Coastal and Ocean Law
Fall 2013
Professor Showalter-Otts
UNCLOS
1) United Nations Convention of the Law of the Sea
2) The high seas are a “commons”
a) Territorial sea was 3 nautical miles from shore
i) As far as a cannon can shoot from shore
ii) What a country can control and protect
3) All nations were to have access to the ocean for various uses, no state can claim sovereignty over the ocean
a) Freedom
i) Of navigation
ii) Of overflight
iii) To lay submarine cables and pipelines
iv) Of fishing (subject to the conditions laid down in § 2)
v) Of scientific research (subject to conditions)
b) Freedoms exercised in due regard for the interests of the other states
4) High Seas is all of the oceans except
a) Exclusive economic zone (EEZ)
i) 200 nautical miles out
ii) If every country would claim economic zones to the fullest extent, that would only occupy 40% of the seas.
b) Territorial waters
5) High Seas: a ship is generally immune of jurisdiction
6) Flag-State Control
a) At least some state has responsibility for a vessels’ safety as well as some other protections
i) At least someone is making sure the vessel is safe, the crew is adequately taken care of.
b) If a vessel does not have flag-state control (no nationality) they cannot freely navigate the waters.
i) Piracy, etc.
c) Limitations to granting nationality to a vessel?
i) Back in the day, France decided to recognize the Sultan of Muscat (present day Oman)
ii) Muscat wanted their vessels to sail under French flag
iii) France wouldn’t grant them the flag- the vessels were involved in slave trade
iv) France said in order to fly French flag on vessel:
(1) Must be French subjects
(2) Must own real estate
(3) Captain must be qualified.
v) Court upheld France’s mandates to fly the flag
(1) State has discretion to authorize any vessel to fly its flag
(a) subject to treaty limitations
7) What happens if a flag-state is unwilling or unable to regulate who flies their flag?
a) Today this is called “Flags of Convenience” or “Open registry”
i) Notorious for low standards
(1) Worker safety
(2) Environmental
(3) Etc.
ii) Shipping industry can avoid stricter rules and regs of another country
iii) Common Factors to open registries
(1) Country allows ownership/control of vessels by non-citizens
(2) Access to registry is easy
(3) Taxes on income from ships are not levied locally or are low (usually just an annual fee based on tonnage)
(4) Country of registry is a small power with no national requirement under any foreseeable circumstances for all the shipping registered
(5) Manning of ships by non-nationals frequently permitted
(6) Country of registry has neither the power nor the administrative machinery effectively to impose any gov’t or international regulations
b) Convention’s response to this: Outline additional duties!
i) States must exercise jurisdiction and control
ii) Take steps to ensure safety at sea
iii) International Maritime Organization (IMO) in charge of mandating the international standards
8) Article 91- Ship Safety
a) Must exist a genuine link between the state and the ship
b) Genuine link:
i) Flag-state nationals own ship
ii) Ship manned by flag-state nationals
iii) Flag state nationals involved in management of ship
iv) (Convention that laid out these mandates only has 15 members- unlikely to be highly enforced.)
v) This is similar to US standards for flag-ship control.
9) The Saiga
a) Tanker supplying fuel oil to fishing boats inside Guinea’s 200 mi EEZ but outside the 24mi limit of the contiguous zone (zone which int’l law recognizes the customs authority of coast states)
b) Tanker stopped by Guinean patrol- took vessel & crew to Conarkry, master detained and cargo of fuel oil discharged
c) Guinea claimed supplying fuel violated customs laws; charges brought against master
d) St. Vincent & the Grenadines= flagship country, claimed Guinea overstepped its bounds, guinea said ST&G didn’t have right to claim the ship bc no link between Saiga & SV&G
e) Article 91 (see above)
10) Responsibilities of Flag States
a) Maintain register of all ships containing names & particulars
b) Assume jurisdiction under its internal law over each ship flying its flag & captain & all the crew of the ship
c) Take measures to ensure safety with regard to:
i) Construction, equipment and seaworthiness
ii) Manning of ships, labor conditions and trainings of cres
iii) Use of signals, maintenance of communications and prevention of collisions
d) Measures include:
i) Before registration and at appropriate intervals a survey by qualified surveyor- ship must have adequate charts/navigational equipment to safely navigate ship
ii) Ship is charged with master and officers who know how to navigate, communicate and know marine engineering, and the adequate # of crew members for ship size/m
d the land under them
v NJ’s ownership of submerged land differs from individual rights who owns property at the beach
Ø Trying to insure access v. an individual who would try to exclude access
Ø Non-exclusionary interest is where the idea of a trust came from
Shively v. Boldly
v Private Property ends at the high water mark in most states, but some states granted their residents more rights, allowing them rights to the low water mark
Ø Oregon
§ When Oregon became a state, they awarded land grants for the purposes of building things like warf
v the U.S. Supreme Court recognized the English doctrine of the public trust in tidal waters and that pursuant to the equal footing doctrine, states entering the union would automatically receive land beneath navigable waters below the high water mark.
v the Shively court “specifically recognized that state law determined the scope of the public trust in land beneath navigable waters in this country.” And the SLA “recognizes that state law governs the determination of ownership in the land under the Act.”
Alaska v. US
v Land dispute between parties re: enclaves under the Alexander Archipelago (more than 3 mi from coast of AK or any Islands)
v AK claimed the Archipelago under the Submerged Land Act
v US: at time AK gained statehood, those lands were intended for national monument
v Sp. Ct.: Archipelago waters were not inland waters and thus belonged to the federal gov’t.
Phillips Petroleum Co. v. MS
v Petitioners brought a quiet title action to prevent Mississippi from issuing oil and gas leases for lands several miles north of Mississippi's Gulf Coast. Although the waters over these lands are not navigable, they are adjacent to a navigable stream that flows into the Gulf and are subject to the ebb and flow of the tide.
v The court rules that state ownership of lands subject to the public trust doctrine includes non-navigable tidal lands
v The court holds that the Mississippi Supreme Court correctly held that title to the tidal lands in question passed to the state upon its entrance into the Union.
