MALAYSIA TERRITORIAL WATER

25 March 2013 LAW 719 PM Rohani Mohd Shah

1

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 Continuous Zone 1958 (2) In applying the after said Articles, the expression territorial sea shall be construed as territorial waters

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 baselines determined according with the Convention However there are still some State that can only claim 3nm or less than 12 nm due to their geographical features or other legal reason
3

Internal Waters:
Sea landward of the baseline where the State has full sovereign authority

Territorial Sea: Sea from the

baseline to the 12 mile limit where State has full sovereign authority subject to rights of innocent passage

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) enforced freedom of navigation rights

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 the law of the place to which it goes, Unless by the treaty or otherwise the two countries have come to some different understanding or agreement.

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 belonged to 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.
7

 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.

CONTIGUOUS ZONE

Ancient Times
The right is known as coastal right The inhabitants or rules of a particular sea coast region could assume 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 and income and hoping to increase the numbers of these gifts of the sea, the inhabitants of coastal regions quite often entered into criminal conspiracies with pilots, burned false warning lights and installed false signals and beacons.

10

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
11

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.

12

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.

Platia
13

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

14

THE CONTIGUOUS ZONE

Activity
Navigation

Rights of foreign Nationals in the Contiguous Zone

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 by coastal 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) Full right of overflight

Overflight

Fishing
Scientific Research Laying of Cable Mining Observance of environmental legislation

No right after establishment of exclusive economic zone (Exceptions: Art 62, Paragraph 2)
Consent of coastal state is required when economic zone has been established (Art 246) Full right (Art 58,79) consent of coastal state for routing required (Art 79 Paragraph 5) No right (Right of coastal state over continental shelf need not be claimed) (Art 76, Paragraph 3) Must observe sanitary laws of coastal state (Art 33); must observe pollution laws (Part XII) applicable in exclusive economic zone

15

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 within its 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).

16

 Note: (1) The regulations of the Convention for the prevention of pollution do not apply to warship and other vessels owned by government and in non-commercial service. However, states are to ensure that such ships act, as far as reasonable and practicable, in a manner consistent 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 or damage resulting from pollution of the marine environment (Art 229), or - the right of states to take and enforce measures to avoid pollution arising from maritime casualties (Art. 221). STATES - Are obligated to protect and preserve the marine environment (Art 192) - Are to take measures to prevent pollution by vessels (Art. 194, Subparagraph 3(b))

17

General jurisdiction for the vessel

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 Exclusive economic zone

Port state Enforcement (218) -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 (92, (1)) -Exclusive jurisdiction (58), 87-94) if compatible with other provisions of the Convention (See Art 228) 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)

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)

18

General jurisdiction for the vessel

Archipelagic Waters Straits Sea lane passage (53; 54; 42, 1(b)) -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 207 232 not applicable (Art 233) - are to give effect to international pollution regulations regarding discharge (Art 42 Subparagraph 1(b), 54) These waters are not subject to the Convention See Art 27 Subparagraph 1(c)) See above; Territorial Sea -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)
19

Archipelagic Sea Lanes

See above; Territorial Sea

Inland waters ports

See above; Territorial Sea

ENFORCEMENT
LOCAL LAWS

20

GENERAL ENFORCEMENT CONCEPT ARTICLES 217-220 (ENFORCEMNT):

COASTAL STATE: Rights and Obligations General -Promptly notify flag state of any measures taken and submit report (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))

ARTICLES 223-233 (SAFEGUARDS)

FLAG STATE: Rights and Obligations -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 more extensive 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: on request) (Art 218 (3))

- Records on request (Art 218(4))

21

GENERAL ENFORCEMENT CONCEPT

Proceedings -For possible violation by vessels voluntarily in port (a) violation in TS and EEZ of law in accordance with Convention (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)) 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 )) Penalties - Only monetary penalties can be imposed (Art 230) except in cases of willful and serious act of pollution in TS (Art 230 (2)) Maritime casualties - Take measures (Art 221)
22

-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)

-Release of vessels (Art 226(1)(b-c); 220(7); 292) -Prompt notification (Art 226(1)(c ); 231)

- Suspension in case of violation beyond TS (see above: Proceeding ) (Art 228)

PORT STATE ENFORCEMENT

1ST Vessels must be voluntarily in port Condition: 2nd There must be a violation of applicable international rules and standards Condition: 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

23

PORT STATE ENFORCEMENT

Location of Violation Location of Damage or Threat of Same Any place Affecting the internal waters, TS or EEZ of port state Basis for Institution of Action Request of flag state Rights of port state Rights of port state Suspension Any place High seas Internal waters, TS, or EEZ of foreign state Art. 228 Art. 228 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)

24

PORT STATE ENFORCEMENT

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

Any place

Any place

Request of flag state Rights of port state Request of state where violation occurred Request of affected or threatened state Upon request of affected state

High seas

Internal waters, TS, or EEZ

Records of investigation are to be transmitted to flag state or state requesting action Art 218, Para 4

High seas or In internal waters, internal waters, TS, TS, or EEZ of or EEZ of any state another state Internal waters, TS, or EEZ

25

COASTAL STATE ENFORCEMENT

Location of Vessels Violation Voluntarily in port (Art 220(1)) TS 220(2)) (Art TS EEZ TS Applicable Law 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 Type of charge or facts Any violation Measures Proceeding

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 Give information as listed in Art 220(3) -Identity -Registry -Last port -Next port -Information in respect to incident Physical inspection (Further physical inspection (Art. 26 226(1)(a))

TS or EEZ (Art 220(3))

EEZ

International rules and standards (or national law conforming with or giving effect to)

Clear grounds for belief

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 give information supplied obviously

COASTAL STATE ENFORCEMENT

TS or EEZ (Art 220(6)

TS or EEZ

International rules and standards (As above)

Clear objective evidence - Proceeding and discharge is - Detention - causing major damage (Release: Art 220(7)) - or threat of major damage to - coastline or - resources of TS/ EEZ and Provided that evidence so warrants Applicable in cases of Art, 220(3 6) accordingly Measures accordingly (Art 220 (3 6))

TS or EEZ (Art 220(8))

EEZ (clearly defined area)

National law giving effect to generally accepted rules (Art 211(5))

27