ULUSLARARASI KAMU HUKUKU II

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.

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. Coastal States also have “jurisdiction as provided for in the relevant provisions” of the 1982 UNCLOS with regard to “the establishment and use of artificial islands, installations and structures” as well marine scientific research and the protection and preservation of the marine environment.

States may exercise jurisdiction over foreign ships on the high seas under the principle of “universal jurisdiction”. Leaving aside the fact that this principle has now metamorphosed into a much wider of element international criminal law, it has been generally accepted for a long time that some particular criminals considered to be the enemies of all mankind may well be punished by the authorities of any nation that captured them (Kazemi, 2013: 2). Such crimes include piracy, unauthorized broadcasting, slave trading and drug trafficking. The 1958 HSC (Articles 13 and 14) and the 1982 UNCLOS (Articles 99, 100, 108 and 109) stipulate that all States have not only the right to exercise jurisdiction over such vessels but also the duty to do so.

Finally, the right to hot pursuit entitles coastal States to exercise their jurisdiction on, and even arrest, foreign ships which violated their respective laws and regulations. This right is “designed to ensure that a vessel which has infringed the rules of a coastal state cannot escape punishment by fleeing to the high seas” (Shaw, 2008: 617). But, there are certain conditions as clearly listed in Articles 23 and 111 of the 1958 HSC and the 1982 UNCLOS respectively. First and foremost, a foreign ship must have violated the laws, regulations and rights put into force for the protection of the zone in question. Therefore, the coastal State would have extensive rights on foreign ships in the territorial sea, the pursuit may be commenced within the contiguous zone only if the laws and regulations of the coastal State concerning customs, fiscal, immigration or sanitary issues are violated. Second, the pursuit must be commenced within the zone where the violation took place and may only continue as long as it is not interrupted. Third, in order to commence a hot pursuit, a visual or auditory signal to stop must be given at a distance which enables the foreign ship to see or hear the warning. Fourth, the right of hot pursuit may only be exercised by warships or other duly marked and identifiable governmental vessels of the coastal State that may also use military aircrafts under certain limited conditions. Fifth, the competent authorities of the coastal State should have good reasons to believe that a violation has taken place. In cases where a ship has been stopped or arrested in circumstances which do not justify the exercise of this right, the coastal State would be obliged to compensate for any loss or damage caused. Last but not least, the pursuit would cease as soon as the ship pursued enters the territorial sea of its own State or of a third State (Tanaka, 2012: 163 ff.).

The correct choice is B.

The correct choice is C.

The correct choice is A.

The correct choice is D.

The correct choice is B.

The correct choice is B.

The correct choice is C, "1958".

The correct choice is C, "200 nm".

The correct choice is B, " High seas".

The correct choice is C, "Article 69".

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