (2):  MEANING OF PASSAGE (2) Continuous and expeditious Includes such stopping and anchoring as is: Incidental to ordinary navigation Rendered necessary by force majeure or distress Rendering assistance to persons, ships or aircraft in danger or distress (article 18(2)) MEANING OF INNOCENT PASSAGE:  MEANING OF INNOCENT PASSAGE Passage not prejudicial to the peace, good order or security of the coastal State Innocent passage shall take place in conformity with UNCLOS and with other rules of international law (article 19(1)) ACTIVITIES INCONSISTENT WITH INNOCENT PASSAGE (ARTICLE 19(2)):  ACTIVITIES INCONSISTENT WITH INNOCENT PASSAGE (ARTICLE 19(2)) Any threat/use of force against coastal State Exercise/practice with weapons 'of any kind' Intelligence collection against coastal State Act of propaganda directed against coastal State Launching/landing/recovering of aircraft Launching/landing/recovering of any military device …. ACTIVITIES INCONSISTENT WITH INNOCENT PASSAGE (2):  ACTIVITIES INCONSISTENT WITH INNOCENT PASSAGE (2) Loading/ unloading of goods/persons contrary to coastal State’s customs, fiscal, immigration, sanitation laws and regulations ACTIVITIES INCONSISTENT WITH INNOCENT PASSAGE (3):  ACTIVITIES INCONSISTENT WITH INNOCENT PASSAGE (3) Research or survey activities Any fishing activities ACTIVITIES INCONSISTENT WITH INNOCENT PASSAGE (4):  ACTIVITIES INCONSISTENT WITH INNOCENT PASSAGE (4) Willful and serious illegal pollution ACTIVITIES INCONSISTENT WITH INNOCENT PASSAGE (5):  ACTIVITIES INCONSISTENT WITH INNOCENT PASSAGE (5) Acts aimed at interfering with coastal State’s system of communications Any activity not directly bearing on passage INNOCENT PASSAGE:  INNOCENT PASSAGE A right of ALL ships, regardless of: - armament - cargo - flag - means of propulsion Slide19:  NPVs and ships carrying nuclear/ dangerous cargo in innocent passage shall carry documents and observe special precautionary measures established for such ships by international agreement (article 23) May be required to confine passage to sea lanes/TSS (article 22(2)) LIMITATIONS ON INNOCENT PASSAGE:  LIMITATIONS ON INNOCENT PASSAGE Submarines must transit on the surface and show their flag (article 20) Does not include a right of overflight Temporarily suspendable by coastal State for security reasons (article 25(3)) PERMITTED COASTAL STATE REGULATION OF INNOCENT PASSAGE (ARTICLE 21):  PERMITTED COASTAL STATE REGULATION OF INNOCENT PASSAGE (ARTICLE 21) Safety of navigation/regulation of traffic Protection of navigation aids, pipelines, cables Conservation of living resources/prevention of infringement of fisheries laws Preservation of environment/prevention of pollution Marine scientific research and hydrographic surveys Prevent infringement of customs, fiscal, immigration and sanitary laws IMPERMISSIBLE COASTAL STATE REGULATION OF INNOCENT PASSAGE (1):  IMPERMISSIBLE COASTAL STATE REGULATION OF INNOCENT PASSAGE (1) Cannot regulate design, manning, construction, equipment of foreign ships unless giving effect to accepted international standards (article 24(1)(b)) May not impose requirements which have practical effect of denying or impairing innocent passage (article 24(1)(a)) May not charge a levy for mere passage (article 26) IMPERMISSIBLE COASTAL STATE REGULATION OF INNOCENT PASSAGE (2):  IMPERMISSIBLE COASTAL STATE REGULATION OF INNOCENT PASSAGE (2) Cannot be conditioned on prior notification to or authorization from the coastal State Issue debated extensively in 9th, 10th and 11th sessions of UNCLOS III Proposals to include such a requirement did not receive the required support Contrary statements are impermissible reservations EXCESSIVE MARITIME CLAIMS:  EXCESSIVE MARITIME CLAIMS No reservations or exceptions may be made to the LOS Convention (article 309) Article 309 does not preclude a State, when signing, ratifying or acceding to the Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of the Convention, provided that they do not purport to exclude or to modify the legal effect of the provisions of the Convention in their