Download Câu hỏi ôn tập môn Law of sea and more Thesis Law in PDF only on Docsity!
Câu hỏi ôn tập môn Law of the Sea
1. Name and give brief analysis for 3 principles of the international law of the sea? There are 3 principles: principle of freedom; principle of sovereignty, and principle of the common heritage of the mankind. *Principle of freedom: ensure the freedom of various uses of the oceans such as navigation, overflight, laying submarine cables and pipelines, marine scientific research, fishing, construction of artificial islands. *Principle of sovereignty: seeks to safeguard the interests of coastal states. It promotes the extension of national jurisdiction into offshore spaces and supports the territorialisation of the oceans. The coastal state has the same rights there as on land. It relates marine space adjacent to coasts subject to the national jurisdiction of the coastal state. *Principle of the common heritage of the mankind: this principle is enshrined in part XI of UNCLOS. First, it seeks to promote the common interest of mankind as a whole. Mankind means the interests of all people in present and future generations. Second, it focuses on mankind as a novel actor in the law of the sea. Mankind has an operational organ (the International Seabed Authority). It also introduces a new perspective, which is beyond state-to-state system. 2. What is the material difference between principle of freedom and principle of sovereignty? The principle of freedom seeks to safeguard the rights of freedom on the sea of all states (including both coastal states and other states) while the principle of sovereignty only seeks to protect the interests of coastal states to exercise their sovereignty over internal waters and territorial seas and their sovereign rights over the contiguous zone, EEZ, and continental shelf. 3. What makes principle of the common heritage of mankind different from the other principles? First, while the principle of freedom and sovereignty aim to safeguard the interest of individual states, the principle of the common heritage of mankind seeks to promote the common interests of mankind as a whole. Second, the principle of the common heritage of mankind introduces a new
perspective which is beyond state-to-state system. The mankind has an operationl organ, which is the Int’ Seabed Authority which acts on behalf of all mankind as a whole.
4. Principle of freedom gives states right to claim sovereignty over parts of the high seas. Right or wrong and why? Wrong. The principle of freedom in high seas has two meanings: (1) The high seas are free from national jurisdiction. Art 89 unclos states “No states can validly purport to subject any part of the high seas to its sovereignty”. (2) States have freedom of activities in the high seas in accordance with int’ law. Art 87.1 unclos, these activities include: freedom of navigation, overflight, laying submarine cables and pipelines, construction of artificial islands, fishing and marine scientific research. Therefore, no sovereignty can be claimed under the principle of freedom over parts of the high seas. 5. Under Principle of freedom, all states have freedom of navigation (lưu thông) through all marine spaces. Right or wrong and why? Wrong. States have freedom of navigation only in territorial seas (the right of innocent passage), contiguous zone, EEZ, continental shelf and the high seas. In the internal waters, other states do not have freedom of navigation because coastal states have absolute soverengity authority over the internal waters. Foregin vessels wishing to enter internal waters must ask the coastal states for permission first. In the territorial seas, coastal states only have partial authority so foreign vessels can enjoy the freedom of navigation through the right of innocent passage. The contiguous zone, EEZ and continental shelf do not belong the sovereignty of coastal states. In these three maritime zones, coastal states only have sovereign rights to conduct several activities so foreign vessels can enjoy the freedom of navigation. The high sea is beyond national jurisdiction of coastal states so foreign ships can enjoy freedoom of navigation in the high seas. 6. Principle of sovereignty only protects coastal states’ interests. Right or wrong and why? Right. Because the principle of sovereignty seeks to safeguard the interests of coastal states. It promotes the extension of national jurisdiction of coastal states into offshore spaces and supports the territorialisation of the oceans.
