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MALAYSIA TERRITORIAL WATER
25 March 2013
LAW 719PM Rohani Mohd Shah
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MALAYSIA
Adopted 12 nm limit
The Malaysian Emergency (Essential Powers)
Ordinance No7,1969,Section 3:
(1) The breath of the territorial water of Malaysia shall be
12 nm and such breath shall except in Straits of Malacca,
the Sulu Sea and the Celebes Sea be measured in
accordance with Article 3,4,6,7,8,9,10,11,12 and 13 of the
Geneva Convention on Territorial Sea and the ContinuousZone 1958
(2) In applying the after said Articles, the expression
territorial sea shall be construed as territorial waters
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LOSC 1982
Article 3
Every State has the right to established the
breath of its territorial sea up to limit not
exceeding 12 nm measured from baselinesdetermined according with the Convention
However there are still some State that can onlyclaim 3nm or less than 12 nm due to theirgeographical features or other legal reason
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Territorial Sea: Sea from thebaseline to the 12 mile limit where
State has full sovereign authority
subject to rights of innocent passage
Internal Waters:
Sea landward of the baselinewhere the State has full sovereign
authority
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Dispute over territorial sea
Conflicts still occur wherever a coastal nation
claims an entire gulf as its territorial waters
while other nations only recognises the more
restrictive definitions of the LOSC 1982
Two recent conflicts
Gulf of Sidra : Libya claimed entire gulf as its territorial
waters and US has twice (1981) and (1989) enforcedfreedom of navigation rights
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Wildenhus case
120 U.S 1 (1887)
It is part of the law of civilised nations that when a
merchant vessel of one country enters the ports of
another for the purpose of trade, it subjects itself to thelaw of the place to which it goes,
Unless
by the treaty or otherwise the two countries have
come to some different understanding or agreement.
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Waite C.J Decision
It would be beneficial if the local government would
refrain from the internal discipline of the ship
This matter should be left to be dealt with by the
authorities of the nations to which the vessel belongedto
If crime is committed on board the ship,
that disturb the peace and tranquility of the country where the vessel
been brought, the offender is not entitled to any exemption then,
he is subjected to the local law for punishment,
only if the local law see fits to assert their authority.
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In a dispute over territorial waters, the state
which controls the waters is known as the
littoral state
The issue of territorial waters is very serious,
as the claim on these waters also includes the
air space above them and the natural
resources below the water.
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CONTIGUOUS ZONE
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Ancient Times
The right is known as coastal right
The inhabitants or rules of a particular sea coast region couldassume ownership of shipwrecks vesels, abandoned ships,their cargoes, that is everything the sea deposited on their
shores.
Considering the Coastal rights as a source of revenue andincome and hoping to increase the numbers of these gifts of
the sea, the inhabitants of coastal regions quite oftenentered into criminal conspiracies with pilots, burned falsewarning lights and installed false signals and beacons.
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Definition
This is a band of water extending from the
outer edge of the territorial sea to up to 24
nm from the baseline within which a State
can exert limited control : for the purpose of preventing or
punishing infringment of its custom,
fiscal,
immigration or
sanitary laws and
regulations within its territory or territorial sea
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Limit of contiguous zone
This will typically be 12 nm wide but could be
more (if a state has chosen to claim a
territorial sea of less than 12 nm) or,
Less, if it would otherwise overlap another
states contiguous zone.
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Platia
Internal Waters:
State has full sovereign authority
Territorial Sea:
State has full sovereign authority subject to rights of innocent
passage
Contiguous Zone:
Certain limited right to protect territorial sea.
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Dispute on contiguous zone
However unlike the territorial sea there is no
standard rule for resolving such conflicts and
the state in question must negotiate their own
compromise
The USA s invoked a contiguous zone on 24
Sept 1999
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THE CONTIGUOUS ZONE
Activity Rights of foreign Nationals in the Contiguous Zone
Navigation Full navigation right if compatible with Convention (Art 58,
Paragraph 1, and 87; 58, Paragraph 2 and 88 115 Restricted by
Article 33 (see above) in general only; boarding and search bycoastal state only to prevent and punish infringement of specific
coastal state laws
Removal of historical and archaeological objects only with
approval of coastal state (Art 303, Paragraph 2)
Overflight Full right of overflight
Fishing No right after establishment of exclusive economic zone
(Exceptions: Art 62, Paragraph 2)
Scientific Research Consent of coastal state is required when economic zone has
been established (Art 246)
Laying of Cable Full right (Art 58,79) consent of coastal state for routing required
(Art 79 Paragraph 5)
Mining No right (Right of coastal state over continental shelf need not be
claimed) (Art 76, Paragraph 3)
Observance of
environmental
legislation
Must observe sanitary laws of coastal state (Art 33); must
observe pollution laws (Part XII) applicable in exclusive
economic zone
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GENERAL JURISDICTION FOR THE VESSEL
Within the contiguous zone, the coastal state is
invested with the power
to prevent infringement of its customs, fiscal,
immigration or sanitary laws and regulations withinits territory sea (Article 33, Subparagraph 1(a);
To punish infringement of the above laws and
regulations committed within its territory or
territorial sea (Article 33, Subparagraph 1(b).