application to that State. (article 310) RESTRICTIONS ON WARSHIPINNOCENT PASSAGE (1):  RESTRICTIONS ON WARSHIP INNOCENT PASSAGE (1) Albania Algeria Antigua andamp; Barbuda Bangladesh Barbados Brazil Bulgaria Burma Cambodia Cape Verde China Congo Croatia Denmark Egypt Finland RESTRICTIONS ON WARSHIPINNOCENT PASSAGE (2):  RESTRICTIONS ON WARSHIP INNOCENT PASSAGE (2) Grenada Guyana India Indonesia Iran Korea, South Libya Maldives Malta Mauritius Oman Pakistan Philippines Poland Romania St. Vincent RESTRICTIONS ON WARSHIPINNOCENT PASSAGE (3):  RESTRICTIONS ON WARSHIP INNOCENT PASSAGE (3) Seychelles Somalia Sri Lanka Sudan Syria UAE Vietnam WARSHIP INNOCENT PASSAGE RESTRICTIONS ROLLED BACK:  WARSHIP INNOCENT PASSAGE RESTRICTIONS ROLLED BACK Former Soviet Union Sweden Turkey OTHER RESTRICTIONS:  OTHER RESTRICTIONS Number of warships Nuclear powered/nuclear cargo Prohibited zones Time limits on passage Compulsory pilotage ENFORCEMENT AGAINST NON-SOVEREIGN IMMUNE VESSELS:  ENFORCEMENT AGAINST NON-SOVEREIGN IMMUNE VESSELS Coastal State may take 'necessary steps' in territorial sea to prevent non-innocent passage (article 25(1)) General procedure: Inform vessel of transgression Provide reasonable opportunity to comply If no compliance, order vessel to depart Use of force, if necessary (minimum required) INNOCENT PASSAGE:  INNOCENT PASSAGE RULES APPLICABLE TO WARSHIPS (SUBSECTION C) SOVEREIGN IMMUNE VESSELS:  SOVEREIGN IMMUNE VESSELS UNCLOS lists two classes of sovereign immune vessels in article 32 Warships Other government ships operated for non-commercial purposes Immunities not otherwise affected except for exceptions in subsection A and articles 30 and 31 ENFORCEMENT AGAINST SOVEREIGN IMMUNE VESSELS (1):  ENFORCEMENT AGAINST SOVEREIGN IMMUNE VESSELS (1) Not subject to enforcement of coastal State laws by: Arrest or seizure Search or inspection Non-consensual boarding Taxation However, they are required to respect coastal State laws (consistent with UNCLOS) ENFORCEMENT AGAINST SOVEREIGN IMMUNE VESSELS (2):  ENFORCEMENT AGAINST SOVEREIGN IMMUNE VESSELS (2) May be required to leave territorial sea if: Violation of coastal state laws or regulations, OR passage is not innocent, AND Warship does not take corrective action (article 30) Attempt to resolve differences through diplomatic channels Use of force, if necessary in self-defense Flag State responsibility for loss or damage (article 31) RULES APPLICABLE TO MERCHANT SHIPS (SUBSECTION B):  RULES APPLICABLE TO MERCHANT SHIPS (SUBSECTION B) Criminal jurisdiction on board a foreign ship (article 27) Civil jurisdiction in relation to foreign ships (article 28) Rules also applicable to government ships operated for commercial purposes CRIMINAL JURISDICTION (1):  CRIMINAL JURISDICTION (1) Coastal State criminal jurisdiction should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or conduct any investigation in connection with a crime committed on board during its passage, except if … CRIMINAL JURISDICTION (2):  CRIMINAL JURISDICTION (2) Consequences of crime extend to coastal State Crime disturbs the peace of the country or good order of the territorial sea Master or diplomatic official has requested local assistance Necessary to suppress drug smuggling CRIMINAL JURISDICTION (3):  CRIMINAL JURISDICTION (3) Article 27(1) not applicable to foreign ship in territorial sea after leaving internal waters (article 27(2)) Diplomatic communications when requested (article 27(3)) When arresting, have due regard to the interests of navigation (article 27(4)) Limitations re crimes committed elsewhere (article 27(5)) CIVIL JURISDICTION(article 28):  CIVIL JURISDICTION (article 28) Coastal State should not stop or divert a foreign ship passing through its territorial sea to exercise civil jurisdiction re a person on board the foreign ship No execution or arrest of ship except for obligations or liabilities assumed or incurred by ship while in passage May levy execution or arrest ship after internal waters Slide40:  QUESTIONS?

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