There is no specific definition of sovereign rights in international treaties. However, it can be defined that “Sovereign rights” represent the rights that a coastal state enjoys basing on its sovereignty over all kinds of resources in its economic exclusive zone and continental shelf, as well as the exploring, exploiting in its economic exclusive zone and continental shelf for economic purpose, including the production of energy from water, ocean currents and wind, etc. => Đọc thêm: Jurisdiction is the private right of coastal states in making decision, regulations and supervising the enforcement of them. Jurisdiction of a state can be conducted where the state doesn’t have its sovereignty and sovereign rights, such as jurisdiction can be conducted on board of the vessel flying its flag while the vessel is being operated in the maritime zones under sovereignty or sovereign rights of the other states. Sovereign right stems from sovereignty while jurisdiction derives from sovereign right which assists and makes it easier for the exercise of sovereign right.
11. Compare “sovereign rights” with “sovereignty”? Sovereignty means the supreme authority of the coastal State over the internal waters and territorial seas. Coastal states can make laws and regulations and impose them within the marine spaces of internal waters and territorial seas. While, sovereign rights stem from sovereignty but with limited rights and powers. Sovereign right represents the rights that a coastal state enjoys basing on its sovereignty over all kinds of resources in its economic exclusive zone and continental shelf, as well as the exploring, exploiting in its economic exclusive zone and continental shelf for economic purpose, including the production of energy from water, ocean currents and wind, etc. 12. What is the difference between legal status of internal waters and that of territorial sea? *Internal waters: _Coastal states enjoy full sovereignty. _Other states: when enter into internal waters must ask for prior permissions from coastal states. *Territorial seas: _Coastal states: have relative sovereignty.
_Other states: have the right of innocent passage but should go continuously, expeditiously and submarines or underwater vehicles must sail on the surface and fly their flag.
13. Why coastal States’ sovereignty over the territorial sea is restricted by the right of innocent passage for foreign vessels? Territorial sovereignty in international law is characterized by completeness and exclusiveness. Coastal State can exercise complete legislative and enforcement jurisdiction over all matters and all people in an exclusive matter unless international law provides otherwise. Art 2.3 UNCLOS states that sovereignty over territorial sea is subject to the Convention and to other rules of international law. The right of innocent passage in territorial seas is based on the freedom of navigation as an essential means to accomplish freedom of trade. The act of inoffensively passing over without any violence committed there is not considered as any violation of the territory. Therefore, the sovereignty of coastal state over the territorial sea is limited by conditions established by int’ law and indeed it is precisely because the freeedom of navigation is of such great importance to all states that the right of innocent passage through the territorial sea is generally recognised. 14. What are criteria for drawing straight baselines? There are 3 criteria (Art 7 UNCLOS): (1) The drawing of straight baseline must not depart to any appreciable extent from the general direction of the coast. (2) The sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. (3) Certain economic interest peculiar to a region, the reality and importance of which is clearly evidenced by long usage, should be taken into consideration. 15. What sovereign rights of the coastal state in the EEZ? A coastal State has the exclusive right to exploit or conserve any resources found within the water, on the sea floor, or under the sea floor’s subsoil. These resources encompass both living resources, such as fish, and non-living resources, such as oil and natural gas (art 56 unclos). States also have exclusive rights to engage in offshore energy generation from the waves, currents, and wind within
19. Internal waters of a coastal state have the breadth of 6 nm from the coast to the baselines? This statement is false. Because the width of the internal water is measured by the coast on one side and the national baselines on the other side. The baselines can be drawn along the coast determined by the low water line or the baselines can be drawn across the water connecting the furthest seaward points of the coast and the outermost points of offshore islands. Therefore there is no exact breadth of the internal waters. 20. The territorial sea of a coastal state has the breadth of 12 nm from the baselines to its outer limit? False. The territorial sea is up to a limit of not exceeding 12nm measured from the baseline. Coastal states can choose the breadth of the territorial sea but it must not be beyond 12nm. So there is no fixed breath for the territorial sea. 21. Coastal States can stop foreign vessels when passing through their territorial sea whenever they want. Right or wrong and why? Wrong. Article 24 unclos states prohibits coastal states to hamper the innocent passage of foreign vessels in the territorial sea unless specifically authorized by other articles of unclos. Article 28 unclos states the coastal states should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising jurisdiction in relation to a person on board the ship. However, there are still opinions on this statement because the unclos uses the term “should not” which means it is a suggestion but not a prohibition, which means for some opinions, coastal states can stop foreign vessels passing through their territorial sea. 22. The contiguous zone is actually a part of the exclusive economic zone. Right or wrong and why? Wrong. The contiguous zone is a part of EEZ only when coastal states claim the zone. If coastal states do not claim the EEZ, the contiguous zone is part of the high seas. 23. Which method of baseline determination applied is dependent on the choice of the coastal country. Right or wrong and why? Right. Art 7.1 unclos states that whether the coastline is complicated, coastal states may apply the straight baselines method. This is permissive, so coastal states can choose whether or not to apply
the method of straight baselines when the coastlines meet the conditions provided in the Article 7.1 of unclos. Article 14 unclos also mention that coastal states can combine different methods when determining baselines.