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Note: (1) The regulations of the Convention for the prevention ofpollution do not apply to warship and other vessels owned bygovernment and in non-commercial service. However, states are to ensurethat such ships act, as far as reasonable and practicable, in a mannerconsistent with the Convention (Art. 236)
(2) The provisions of the Convention do not affect
- the institution of civil proceedings in respect of any claim for loss ordamage resulting from pollution of the marine environment (Art 229), or
- the right of states to take and enforce measures to avoid pollutionarising from maritime casualties (Art. 221).
STATES - Are obligated to protect and preserve the marineenvironment (Art 192)
- Are to take measures to prevent pollution by vessels (Art. 194,Subparagraph 3(b))
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THE COASTAL STATE
-is sovereign in the territorial sea (Art 2)-has jurisdiction in marine environment matters (Art 56,
Subparagraph 1(b)(iii): Art 192)
-deals with emergencies and safety of operation of
vessels (Art 194, Subparagraph 3(b), but not for
construction, etc, (Art 21, Para 2)
THE FLAG STATE
-has in general jurisdiction and control in administrative,technical, and social matters (Art 94. Para 1)
-Takes pollution measures for emergencies, design, etc. (Art
194, Subparagraph 3(b)
-Must adopt pollution regulations which have at least the
same effect as that of international rules(Art 211, Para 2)
High Seas Port state Enforcement (218) Exclusive jurisdiction (92, (1))
Must ensure at all
times the
compliance with
applicable
international rules
and standard
(Art 217, 194,
Subparagraph 3(b);211)
Effective
enforcement (Art
217, Para 1)
Exclusive
economic
zone
-May adopt laws, giving effect to
generally accepted international rules
and standards (211, (5))
-May adopt special mandatory measures
for clearly defined areas (211, (6), 234)
-Exclusive jurisdiction (58), 87-94) if
compatible with other provisions of
the Convention (See Art 228)
Territorial
Sea
-may in the exercise of its sovereignty
adopt laws which do not hamper
innocent passage (211,(4); 21, (1)(f))
-Not with respect to design construction
etc, (21,(2))
Flag state can enforce physically its
general jurisdiction through coastal
state only (with respect to innocent
passage)
General jurisdiction for the vessel
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Archipelagic
Waters
Sea lane passage
(53; 54; 42, 1(b))
See Art 27 Subparagraph
1(c))
-detain vessels which is not
seaworthy(Art 217, Para 2)
-ensure inspection
(Art 217 Para 3)
-conduct investigations
institute proceedings
(Art 217 Para 4)
-information upon request
(Art 217 Para 5)
-Provide adequate penalties
(art 217 Para 8)
-ensure that masters give
adequate information
(Art 211 Para 3)-air pollution matters
(Art 212 Para 1)
-ensure that masters give
information whether pollution
has occurred
(Art 220 Para 3)
Straits -are to give effect to international
pollution regulations regarding
discharger (Art 42, Subparagraph
1(b))
-further pollution regulations by
special agreement (Art 43,
subparagraph (b)) as Art 207 232not applicable (Art 233)
See above; Territorial Sea
Archipelagic
Sea Lanes
- are to give effect to international
pollution regulations regarding
discharge (Art 42 Subparagraph
1(b), 54)
See above; Territorial Sea
Inlandwaters ports
These waters are not subject to theConvention
See above; Territorial Sea
General jurisdiction for the vessel
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ENFORCEMENT
LOCAL LAWS
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GENERAL ENFORCEMENT CONCEPT
ARTICLES 217-220 (ENFORCEMNT): ARTICLES 223-233 (SAFEGUARDS)COASTAL STATE: Rights and Obligations FLAG STATE: Rights and Obligations
General
-Promptly notify flag state of any measures taken and submitreport (Art, 231)
-Minimum standards of proceedings (Art 223
-Enforcement by officials only (Art 224)
-Safety of navigation must not be discriminated (Art 227)
-Liability for unlawful measures (Art 232, 304)
-Release of detained vessels on appropriate security
(Art 220(7), 226(1)(b))
-Ensure compliance of vessels with international law (Art. 217)see: previous layout
-Must be informed (in cases of proceedings from matters in Ts)
and given official report (Art 218-220, 231)
-Must exercise penal jurisdiction and institute investigations (Art
217 (4 8))
Information
- Vessels navigating in TS or EEZ which have possibly
committed violation in EEZ must provide information (Art 220(3))
- Must ensure that vessels give required information (Art 220(4))
Physical Inspection (examination of certificates only; for moreextensive inspection, see Art 226(1)(a))
-Vessels navigating in TS (Art 220(2))
-Vessels navigating in TS or EEZ and substantial discharge in
EEZ and refusal to give information or case justifies inspection
(Art 220(5))
Investigations by port state
- Vessels voluntarily in port and discharge on high seas (elsewhere: onrequest) (Art 218 (3))
- Records on request (Art 218(4))
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Proceedings
-For possible violation by vessels voluntarily in port
