malaysia territorial water 25 march 2013

7/28/2019 Malaysia Territorial Water 25 March 2013

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MALAYSIA TERRITORIAL WATER

25 March 2013

LAW 719PM Rohani Mohd Shah


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MALAYSIA

Adopted 12 nm limit

The Malaysian Emergency (Essential Powers)

Ordinance No7,1969,Section 3:

(1) The breath of the territorial water of Malaysia shall be

12 nm and such breath shall except in Straits of Malacca,

the Sulu Sea and the Celebes Sea be measured in

accordance with Article 3,4,6,7,8,9,10,11,12 and 13 of the

Geneva Convention on Territorial Sea and the ContinuousZone 1958

(2) In applying the after said Articles, the expression

territorial sea shall be construed as territorial waters


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LOSC 1982

Article 3

Every State has the right to established the

breath of its territorial sea up to limit not

exceeding 12 nm measured from baselinesdetermined according with the Convention

However there are still some State that can onlyclaim 3nm or less than 12 nm due to theirgeographical features or other legal reason


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Territorial Sea: Sea from thebaseline to the 12 mile limit where

State has full sovereign authority

subject to rights of innocent passage

Internal Waters:

Sea landward of the baselinewhere the State has full sovereign

authority


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Dispute over territorial sea

Conflicts still occur wherever a coastal nation

claims an entire gulf as its territorial waters

while other nations only recognises the more

restrictive definitions of the LOSC 1982

Two recent conflicts

Gulf of Sidra : Libya claimed entire gulf as its territorial

waters and US has twice (1981) and (1989) enforcedfreedom of navigation rights


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Wildenhus case

120 U.S 1 (1887)

It is part of the law of civilised nations that when a

merchant vessel of one country enters the ports of

another for the purpose of trade, it subjects itself to thelaw of the place to which it goes,

Unless

by the treaty or otherwise the two countries have

come to some different understanding or agreement.


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Waite C.J Decision

It would be beneficial if the local government would

refrain from the internal discipline of the ship

This matter should be left to be dealt with by the

authorities of the nations to which the vessel belongedto

If crime is committed on board the ship,

that disturb the peace and tranquility of the country where the vessel

been brought, the offender is not entitled to any exemption then,

he is subjected to the local law for punishment,

only if the local law see fits to assert their authority.


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In a dispute over territorial waters, the state

which controls the waters is known as the

littoral state

The issue of territorial waters is very serious,

as the claim on these waters also includes the

air space above them and the natural

resources below the water.


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CONTIGUOUS ZONE


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Ancient Times

The right is known as coastal right

The inhabitants or rules of a particular sea coast region couldassume ownership of shipwrecks vesels, abandoned ships,their cargoes, that is everything the sea deposited on their

shores.

Considering the Coastal rights as a source of revenue andincome and hoping to increase the numbers of these gifts of

the sea, the inhabitants of coastal regions quite oftenentered into criminal conspiracies with pilots, burned falsewarning lights and installed false signals and beacons.


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Definition

This is a band of water extending from the

outer edge of the territorial sea to up to 24

nm from the baseline within which a State

can exert limited control : for the purpose of preventing or

punishing infringment of its custom,

fiscal,

immigration or

sanitary laws and

regulations within its territory or territorial sea


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Limit of contiguous zone

This will typically be 12 nm wide but could be

more (if a state has chosen to claim a

territorial sea of less than 12 nm) or,

Less, if it would otherwise overlap another

states contiguous zone.


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Platia

Internal Waters:

State has full sovereign authority

Territorial Sea:

State has full sovereign authority subject to rights of innocent

passage

Contiguous Zone:

Certain limited right to protect territorial sea.


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Dispute on contiguous zone

However unlike the territorial sea there is no

standard rule for resolving such conflicts and

the state in question must negotiate their own

compromise

The USA s invoked a contiguous zone on 24

Sept 1999


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THE CONTIGUOUS ZONE

Activity Rights of foreign Nationals in the Contiguous Zone

Navigation Full navigation right if compatible with Convention (Art 58,

Paragraph 1, and 87; 58, Paragraph 2 and 88 115 Restricted by

Article 33 (see above) in general only; boarding and search bycoastal state only to prevent and punish infringement of specific

coastal state laws

Removal of historical and archaeological objects only with

approval of coastal state (Art 303, Paragraph 2)

Overflight Full right of overflight

Fishing No right after establishment of exclusive economic zone

(Exceptions: Art 62, Paragraph 2)

Scientific Research Consent of coastal state is required when economic zone has

been established (Art 246)

Laying of Cable Full right (Art 58,79) consent of coastal state for routing required

(Art 79 Paragraph 5)

Mining No right (Right of coastal state over continental shelf need not be

claimed) (Art 76, Paragraph 3)

Observance of

environmental

legislation

Must observe sanitary laws of coastal state (Art 33); must

observe pollution laws (Part XII) applicable in exclusive

economic zone


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GENERAL JURISDICTION FOR THE VESSEL

Within the contiguous zone, the coastal state is

invested with the power

to prevent infringement of its customs, fiscal,

immigration or sanitary laws and regulations withinits territory sea (Article 33, Subparagraph 1(a);

To punish infringement of the above laws and

regulations committed within its territory or

territorial sea (Article 33, Subparagraph 1(b).