24. Within its territorial waters, a coastal state may not conduct any activity that affects the "right of innocent passage" of foreign vessels. Right or wrong and why? Wrong. First, Art 22.1 unclos states that coastal states can require foreign vessels exercising innocent passage to use such sea lanes and traffic schemes as designate or prescribe and the sea lanes and traffic schemes must be published. Even tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials may be required to confine their passage to such sea lanes (article 22.3). Second, Art 25.3 unclos: coastal states can suspend the innocent passage of foreign vessels under five conditions: (1) for the protection of security; (2) temporal; (3) limited to specific areas of territorial seas; (4) withouth discrimination; (5) only take effect after having published. Also, if the foreign vessels passing through the territorial sea violating laws and regulations of coastal states, coastal states can 25. The coastal topography is the deciding factor for the method of determining the baseline of the coastal country. Right or wrong and why? Right. If the coastline is straight, flat, and even so that the low water line can be clearly expressed, the method of normal baselines will be used. However, if the coastline is deeply indented or cut into, fringe of islands or the low water-line is not clearly expressed then the method of straight baselines may be used. 26. The legal regulations of territorial sea under the provisions of UNCLOS 1982 and those of the Law of the Sea of Vietnam 2012 are the same. Right or wrong and why? Wrong. Art 17 UNCLOS states that “Subject to this Convention, ships of all states, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea”. UNCLOS permits the innocent passage for all ships, including foreign warships which means foreign warships enjoy freedom of navigation through the territorial sea without prior notification to the coastal states. However, Article 12.2 of the Law of the Sea of Vietnam indicates that “foreign military vessels
33. The continental shelf of all coastal states has a maximum width of 350 nautical miles. Right or wrong and why? Wrong. In case the continental margin does not exceed 200nm then the width of the continental shelf is 200nm. In case the continental margin reaches more than 200nm then the width of the continental shelf can be in two ways: (i) not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or (ii) not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres (Art 76 unclos). 34. The right of "innocent passage" is a maritime right and applies in all maritime zones under the provisions of UNCLOS. Right or wrong and why? Wrong. The right of innocent passage does not apply to internal water because coastal states have full sovereignty over the internal waters. The right of innocent passage applies to territorial seas, contiguous zone, EEZ, continental shelf. 35. In the EEZ, the coastal state has sovereignty over all marine activities. Right or wrong and why? Wrong. Art 56.1 unclos: In the EEZ, coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds. So not all marine activities but only those listed in Art 56 can be done by the coastal state in the eez. 36. UNCLOS divides entities into how many categories? Name them? UNCLOS divides entities into 4 categories: island, rock, low – tide elevation, and artificial island. 37. Distinguish island, rock and low-tide elevation? Islands Rocks Artificial islands Naturally formed Naturally formed Not naturally formed
Must sustain human habitation or economic life of their own Cannot sustain human habitation or economic life of their own May sustain human habitation or economic life of their own Same maritime zones as landmasses including territorial seas, contiguous zone, EEZ and continental shelf. Have no EEZ and continental shelf. Have no maritime zone but a 500 meters safety zone.
