LAW OF THE SEA ISSUES AND COMPLIANCE IN RSGA
Question one: Key Law of the Sea Terms
The United Nations Convention on Laws of the Sea (UNCLOS) is otherwise known as the Law of the Sea Treaty. The Treaty was effected on the 16th of November 1982 (Sharda 2019). The convention was formed as an assurity that states had the freedom to navigate their ships at the sea. The main aim was to allow ships of a country to move freely and safely in international waters (Hiteshk 2019). Under the UNCLOS, the law of the sea has five key terms (Hiteshk 2019). They are territorial sea, contiguous zone, exclusive economic zone, continental shelf, and high sea. These terms are applicable in the Red Sea and Gulf of Aden.
The Red Sea and Gulf of Aden cover a large surface area. The Red Sea, for instance, has a surface area of 438,000 km2; it is roughly 360km from east to west and 1,930km from north to south (UNEP). The Gulf of Aden has a surface area of 410,000 km2 and approximately 350km from north to south, and 1,260km from east to west (UNEP, cited in PERSGA 2006). Several states use the Red Sea and Gulf of Aden for navigation to and from international states, hence the establishment of the Regional Organization for the Conservation of the Environment of the Red Sea and Gulf of Aden (PERSGA).
Territorial Sea
UNCLOS took note of the territory sea. The convention defined the territorial sea as the area that extends to 12 maritime miles from the baseline of a country’s coastal area (Hiteshk 2019). Territorial sea consists of the air space, the adjacent water bodies, and the seabed (Tanaka). Ships from other countries are allowed to pass through the particular country’s coast but it retains the jurisdiction of the territorial sea. The passage of international ships through a country’s territorial sea is referred to as the innocent passage (Hiteshk 2019). The coastal state has the mandate to revoke the innocent passage for several reasons. For instance, if the coastal state suspects that there is a threat to its security, and smuggling of drugs (Hiteshk 2019). The Red Sea and the Gulf of Aden pass through several countries, for instance, Sudan, Egypt, Eritrea, Djibouti, Yemen, and Saudi Arabia hence their territorial sea is divided among these countries, they claim a 12nm breadth.
Coastal states that have the territorial sea have the ability to question any suspicious activity on its territory. The process starts with the coastal state informing the ship of the reason that may suspend their passage in their territory. The ship is given a chance to either clarify the position, in case of a mistake on the part of the coastal state, or if they are on the wrong, to correct the problem in a short period (Tanaka). The rights of the coastal state concerning the innocent passage are found in Article 21, 22, and 25 of the Law of the Sea Convention. The articles state that foreign ships should use sea lanes and traffic separation schemes as prescribed by the coastal state. The coastal state is also required to prevent illegal passage on its territorial waters. The states are required to ensure that the prevention of innocent passage is not discriminatory in any shape or form, and conforms to the Law of the Sea Convention.
Continental Shelf
A coastal state retains the right to exploit the natural resources in its continental shelf. The continental shelf refers to the area on the outer limit that does not exceed 350 marine miles from the baseline; it also does not exceed 100 nautical miles from the 2500 metres isobaths (Hiteshk 2019). UNCLOS stated that a country’s continental shelf extends to the country’s shoreline and it is considered part of that country’s territory (The Editors of Encyclopaedia Britannica). Coastal states whose continental shelves extend beyond 200 nautical miles from their shorelines are required to submit a claim over the extended shelf; the law changed after the ratification of UNCLOS. The Red Sea has two continental shelves, the Sudan shelf located along the African coast, and the Jiddah shelf along the Arabian coast.
Contiguous Zone
The contiguous zone does not exist automatically like territorial seas; it has to be claimed. The zone extends 12 nautical miles from the baseline, beyond the territorial sea (Hiteshk 2019). The states are allowed to control the shoreline; the states can punish any infringements on their territorial seas. The 1982 Treaty allowed the states to explore and exploit the natural resources of their zones, to control scientific research, and preserve the marine environment (Shaw). Djibouti, Egypt, and Yemen claim zones out of 24nm; Saudi Arabia and Sudan claim 18nm from their baselines (Dzurek & Schofield 2001). All these states claimed their zones.
Exclusive Economic Zone
The exclusive economic zone includes the contiguous zone and the territorial sea. The zone can be defined as a belt of water that extends to 200 nautical miles from the baseline. The coastal zones gain control of marine research, fishing, and any other economic activities on the shoreline (Hiteshk 2019). The state gets the jurisdiction to protect and preserve the marine environment. Like the contiguous zone, this zone should also be claimed. Djibouti, Egypt and Yemen have claimed these zones, like they did on their continental shelf jurisdiction.
High Seas
They are not part of the other terms of the law of the sea. They are not included in either the territorial sea or the exclusive economic zone, and they are open to any state. International states have the freedom to fish, conduct scientific research, and navigation (Hiteshk 2019). The foreign ships also have access to the ports in the coastal states, otherwise known as port state control. The right was not initially available in the Law of the Sea, but a treaty was passed in 1923, referred to as the Convention on the International Regime of Marine Ports. The other terms did not allow access to the ports due to security issues. The foreign vessels had to meet certain parameters before they got access to the coastal states’ ports. The only available limitation is drug and human trafficking, and piracy.