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Note: (1) The regulations of the Convention for the prevention ofpollution do not apply to warship and other vessels owned bygovernment and in non-commercial service. However, states are to ensurethat such ships act, as far as reasonable and practicable, in a mannerconsistent with the Convention (Art. 236)

(2) The provisions of the Convention do not affect

- the institution of civil proceedings in respect of any claim for loss ordamage resulting from pollution of the marine environment (Art 229), or

- the right of states to take and enforce measures to avoid pollutionarising from maritime casualties (Art. 221).

STATES - Are obligated to protect and preserve the marineenvironment (Art 192)

- Are to take measures to prevent pollution by vessels (Art. 194,Subparagraph 3(b))


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THE COASTAL STATE

-is sovereign in the territorial sea (Art 2)-has jurisdiction in marine environment matters (Art 56,

Subparagraph 1(b)(iii): Art 192)

-deals with emergencies and safety of operation of

vessels (Art 194, Subparagraph 3(b), but not for

construction, etc, (Art 21, Para 2)

THE FLAG STATE

-has in general jurisdiction and control in administrative,technical, and social matters (Art 94. Para 1)

-Takes pollution measures for emergencies, design, etc. (Art

194, Subparagraph 3(b)

-Must adopt pollution regulations which have at least the

same effect as that of international rules(Art 211, Para 2)

High Seas Port state Enforcement (218) Exclusive jurisdiction (92, (1))

Must ensure at all

times the

compliance with

applicable

international rules

and standard

(Art 217, 194,

Subparagraph 3(b);211)

Effective

enforcement (Art

217, Para 1)

Exclusive

economic

zone

-May adopt laws, giving effect to

generally accepted international rules

and standards (211, (5))

-May adopt special mandatory measures

for clearly defined areas (211, (6), 234)

-Exclusive jurisdiction (58), 87-94) if

compatible with other provisions of

the Convention (See Art 228)

Territorial

Sea

-may in the exercise of its sovereignty

adopt laws which do not hamper

innocent passage (211,(4); 21, (1)(f))

-Not with respect to design construction

etc, (21,(2))

Flag state can enforce physically its

general jurisdiction through coastal

state only (with respect to innocent

passage)

General jurisdiction for the vessel


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Archipelagic

Waters

Sea lane passage

(53; 54; 42, 1(b))

See Art 27 Subparagraph

1(c))

-detain vessels which is not

seaworthy(Art 217, Para 2)

-ensure inspection

(Art 217 Para 3)

-conduct investigations

institute proceedings

(Art 217 Para 4)

-information upon request

(Art 217 Para 5)

-Provide adequate penalties

(art 217 Para 8)

-ensure that masters give

adequate information

(Art 211 Para 3)-air pollution matters

(Art 212 Para 1)

-ensure that masters give

information whether pollution

has occurred

(Art 220 Para 3)

Straits -are to give effect to international

pollution regulations regarding

discharger (Art 42, Subparagraph

1(b))

-further pollution regulations by

special agreement (Art 43,

subparagraph (b)) as Art 207 232not applicable (Art 233)

See above; Territorial Sea

Archipelagic

Sea Lanes

- are to give effect to international

pollution regulations regarding

discharge (Art 42 Subparagraph

1(b), 54)


Inlandwaters ports

These waters are not subject to theConvention


General jurisdiction for the vessel


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ENFORCEMENT

LOCAL LAWS


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GENERAL ENFORCEMENT CONCEPT

ARTICLES 217-220 (ENFORCEMNT): ARTICLES 223-233 (SAFEGUARDS)COASTAL STATE: Rights and Obligations FLAG STATE: Rights and Obligations

General

-Promptly notify flag state of any measures taken and submitreport (Art, 231)

-Minimum standards of proceedings (Art 223

-Enforcement by officials only (Art 224)

-Safety of navigation must not be discriminated (Art 227)

-Liability for unlawful measures (Art 232, 304)

-Release of detained vessels on appropriate security

(Art 220(7), 226(1)(b))

-Ensure compliance of vessels with international law (Art. 217)see: previous layout

-Must be informed (in cases of proceedings from matters in Ts)

and given official report (Art 218-220, 231)

-Must exercise penal jurisdiction and institute investigations (Art

217 (4 8))

Information

- Vessels navigating in TS or EEZ which have possibly

committed violation in EEZ must provide information (Art 220(3))

- Must ensure that vessels give required information (Art 220(4))

Physical Inspection (examination of certificates only; for moreextensive inspection, see Art 226(1)(a))

-Vessels navigating in TS (Art 220(2))

-Vessels navigating in TS or EEZ and substantial discharge in

EEZ and refusal to give information or case justifies inspection

(Art 220(5))

Investigations by port state

- Vessels voluntarily in port and discharge on high seas (elsewhere: onrequest) (Art 218 (3))

- Records on request (Art 218(4))