38. What are the different legal status of island and that of artificial island? Islands Artificial islands Naturally formed Not naturally formed Must sustain human habitation or economic life of their own May sustain human habitation or economic life of their own Same maritime zones as landmasses including territorial seas, contiguous zone, EEZ and continental shelf. Have no maritime zone but a 500 meters safety zone. 39. The legal status of Internal waters and that of Archipelagic water is the same. Right or wrong and why? This statement is wrong: (1) The right of innocent passage applies to Archipelagic waters (Art 52.1 UNCLOS), while this right does not apply to Internal waters. The right of inncoent passage in archipelagic waters is the same as that in territorial sea. Art 52.2 allows archipelagic states to suspend temporarily the right of innocent passage to archipelagic waters when the suspension is essential for the protection of
43. Which subjects have the right to conduct marine scientific research? Art. 238 UNCLOS: all states (even landlocked, geograpichally disadvantaged and non-member unclos states) and competent int’ organizations that can conduct marine scientific research. 44. What are general principles for the conduct of marine scientific research? Art 240 unclos: the principle of peaceful purposes, use of appropriate scientific methods, non- interference with other legitimate uses of the sea and comply with all relevant regulations of unclos 45. What are the differences between marine scientific research in marine spaces under and beyond national jurisdiction? Under national jurisdiction Beyond national jurisdiction _Territorial sovereignty (internal and territorial waters), coastal states have decisive powers over marine scientific research => the research is required express consent of coastal state. _Sovereign rights: the research still needs the consent of coastal states in normal circumstances must grant their consent to the research project which are exclusively for peaceful purposes, increase scientific knowledge of the marine environment for the benefit of all mankind (art 246.3) _Art 246.5: coastal states can withhold their consent if the research falls within 4 cases. These four cases do not apply to the continental shelf beyond 200nm. Coastal states can establish specific areas and within these specific areas, coastal states can withhold the consent on their own (art 246.6). _High seas: All states have freedom to conduct marine scientific research. _Area: All states and competent int’ org conduct the research in conformity with part 13 => carried out with peaceful purposes for the benefit of mankind
46. How many types of marine pollution? There are 4 types of marine pollution: pollution from land-based, pollution from vessel-source sources, dumping at sea, and pollution from seabed activities. 47. Present Pollution from land-based. Land-based marine polltion is a result of the imbalance btw human populations and industrial activities and the limited capacity of the marine environment to absorb the wastes we produce. Land-based sources vary, including municipal, industrial or agricultural sources both fixed and mobile, discharges from which reach the marine environment: (i) from the coast, including from outfalls discharging directly into the marine environment and through run-off; (ii) through rivers, canals or other watercourses; (iii) via the atmosphere. Pollutants from land-based activities include sewage, industrial discharges and agricultural run-off. Land-based pollution to the marine environment is a serious one since it mainly affects coastal waters, which are sites of high biological productivity. 48. Present Pollution from seabed activities. Marine pollution can be cause from the seabed operations such as oil exploitation (drilling) because drilling because it produces drilling muds which contain toxic pollutants such as hydrocacbon and other heavy metals. These pollutants and metals affect the marine environment. 49. Present Pollution from dumping.
- Article 1.1.5.a UNCLOS defines dumping as: (i) any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man- made structures at sea; (ii) any deliberate disposal of vessels, aircraft, platforms.
- Article 1.1.5.b UNCLOS states that dumping does not include: (i) the disposal of wastes or other matter incidental to, or derived from the normal operations of vessels, aircraft, platforms or other man-made structures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms or other man-made structures
*Specific rights and obligations
- Coastal States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment (Art 193 unclos).
- Coastal States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures (Pollution from land-based sources, Art 207.1 unclos).
- Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations shall not hamper innocent passage of foreign vessels (Pollution from vessels, Art 211.4 unclos).
- Coastal States may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference (Art 211.5 unclos).
