Marine Law & Force Majeure Clauses

• MT 292 is a course on International Maritime Law at Sharjah Maritime Academy, taught by Dr. Tarek Ali Abou Elela.
• Chapter 4 focuses on the United Nations Convention on the Law of the Sea (UNCLOS).

Definitions

• "Dumping" includes any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea.
• Pollution of the marine environment consists of introducing substances or energy into the marine environment that results in harmful effects.
• Harmful effects of pollution include harm to living resources and marine life, hazards to human health, and hindrance to marine activities like fishing.
• Force Majeure frees parties from liability or obligation when an extraordinary event beyond their control prevents them from fulfilling contract obligations.
• Most force majeure clauses suspend, rather than excuse, non-performance for the duration of the event.

UNCLOS Convention and Maritime Zones

• UNCLOS sets limits for various maritime areas.
• Areas outside territorial waters are referred to as international waters.
• Maritime zones include internal waters, territorial waters, contiguous zone, Exclusive Economic Zone, and continental shelf.

Baselines

• The baseline is the boundary from which a nation measures the areas over which it exercises sovereignty.
• Except in special cases, the baseline is the low-water line along the coast.

Internal Waters

• Internal waters are on the landward side of the baseline, including inland waters, ports, rivers, lakes, and straits.
• According to Article 8, these waters fall under the exclusive sovereignty of the coastal nation.
• The state is free to set laws, regulate use, and use any resource in its internal waters.
• Foreign vessels do not have the right of passage within internal waters, unless with the state's permission.

Territorial Waters

• Territorial waters extend 12 nautical miles (22 kilometers or 14 miles) from the baseline.
• Coastal states are free to set laws, regulate use, and use any resource within their territorial waters.
• Vessels have the right of innocent passage through territorial waters.
• Innocent passage is defined as passing through waters in an expeditious and continuous manner.
• Passage must not prejudice the peace, good order, or security of the coastal state.
• Activities such as fishing, polluting, weapons practice, and spying are not "innocent".
• Submarines and underwater vehicles must navigate on the surface and show their flag.
• Nations can temporarily suspend innocent passage in specific areas of their territorial seas for security reasons.
• Passage means navigation through the territorial sea for traversing, without entering internal waters or port facilities, or proceeding to/from internal waters or a call at such port facility according to Article 18.
• Passage includes stopping and anchoring only for force majeure, distress, or to help persons/ships/aircraft in danger.

Contiguous Zone

• The contiguous zone extends 12 nautical miles (22 km) beyond the territorial sea limit.
• States can enforce laws in four specific areas within the contiguous zone: customs, taxation, immigration, and pollution.
• The contiguous zone becomes a "hot pursuit area" if an infringement began/is about to occur within the state's territory or territorial waters.

Exclusive Economic Zones (EEZs)

• EEZs extend to 200 nautical miles (370 kilometers or 230 miles) from the baseline.
• Coastal nations have sole exploitation rights over all natural resources within their EEZ.
• Foreign nations have freedom of navigation/overflight, subject to coastal state regulations, and can lay submarine pipes/cables.

Continental Shelf

• The continental shelf is defined as the natural prolongation of the land territory to the continental margin's outer edge, or 200 nautical miles (370 km) from the coastal state's baseline, whichever is greater.
• A state's continental shelf may exceed 200 nautical miles (370 km) until the natural prolongation ends.
• It can never exceed 350 nautical miles from the baseline, or 100 nautical miles beyond the 2,500-meter isobaths.
• Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf.
• Exclusivity extends to living resources "attached" to the continental shelf but not creatures living in the water column.

Archipelagic Waters

• Archipelagic waters are enclosed by baselines drawn connecting the outermost points of the outermost islands.
• The baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another.
• All waters inside this baseline are designated Archipelagic Waters.
• The state has full sovereignty over these waters, like internal waters.
• Foreign vessels have the right of innocent passage through archipelagic waters, like territorial waters.

Straits Used for Maritime Navigation

• Straits are narrow channels linking two larger areas of sea.
• Straits must be naturally formed and allow for international navigation to ports.
• Straits can not belong to the coastal states formed by the strait.
• Transit passage means the exercise of freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.
• According to UNCLOS Article 38, all ships and aircraft enjoy the right of transit passage, which shall not be impeded, except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exits seaward of the island a route trough the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics.

Duties and Rights of Coastal States

• According to UNCLOS Article 24, coastal States must not hamper the innocent passage of foreign ships through the territorial sea.
• Coastal States cannot impose requirements denying/impairing innocent passage or discriminate against ships of any State.
• However, according to UNCLOS Article 25, coastal States may take necessary steps to prevent non-innocent passage and prevent breach of admission conditions for ships proceeding to internal waters.
• Coastal States may temporarily suspend innocent passage in specified territorial sea areas for security reasons, if duly published.
• The coastal State's criminal jurisdiction should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:
• The consequences of the crime extend to the coastal State.
• The crime is of a kind to disturb the peace of the country or the good order of the territorial sea.
• The assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State.
• Such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

High Seas

• According to Art. 86, High Seas are all parts of the sea that is not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.
• According to Art. 87, the freedom of the high seas includes: freedom of navigation, freedom of over flight, freedom to lay submarine cables and pipelines, freedom to construct artificial islands and other installations permitted under international law, freedom of fishing, freedom of scientific research.
• Restrictions on freedom includes vessels's duties to: observe laws, comply with duties, continuous and expeditious passage, and refrain from research and surveys.
• Other prohibition consists of: the transport of slaves, maritime piracy, the right of suppression of illicit traffic in narcotic drugs or psychotropic substances, the right to suppression of illegal broadcast from high seas, the right of visiting and inspection by approval of United Nations.

Test your knowledge of UNCLOS, marine pollution, and dumping regulations. Explore the effects of force majeure clauses on contractual obligations. Learn about events that trigger these clauses and their impact on performance.