(a) violation in TS and EEZ of law in accordance withConvention (Art 220(1))
(b) discharge on high seas and evidence to warrant
proceedings (Art 218(1)) or on request (Art 218(2))
-Vessels navigating in TS and evidence to warrant
proceeding (Art 220(2))
-Vessels navigating in TS or EEZ and major damage
or threat of such in EEZ (220(6))
-Suspension (Art 228)
If violation beyond Ts, proceeding to be suspended if
flag state institutes proceedings unless e.g. major
damage in EEZ
-Port state proceedings (Art 218) to be suspended on
request of affected coastal state (Art 218(4); subject to
Art. 228)
-Right of attendance (Art 223)
Detention
-Vessels navigating in TS and evidence so warrants
-Navigating in TS or EEZ and major damage or threat
of such in EEZ (Art 220(6))
-Violation affecting the seaworthiness of vessels (Art
219, 226(1)(c ))
-Release of vessels (Art 226(1)(b-c); 220(7); 292)
-Prompt notification (Art 226(1)(c ); 231)
Penalties
- Only monetary penalties can be imposed (Art 230)
except in cases of willful and serious act of pollution in
TS (Art 230 (2))
- Suspension in case of violation beyond TS
(see above: Proceeding ) (Art 228)
Maritime casualties
- Take measures (Art 221)
GENERAL ENFORCEMENT CONCEPT
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PORT STATE ENFORCEMENT
1ST
Condition:
Vessels must be voluntarily in port
2nd
Condition:
There must be a violation of applicable international rules and standards
established through the competent international organization or diplomatic
conference
Discharge (as defined by the Convention for the Prevention from Ships (MARPOL), 1973)
means, in relation to harmful substances or effluents containing such substances, any
release howsoever caused from a ship and includes any escape, disposal, spilling, leaking,
pumping, emitting, or emptying . (There exceptions related to dumping, activities in the
Area, and scientific research are not given here)
Abbreviations: TS = Territorial Sea; EEZ = Exclusive Economic Zone.
PROCEEDINGS: Where evidence so warrants
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PORT STATE ENFORCEMENT
Location of Violation Location of Damageor Threat of Same Basis for Institutionof Action Suspension
Any place Any place Request of flag state Art. 228
High seas - Rights of port state Art. 228
Internal waters, TS,or EEZ of foreign
state
Affecting the internalwaters, TS or EEZ of
port state
Rights of port state Art. 228
High seas or internal
waters, TS, or EEZ of
any state
In internal waters,
TS, or EEZ of another
state
Request of affected
or threatened state
Art. 218(4)
(Art 228)
Internal waters, TS,
or EEZ of a state
- Request of state
where violation
occurred
Art. 218(4)
(Art 228)
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Any place Any place Request of flagstate Records of
investigation are to
be transmitted to
flag state or state
requesting action
Art 218, Para 4
High seas - Rights of port
state
Internal waters,TS, or EEZ
- Request of statewhere violation
occurred
High seas or
internal waters, TS,
or EEZ of any state
In internal waters,
TS, or EEZ of
another state
Request of
affected or
threatened state
- Internal waters,
TS, or EEZ
Upon request of
affected state
INVESTIGATION: Believed to have occurred in, caused, or threatened damage to
PORT STATE ENFORCEMENT
COASTAL STATE ENFORCEMENT
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COASTAL STATE ENFORCEMENT
Location of Vessels Violation Applicable Law Type of charge or facts Measures
Voluntarily in port
(Art 220(1))
TS
EEZ
Laws and regulations of
coastal state
-in accordance
With the Convention
(Art 21 (2)(f); Art
211(4-7); Art 234) or
- applicable
international rules and
standards
Any violation Proceeding
TS (Art
220(2))
TS 1) Clear grounds for belief,
but without prejudice to
right of innocent
2) Where evidence so
warrants
-Physical inspection (Art
226(1)(a)) or
-Further physical
inspection (Art
226(1)(a)(i-iii)
-Proceedings
-Detention
TS or EEZ (Art
220(3))
EEZ International rules and
standards (or national
law conforming with or
giving effect to)
Clear grounds for belief Give information as
listed in Art 220(3)
-Identity
-Registry
-Last port
-Next port
-Information in respect
to incident
TS or EEZ (Art
220(5))
EEZ International rules and
standards (As above)
Clear grounds for belief and
substantial discharge causing or
threatening significant pollution
and vessels has refused to giveinformation supplied obviously
Physical inspection
(Further physical
inspection (Art.
226(1)(a))
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TS
orEEZ
(Art
220(6)
TS
orEEZ
International rules
and standards (Asabove)
Clear objective evidence
and discharge is- causing major damage
- or threat of major
damage to
- coastline or
- resources of TS/ EEZ
andProvided that evidence
so warrants
- Proceeding
- Detention(Release: Art 220(7))
TS
or
EEZ(Art
220(8))
EEZ
(clearly
defined
area)
National law giving
effect to generally
accepted rules (Art211(5))
Applicable in cases of
Art, 220(36)
accordingly
Measures accordingly
(Art 220 (36))
COASTAL STATE ENFORCEMENT
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