- Where there is clear evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has committed a violation resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that coastal State mayinstitute proceedings, including detention of the vessel. (Art 220 unclos). 52. Why do states need maritime delimitation? Maritime delimitation means the process of establising lines separating the spatial ambit of coastal states jurisdiction over martitime space where the legal title overlaps with that of another state. (1) between two or more states and (2) separate overlapping areas. This is different from maritime limits cos maritime limits (1) single state and (2) over spaces that are not in contact with those of another state. => Delimitation only happens between states. No int’ organizations and int’ seabed authority are not subject of maritime delimitation.
=> its object is to seperate overlapping spaces where states attempt to exercise spatial jurisdiction over the same space => requires agreement between relevant states.
53. Present Principles of maritime delimitation. The principles of maritime delimitation include equity and equitable principles. The notion of equity is in the Heart of the delimitation of the continental shelf and came in the delimitation process with the 1945 proclamation of US President Truman. However, the problem with the idea of equity is that it does not provide any precise principle or criteria for the achievement of an equitable result. Art 74 and 83 of UNCLOS concerning the EEZ and the Continental shelf provides for effecting the delimitation by agreement in order to achieve an equitable result but say nothing about the principles, necessary to achieve an equitable result. At present it is impossiblee to produce a structured system of equity and a clear body of equitable principle because each case is unicum, which means geographical features of each delimitation case varied greatly that it is not possible to posit fixed principles. 54. Present relevant circumstances which should be considerated in maritime delimitation? There are two types of relevant circmstances that should be considerated in maritime delimitation: (1) geographical factors; (2) non geographical factors. *Geographical factors include configuration of coasts; proportionality; baseline; presence of islands; geological and geomorphological factors; presence of third state. *Non geographical factors include economic factors; conduct of the parties; historic title and historic rights; security interests; navigational factors; environmental factors. => Đọc giáo trình của tác giả Yoshifumi Tanaka (Third edition) từ trang 250 đến 267 hoặc giáo trình Luật biển ĐH Luật Hà Nội (2019) từ trang 233 đến trang 248. 55. What are the rules concerning maritime delimitation? Three rules: [1] conducted through agreements [2] related parties may agree to either choose the form of negotiation for mutual delimitation of the sea or select a third party (int court or arbitration) to delimit the maritime areas.
_Final and binding _Only valid for disputing parties _If there’s dispute about the meaning and scope of the judgment => itlos has the responsibility to explain at the request of the party.
61. What are the differences between Arbitration (Annex VII) and Special arbitration (VIII)? Arbitration VII applies for disputes arising in connection with the provisions of the Convention as a whole (Annex VII Art 1). Arbitration VIII is restricted to specific categories of disputes, namely fisheries, protection and preservation of the marine environment, marine scientific research and navigation, pollution from vessels and by dumping (Annex VIII Art 1) 62. Distinguish between “maritime delimitation” and “maritime limit”? Maritime delimitation Maritime limit Between two or more States Single State Separate overlapping marine spaces Limit marine spaces that are not in contact with those of another State Based on consent of relevant States Unilateral act 63. Which maritime zones in Vietnam have not been demarcated? The martitime zones btw Vietnam and Cambodia have not yet been demarcated. In the agreement of 1982 the “historic waters” were defined as being located between the coast of Kien Giang Province, Phu Quoc Island and Tho Chu island on the Vietnamese side and the coast of Kampot Province and Poulo Wai island on the Cambodian side. The agreement stipulated that the two countries would hold, “at a suitable time”, negotiations to determine the maritime frontier in the “historic waters”. Pending such a settlement the two countries would continue to regard the Brévié Line drawn in 1939 as the dividing line for the islands within the “historic waters”. In 1999, Vietnam suggests the median line map so that both countries can use this line to deliminate the
maritime zones but Cambodia didn’t agree with this suggestion and didn’t offer any solutions. And up to now, the maritime zones delimitation btw VN and Cambodia is still in question.