Question Two: Right of Innocent Passage
The right of innocent passage refers to the passage of international ships through the territorial sea of a coastal state. The passage is judged not on the type of ship, but the manner in which the passage was carried out. Articles 21, 22, and 25 of the Law of the Sea Convention list the rights of the coastal states concerning innocent passage. Passage is deemed innocent if it is not prejudicial to the security and peace of the coastal state. The ships are not allowed to stop or anchor in the coastal state, except in force majeure situations. Coastal states’ right of innocent passage does not, however, include overflight by foreign planes. Article 19 of the UNCLOS lists the different activities that result in non-innocent passage. Coastal states are challenged whenever they have to establish whether a ship is involved non-innocent passage.
Coastal states have legislative jurisdiction concerning innocent passage over their territorial seas. For instance, regulation of maritime traffic, protection of navigational facilities and installations, and protection of the pipelines. They also have the right to protect the living creatures of the sea, and prevent any infringement of the coastal state laws (Tanaka 2015). With regard to prior notification, the coastal states require that vessels carrying armed personnel should provide the maritime authority with prior notification to avoid revocation of their innocent passage (Williams 2014). Debates concerning carrying of arms through passages are several hence prior notification was required to reduce the number of debates.
Under Article 25 of the UNCLOS, coastal states have the power to suspend innocent passage of foreign ships under five conditions. For instance, suspension must be vital for the protection of the state, temporal, without discrimination, limited to specific areas, and shall take effect once published (Tanaka 2015). Ultimately, coastal states have to protect the security of the state and their territorial sea. However, foreign vessels through straits cannot have their innocent passage suspended if they are used for international movement between different high seas (Tanaka 2015). The coastal states have exclusive jurisdiction over their territorial seas, as well as the innocent passage.
Concerning the application of the right of innocent passage on Bab-el-Mandeb Strait, the truth is that Yemen does benefit from the navigation of international vessels on its territorial sea. The Strait was internationalized without the consent of Yemen nationals hence the state lacks the sovereignty of its own territory (Sabri 2017). In general, the Strait is located in Yemen’s territorial sea and other states have the right of innocent passage, except in force majeure cases. Yemen has had to surrender its sovereignty over its own territorial waters and it does not benefit the state as it should.
In essence, Yemen is strategically located hence the state should be at a better economic standing due to maritime freedom. Other states are benefitting from the decision that was passed in the 1982 UN Convention hence the Strait is governed by International law (Sabri 2017). The neighbouring nations have also not signed any agreement that allows the passage of foreign vessels through Bab-el-Mandeb Strait. Saudi Arabia has benefitted more from the not-so-innocent passage through Yemen territorial waters. The aggression and war in Yemen was orchestrated to gain access to its territorial waters (Sabri 2017). Yemen was, however, given the chance to close the strait and inspect foreign vessels that passed through its territorial waters. Ultimately, other states are benefitting from the Bab el-Mandeb Strait because of its strategic location, yet Yemen nationals do not have much to say to change the situation.
Question 3: The Suez Canal
Located in Egypt, the Suez Canal is a sea-level waterway that connected the Mediterranean Sea with the north part of the Red Sea, the Gulf of Suez. The canal separates the continent of Africa from the continent of Asia. The waterway has been vital to international trade because it offers a direct shipping route between Europe and the lands around the Indian Ocean and Pacific Ocean (Fisher & Smith). The canal is 120 miles long and was completed in 1869. In the first year of operation, there were 486 trips through the canal to different parts of the world (Fisher & Smith). In 2015, Egypt expanded and deepened parts of the canal. Since then, there have been several wars for control of the canal by different states.
The Suez Canal was constructed took ten years. The canal was constructed by the Suez Canal Company and the Suez Canal owns the rights to control and maintain the waterway (Mohit 2019). The expansion and deepening of the canal ensured that it could accommodate traffic both ways and had the capability of navigating larger ships. For instance, in December 2017, the world’s largest ship from Hong Kong, the 400-metre long OOCL, passed through the canal carrying 21,400 containers on board (Mohit 2019). Egypt’s economy has immensely improved since the construction and eventual expansion of the Suez Canal; it generated billions in revenues after the expansion.
The control of the Suez Canal has changed hands over the years. Initially, the Universal Suez Ship Canal Company began the construction and gained control of operations for the next 99 years, after which the government would claim control of the canal. During construction, the use of forced labour was abolished hence the construction company had to use steam and coal powered shovels to complete the construction. The construction budget was doubled at completion hence Egypt faced tough economic times during the initial years. The British government took advantage of Egypt’s financial constraints and bought stakes owned by the Egyptian government in 1875, deeming the state the largest shareholder in the Suez Canal Company (Mohit 2019). The British government needed the canal as an easier route to its then colonies.
