ULUSLARARASI KAMU HUKUKU II - Deneme Sınavı - 3

States may also exercise jurisdiction over foreign ships on the high seas under the principle of “universal jurisdiction”.

With its current 174 member States and three associate members, it is regarded as the global standard-setting authority for the safety, security and environmental performance of international shipping.

Turkey has not claimed any contiguous zone in its seas. it has announced a 200 nm EEZ in the Black Sea in 1986. It has also exchanged notes in 1987 with the USSR that constitute an agreement on the delimitation of the maritime zones (i.e., the EEZs and the continental shelves) of the parties. Turkey has not claimed EEZ in the Mediterranean or the Aegean Sea. While there are bilateral agreements signed in between Turkey and the TRNC on one hand and between Greek Administration of Southern Cyprus and Israel and Egypt on the other, a conclusive legal consensus among all coastal States on the delimitation of the maritime zones in the Eastern Mediterranean is still well far from being reached at.

Under normal circumstances, the baseline “is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State” (Article 5, UNCLOS). But, in cases “where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity”, the coastal State may employ “the method of straight baselines joining” appropriate points it selected along the furthest seaward extent of the low-water line (Article 7, UNCLOS).

There is a general consensus regarding the definition of island. According to the definition of Article 10/1 of the 1958 KSBB, which was literally employed by the 1982 UNCLOS (Article 121/1), an island “is a naturally formed area of land, surrounded by water, which is above water at high tide”. Thus, being populated by inhabitants and/or being capable of effective occupation are not necessarily required. On the other hand, geographic formations exposed at low tide but submerged at high tide, artificial formations, man-made platforms and floating formations such as icebergs cannot be deemed as island. So, being a natural area of land surrounded by water, attached to the seabed and also above water at high tide can be regarded as islands (Tanaka, 2012: 63-64).

Archipelago is another notion that was legally introduced and defined eventually by the 1982 UNCLOS. Article 46/2 puts that a group of closely interrelated islands that “form an intrinsic geographical, economic and political entity, or which historically have been regarded as such” form an archipelago.

Some of the activities that render a passage not innocent are: - any exercise or practice with weapons of any kind;- the launching, landing or taking on board of any aircraft; - the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; - any fishing activities.

The exclusive economic zone (EEZ) is an area that extends up to 200 nm from the (straight) baseline that covers not only the body of water, but also the waters superjacent to the seabed, the seabed itself and its subsoil (Articles 55, 56 and 57, UNCLOS). As seen earlier, rocks that cannot sustain human habitation or economic life of their own cannot have EEZ either. It gives coastal States extensive rights (Churchill and Lowe, 1999: 160) that mainly include exploring, exploiting, conserving and managing living and non-living natural resources, as well as other activities such as the production of energy from the water, currents and winds.

The contiguous zone is defined as the maritime zone that is “contiguous to and seaward of the territorial sea” (Churchill and Lowe, 1999: 132). The breadth of this zone “may not extend beyond 24 nautical miles from the baselines” (Article 33/2, UNCLOS). However, it should be noted that this zone actually and effectively comprises the zone lying seaward of the outer limit of the territorial sea. Thus, in cases where a coastal State has a 12- nm territorial sea and declared a 24-nm contiguous zone, its contiguous zone would actually cover the 12 nm stretching in between the outer limits of the two.

In addition to zones subject to sovereignty or sovereign rights of coastal States, there are also marine areas that are equally open to the activities of all States. While the High Seas constitute res communis that can be used by any State in principle, the International Seabed Area is a common heritage of mankind, the resources of which cannot be appropriated by any State individually.

The 1982 UNCLOS strictly defined the “international seabed area” as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”. Therefore, as the national jurisdiction mentioned for these purposes extends to a distance of 200 nm from the (straight) baselines where the EEZ and the continental shelf end under normal circumstances, the international seabed area should be best defined as the area that consists of the seabed and the subsoil that are not subject to the sovereign rights of any State at all.

