Chapter 8 Guidance on Answering the Questions in the Book

Question 1:
Can you come up with some examples of where the interests of a coastal state collide with the interests of other states?

Guidance:
The question asks the student to engage with the balance inherent in the law of the sea between the needs and sovereign concerns of coastal states and the interest of other states that somehow wish to enjoy the benefits of the seas or reap its benefits. The students should identify some examples of where the interests collide. The book notes in the introduction of Chapter 8 that the different interests between coastal states and other states is reflected in the spatial partitioning of the sea into the various jurisdictional zones. It also notes that the ‘zonal system’ revolves around an understanding that the rights of coastal states decrease the further away one moves from the shore. A concrete example is the interests of a costal state to exercise its jurisdiction over ships located in the vicinity of its coasts and the interests of other states to be able to traverse such waters without interference from coastal states. Other examples should be identified by the students.

Question 2:
Which actors are deemed to have a legitimate interest in the regulation of the seas?

Guidance:
The question encourages students to consider the many different actors with an interest in how the seas are regulated in international law. As already noted in Question 1, a substantial part of the regulation is aimed at balancing the rights of coastal states with other states that has an interest in the seas. In practice, of course, everybody can be deemed to have legitimate interests in the regulation of the seas and this is reflected in certain parts of the law. For example, the high seas are res communis and thus an area of the seas that are “open” to all states and beyond the sovereignty and jurisdiction of any state. Another example is that of the deep seabed – also known as “The Area” – that is classified as ‘common heritage of mankind’. Here, the relevant regulation is based on an underlying premise that no state can claim or exercise sovereignty or sovereign rights over the Area and that all exploitation must be carried out for the benefit of all.

Question 3:
What is the difference between internal waters and territorial waters? To what extent does the regulation of the two zones differ?

Guidance:
The question asks the students to distinguish between the territorial sea and internal waters and consider the ways in which the regulation of these waters differs. The book notes that the territorial waters/sea is a belt of the sea that runs adjacent to the coast at a maximum breadth of 12 nautical miles when measured from the baseline. Internal waters, on the other hand, is the water located on the landward side of a straight baseline from which the territorial sea is measured as well as water on the landward side of an enclosed bay. The primary difference between the regulation of territorial waters and internal waters is that foreign vessels do not possess a right of “innocent passage” (see more in Question 4) in internal waters. This, however, does not apply to the internal waters on the landward side of a straight baseline. The book notes that special rules apply to the internal waters in archipelagic states where innocent passage must be allowed, in practice on the basis of certain sea lanes designated by the archipelagic state.

Question 4:
What is the difference between the right of innocent passage and the right of transit passage?

Guidance:
The question concerns the distinction between innocent passage and transit passage. The book notes that the right of innocent passage entails a right for a foreign vessel to traverse the territorial sea of another state without entering the internal waters or a port facility within the territorial sea. As the book notes, ‘passage’ requires that the operation is ‘continuous and expedited’. To be ‘innocent’, the passage must not be ‘prejudicial to the peace, good order or security of the coastal State’. The right of transit passage is relevant for passage in international straits and the key difference between transit passage and innocent passage through the territorial seas is that transit passage cannot be suspended by a coastal state. The difference in regulation is due to the importance international straits play for the free flow of international communication and trade.

Question 5:
What is the difference between an ‘island’ and a ‘rock’? Does it matter?

Guidance:
This question asks the students to engage with the important distinction between islands and rocks. An ‘island’ is a ‘naturally formed area of land, surrounded by water, which is above water at high tide’ and able to ‘sustain human habitation or economic life’ of its own. If it is not so able, it is classified as a “rock”. The classification is important because only islands possess an EEZ and a continental shelf. Rocks, on the other hand, only have a territorial sea and a contiguous zone. With regard to the requirement of an ability to sustain human habitation or economic life, the book refers to the recent South China Sea Arbitration. Among other things, the arbitration tribunal concluded that the legal status of a feature takes its departure point as the natural condition and not the man-made alterations or installations.

Question 6:
Which principles govern the delimitation of overlapping continental shelves?

Guidance:
The question engages the students in the issue of delimitation of various overlapping zones or, more precisely, overlapping continental shelves. The book notes that the LOSC’s approach to de-limitation differs from zone to zone but that overlapping claims to the continental shelf are solved on the basis of an ‘equitable solution’. The book also notes that the practical application of the principle has been uneven but that the case law seems to have settled on the so-called ‘equidistance/relevant circumstances test’ that is consists of a three-staged approach. The first step is to identify the provisional line of equidistance and the second phase consists of determining if there are circumstances that require an adjustment of the equidistance line in order to reach an equitable result. The third stage consists of adopting a proportionality assessment that seeks to verify if the delimitation line leads to an inequitable result.

Question 7:
Why is the zonal system a less than ideal system for conserving marine life? What approach does international law adopt towards the system?

Guidance:
The question asks the students to consider the different regulatory approaches in the law of the sea. As the book notes, not all concerns and interests can be dealt with in a satisfactory manner on the basis of the spatial division of the sea into various jurisdictional zones. The law of the sea therefore also seeks to facilitate international cooperation on matters of concern to all states, such as the preservation of marine life. The book notes that the spatial division of the sea is particularly ill-suited to deal with conservation of migratory species of marine life and that the primary approach to conservation therefore is to tailor the regulation around the needs of the individual species of marine life. The book also offers a range of examples of such regulation. Reference could also be made to the discussion of whaling. 

Question 8:
What are some of the challenges of limiting marine pollution?

Guidance:
The question concerns the issue of marine pollution and asks the students to consider the limitations of the existing approach. At the outset it is worth noting that the LOSC brought much needed attention to the issue and generally shifted the direction of the regulation from an overall freedom to pollute to an obligation to prevent pollution. It may also be noted that the substantive regulation for the protection of the marine environment focuses on the concrete source of the pollution. The book notes that the biggest source of pollution stems from land-based sources and that the efforts to limit this form of pollution are impeded by the link between the pollution and economic and industrial growth.