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Proceedings

-For possible violation by vessels voluntarily in port

(a) violation in TS and EEZ of law in accordance withConvention (Art 220(1))

(b) discharge on high seas and evidence to warrant

proceedings (Art 218(1)) or on request (Art 218(2))

-Vessels navigating in TS and evidence to warrant

proceeding (Art 220(2))

-Vessels navigating in TS or EEZ and major damage

or threat of such in EEZ (220(6))

-Suspension (Art 228)

If violation beyond Ts, proceeding to be suspended if

flag state institutes proceedings unless e.g. major

damage in EEZ

-Port state proceedings (Art 218) to be suspended on

request of affected coastal state (Art 218(4); subject to

Art. 228)

-Right of attendance (Art 223)

Detention

-Vessels navigating in TS and evidence so warrants

-Navigating in TS or EEZ and major damage or threat

of such in EEZ (Art 220(6))

-Violation affecting the seaworthiness of vessels (Art

219, 226(1)(c ))

-Release of vessels (Art 226(1)(b-c); 220(7); 292)

-Prompt notification (Art 226(1)(c ); 231)

Penalties

- Only monetary penalties can be imposed (Art 230)

except in cases of willful and serious act of pollution in

TS (Art 230 (2))

- Suspension in case of violation beyond TS

(see above: Proceeding ) (Art 228)

Maritime casualties

- Take measures (Art 221)

GENERAL ENFORCEMENT CONCEPT


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PORT STATE ENFORCEMENT

1ST

Condition:

Vessels must be voluntarily in port

2nd

Condition:

There must be a violation of applicable international rules and standards

established through the competent international organization or diplomatic

conference

Discharge (as defined by the Convention for the Prevention from Ships (MARPOL), 1973)

means, in relation to harmful substances or effluents containing such substances, any

release howsoever caused from a ship and includes any escape, disposal, spilling, leaking,

pumping, emitting, or emptying . (There exceptions related to dumping, activities in the

Area, and scientific research are not given here)

Abbreviations: TS = Territorial Sea; EEZ = Exclusive Economic Zone.

PROCEEDINGS: Where evidence so warrants


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Location of Violation Location of Damageor Threat of Same Basis for Institutionof Action Suspension

Any place Any place Request of flag state Art. 228

High seas - Rights of port state Art. 228

Internal waters, TS,or EEZ of foreign

state

Affecting the internalwaters, TS or EEZ of

port state

Rights of port state Art. 228

High seas or internal

waters, TS, or EEZ of

any state

In internal waters,

TS, or EEZ of another

state

Request of affected

or threatened state

Art. 218(4)

(Art 228)

Internal waters, TS,

or EEZ of a state

- Request of state

where violation

occurred

Art. 218(4)

(Art 228)


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Any place Any place Request of flagstate Records of

investigation are to

be transmitted to

flag state or state

requesting action

Art 218, Para 4

High seas - Rights of port

state

Internal waters,TS, or EEZ

- Request of statewhere violation

occurred

High seas or

internal waters, TS,

or EEZ of any state

In internal waters,

TS, or EEZ of

another state

Request of

affected or

threatened state

- Internal waters,

TS, or EEZ

Upon request of

affected state

INVESTIGATION: Believed to have occurred in, caused, or threatened damage to


COASTAL STATE ENFORCEMENT


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Location of Vessels Violation Applicable Law Type of charge or facts Measures

Voluntarily in port

(Art 220(1))

TS

EEZ

Laws and regulations of

coastal state

-in accordance

With the Convention

(Art 21 (2)(f); Art

211(4-7); Art 234) or

- applicable

international rules and

standards

Any violation Proceeding

TS (Art

220(2))

TS 1) Clear grounds for belief,

but without prejudice to

right of innocent

2) Where evidence so

warrants

-Physical inspection (Art

226(1)(a)) or

-Further physical

inspection (Art

226(1)(a)(i-iii)

-Proceedings

-Detention

TS or EEZ (Art

220(3))

EEZ International rules and

standards (or national

law conforming with or

giving effect to)

Clear grounds for belief Give information as

listed in Art 220(3)

-Identity

-Registry

-Last port

-Next port

-Information in respect

to incident

TS or EEZ (Art

220(5))

EEZ International rules and

standards (As above)

Clear grounds for belief and

substantial discharge causing or

threatening significant pollution

and vessels has refused to giveinformation supplied obviously

Physical inspection

(Further physical

inspection (Art.

226(1)(a))


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TS

orEEZ

(Art

220(6)

TS

orEEZ

International rules

and standards (Asabove)

Clear objective evidence

and discharge is- causing major damage

- or threat of major

damage to

- coastline or

- resources of TS/ EEZ

andProvided that evidence

so warrants

- Proceeding

- Detention(Release: Art 220(7))

TS

or

EEZ(Art

220(8))

EEZ

(clearly

defined

area)

National law giving

effect to generally

accepted rules (Art211(5))

Applicable in cases of

Art, 220(36)

accordingly

Measures accordingly

(Art 220 (36))


malaysia territorial water 25 march 2013

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