As “all rights in the resources of the Area are vested in mankind as a whole”, the 1982 UNCLOS established the International Seabed Authority to which all States Parties are ipso facto members. The Authority will organize, carry out and control the activities in the International Seabed Area on behalf of humankind as a whole. It is also expected to take necessary measures for the protection for the marine environment from harmful effects of activities in the International Seabed Area.

The 1982 UNCLOS introduces a detailed dispute settlement mechanism as well. This was basically a result of the complex set of rights given particularly to States with opposite or adjacent coasts. The availability of States that wanted to act unilaterally on one hand and that claimed that the validity of the delimitation is a matter of international law on the other hand has made international disputes unavoidable. Besides, other provisions regarding navigation, marine protection, exploiting the resources of the international seabed area, and so on may also be subject to disputes.

The first four concluded in 1958 at the first United Nations Conference on the Law of the Sea are as follows:

• the Convention on the High Seas that entered into force in 1962

• the Convention on the Territorial Sea and Contiguous Zone that entered into force in 1964;

• the Convention on the Continental Shelf that entered into force in 1964;

• the Convention on Fishing and Conservation of Living Resources of the High Seas that entered into force in 1966.

Second and third conferences, which were convened mostly for unresolved issues such as the breadth of territorial seas and international seabed, lasted for years and the United Nations Convention on the Law of the Sea (hereafter, UNCLOS) was concluded in 1982, and barely entered into force in 1994.

Sea, which is the very foundational concept of the LoS, has not been defined in any international instrument. Nevertheless, what generally referred to as seas are the masses of salty water naturally connected with each other via natural straits, and thus constitute a means of worldwide transportation and communication. Legally speaking, an ocean which is no more than a major body of water in between continents is also considered sea. Therefore, although the parties in an enclosed region might collectively decide the other way depending on their historical usages and/or contemporary interests, bodies of water that are connected to others via rivers are not considered sea. Neither the enclosed lakes that contain freshwater. Such bodies, and the State activities therein, would therefore not fall under the scope of the LoS.

Ships are defined and classified differently according to their purpose of use and ownership in a way that affects their legal status. In most general terms, ships that are used on maritime transportation and that are subject to private (international) law are generally regarded as “trade/merchant ships”. This definition, in principle, includes “public ships” that are “owned or operated by a State and used only on government non-commercial service”. Hence, governmental ships apart from those used for medical, postal or fire-fighting purposes are also subject to rules applicable to trade/merchant ships so long as they are used for trade purposes. That is why the warship definition is of crucial importance.

There is a general consensus regarding the definition of island. According to the definition of Article 10/1 of the 1958 KSBB, which was literally employed by the 1982 UNCLOS (Article 121/1), an island “is a naturally formed area of land, surrounded by water, which is above water at high tide”. Thus, being populated by inhabitants and/or being capable of effective occupation are not necessarily required.

State and court practice suggests that uninhabited and tiny formations that do not have its own economic life, and that are therefore generally called as islets, rocks, carol islands, atolls, reefs and so on are not entitled at least to maritime zones that bring economic rights.

The baseline across a bay cannot be no more than 24 nautical miles (nm) in length, as it would otherwise grant unfair/disproportional area of water to the coastal State.

These considerations rendered it important to determine and codify not only the legal status of the territorial sea but also its breadth. However, the 1958 Convention on the Territorial Sea and Contiguous Zone that in fact made many regulations that could not manage to resolve the breadth question though. Despite ongoing debates, it may be concluded that the 1982 UNCLOS (Article 3) managed to provide a generally acceptable and applicable formula. Accordingly, “every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention” (emphasis added). Therefore, it does not decisively specify that the breadth shall be 12 nm.

The activities that render a passage not innocent are:

- any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

- any exercise or practice with weapons of any kind;

- any act aimed at collecting information to the prejudice of the defense or security of the coastal State;

- any act of propaganda aimed at affecting the defense or security of the coastal State;

- the launching, landing or taking on board of any aircraft;

- the launching, landing or taking on board of any military device;

- the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

- any act of willful and serious pollution contrary to this Convention;

- any fishing activities;

- the carrying out of research or survey activities;

- any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

- any other activity not having a direct bearing on passage.