Egypt was invaded by the British and the French after it became bankrupt. The British government invaded Egypt at some point, but granted the state independence in 1922 (Mohit 2019). In 1956, the Suez crisis started when the President closed the Straits of Tiran and nationalized the canal (Mohit 2019). Afterward, the United Kingdom, Israel and France invaded Suez to reclaim possession of the Canal. The United Nations helped with the eviction of the invading states and the subsequent opening of the canal. Egypt has been in constant disagreements with several states since then, but it has remained open and in the control of the Egypt government.
The Law of the Sea played a vital role in solving the crisis that the Suez Canal faced when different states fought for its control. The Law of the Sea provided six principles that Egypt relied on as legal controls that were similar to the principles of the right of innocent passage. For instance, transit should be free, open and non-discriminatory, Egypt’s sovereignty should be upheld, politics should not be part of the control and running of the Canal, and arbitration should be sought once Egypt disagrees with any other state. These principles contributed to the easy opening of the Canal after the Suez crisis.
Question Four: Law of the Sea Disputes
In the last couple of decades, the Red Sea and the Gulf of Aden has been involved in several disputes. They are split between fisheries, the maritime boundaries, navigation, and many other disputes. Most of the disagreements are split relate to control of the territorial sea and the right to innocent passage for foreign ships and military vessels. Some states, like Egypt, had to fight for control of the Suez Canal and the Law of the Sea assisted in solving the disputes and opening up the Canal for transit and easy navigation for international vessels.
Concerning the Suez Canal, after the construction was finished, several disputes arose with different states fighting for control of the canal to hasten the movement of their ships all over the world. The British and French governments constantly fought over the Canal because they held the largest stakes in the Suez Canal construction company. Egypt was bankrupt hence the state did not have the capabilities of fighting for its Canal. Eventually, the President closed one of the Straits and restricted access to the Canal years later, causing an eruption of a bigger war. Ships were stalled for several years due to the closure; this meant that the states were not making money as they had expected. Israel, the United Kingdom, and France invaded Egypt to claim possession of the Canal and continue with their transit. The United Nations, through the Law of the Sea, intervened and solved the matter through arbitration. The Canal was opened and normal operations resumed.
The concept of innocent passage developed six principles, through UNCLOS, that streamlined the navigation disputes. As a matter of law, coastal states are not allowed to let armed personnel pass through their territorial waters without inspection for security purposes. The principle caused lots of issues between the coastal states and the foreign vessels. Therefore, the Law of the Sea came up with six principles that covered armed personnel, hence the military. The principles stated that the coastal states should not discriminate on any foreign vessel, the sovereignty of the territorial waters should be upheld, and coastal waters should stop transit of human and drug trafficking and any other illegal substances. These principles straightened the issues and reduced the number of disputes that arose constantly between the coastal states and the international ships.
Foreign ships are required to respect territorial waters hence protecting the security of the coastal states. The protection trickled down to the living creatures in the territorial sea. Oil spills threaten the lives of the fish in the sea hence they should be protected. Foreign ships are also not allowed to anchor or stop at the coastal states’ territorial waters, except in force majeure cases. They are also not allowed fish in waters that do not belong to them. The foreign vessels are not allowed to conduct any form of scientific research in the coastal states’ territorial waters. The port access was achieved through freedom of the high seas. The coastal states did not allow foreign ships docking on their ports because of security reasons. Hence, the high seas was the only available method of accessing these ports without causing problems. These measures, set by the Law of the Sea, have managed to sort out the disputes between the foreign vessels and the coastal states.
References
Dzurek, DJ, Schofield, C, 2001, Parting the Red Sea: Boundaries, Offshore Resources and Transit.
Fisher, WB, Smith, CG, Suez Canal, https://www.britannica.com/topic/Suez-Canal
Hiteshk, 2019, 5 Terms Every Mariner Should Know Under UNCLOS, https://www.marineinsight.com/maritime-law/5-terms-every-mariner-should-know- under-unclos/
Mohit, 2019, The Suez Canal: A Man-Made Marvel Connecting the Mediterranean and Red Sea, https://www.marineinsight.com/maritime-history/a-brief-history-of-the-suez- canal/
Sabri, AA, 2017, The limits of Yemeni sovereignty over Bab al – Mandab, https://iuvmpress.com/14774
Shaw, International Law, https://www.britannica.com/topic/international-law
Tanaka, Y, 2015, The International Law of the Sea, Cambridge University Press.
The Editors of Encyclopaedia Britannica, Continental Shelf, https://www.britannica.com/science/continental-shelf
UNEP, Red Sea and Gulf of Aden, https://www.unenvironment.org/explore-topics/oceans- seas/what-we-do/working-regional-seas/regional-seas-programmes/red-sea-and
Williams, SO, 2014, Maritime Security: The Concept of Innocent Passage, https://www.maritime-executive.com/features/Maritime-Security-Private-The- Concept-of-Innocent-Passage