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STAFF COLLEGE ENTRANCE EXAM PREPARATION - PAPER-III

BANGLADESH MERCHANT SHIPPING ORDINANCE

Q.1 What is a special Trade Passenger Ship? What are the rules and regulations for the services of medical officer and attendants for such a ship? How the master of a Special Trade Passenger Ship is punished if he does not comply with the provisions of the ordinance?

ANSWER

1. Special Trade Passenger means a passenger carried in special trades in spaces on the weather deck, upper deck or between decks which accommodate more than 8 passengers. 2. Special Trade Passenger Ship means a mechanically propelled passenger ship which carries more than 30 special trade passengers. The Rules and Regulations for the Services of MO and Attendants for such a Ship 1. Every special trade passenger ship which has on board more than one hundred persons, which number shall include special trade passengers, cabin passengers and crew, shall have on board a Medical Officer possessing such qualifications as may be prescribed. If the number of such persons exceeds one thousand, two such Medical Officers shall be carried and if the number exceeds two thousand, three such Medical Officers there shall also be carried such attendants as may be prescribed. 2. The services of all such Medical Officers and attendants shall be provided without charge to all special trade passengers on board. 3. Any person who charges a special trade passenger for the services of a Medical Officer or attendant shall, for each offence, be punishable with fine which may extend to two thousand taka. 4. Every such Medical Officer shall keep diaries and submit reports or other returns as may be prescribed. 5. If Medical Officers and attendants are not carried on special trade passenger ship in accordance with the above provisions (Para 1), the master and owner shall each be liable to a fine not exceeding twenty thousand taka.

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IF Master of a Passenger Ship does not comply with the Provisions of Ordinance 1. If the Master knowingly keeps on board any pilgrim or article ordered to be removed under this section, he shall be punishable with fine which may extend to ten thousand taka for each such pilgrim or one thousand taka for each such article or with imprisonment for a term which may extend to one year, or with both. Q.2 What are the general rules concerning life saving appliances and fire appliances to be carried by every Bangladesh ship going to sea?

ANSWER

Life Saving Appliances

1. The government may, by notification in the official gazette, make rules prescribing the life saving appliances and fire appliances to be carried by every Bangladesh ship going to sea. 2. In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:

a. The arranging of ships into classes, having regard to the services in which they are employed, the nature and duration of the voyage and the number of persons carried.

b. The number, description and mode of construction of the boats, life-rafts, line throwing appliances, life-jackets, life-buoys and buoyant appliances to be carried by ships according to the classes in which the ships are arranged.

c. The equipment to be carried by any such boats and rafts and the method to be provided to get the boats and other life saving appliances into the water, including oil for use in stormy weather.

d. The provision in ships of a proper supply of lights and smoke signals inextinguishable in water and fitted for attachment to life-buoys.

e. The position and means of securing the boats, life-rafts, life-jackets, life-buoys and buoyant apparatus.

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f. The marking of boats, life-rafts, and buoyant apparatus so as to show their dimensions and the number of persons authorized to be carried on them.

g. Manning of life boats and the qualification and certificates of life-boatmen.

h. The provision to be made for mustering the persons on board and for embarking them in the boats (including provision for the lighting of, and the means of ingress to and egress from, different parts of the ship).

j The provision of suitable means situated outside the engine room whereby any discharge of water into the boats can be prevented.

k. Assignment of specific duty to each member of crew in case of emergency.

l. The methods to be adopted and the appliances to be carried on ships for the prevention, detection and extinction of fire.

m. The provision in ships of plans and other information and relating to the means of preventing, detecting, controlling and extinguishing outbreak of fire.

n. The practice in ships of boat drills, and fire drills.

p. The provision in ships of means of making effective distress signals by day and by night.

q. The provision in ships, engaged on voyages in which pilots are likely to be embarked, of suitable pilot ladders, and of ropes, light and other appliances designed to make the use of such ladders safe.

r. The periodical examination and maintenance of any appliances or equipment required by any rules made under this Act to be carried by ships, and

s. The manner in which a notice given shall be communicated to the collector of customs.

t. The charging of fees for the grant of the certificates and the amount of such fees and the manner in which they shall be recoverable.

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3. Inspection of life saving appliances and fire appliances:

a. A surveyor may, at any reasonable time, inspect any ship for the purpose of seeing that she is properly provided with life saving and fire appliances in conformity with the rules made under this Act.

b. If the said surveyor finds that the ship is not so provided he shall give to the master or owner notice in writing pointing out the deficiency and also pointing out what in his opinion is requisite to remedy the same.

c. Every notice so given shall be communicated in the prescribed manner to the customs collector of any port at which the ship may seek to obtain a clearance and the ship shall be detained until a certificate signed by such surveyor is produced to the effect that the ship is properly provided with life-saving and fire appliances in conformity with the said rules.

Q.3 What is meant by “Unseaworthy Ships”? What punishment is due if unseaworthy ship is sent to sea? State the details of obligation of owner to crew with respect to seaworthiness.

ANSWER

Unseaworthy Ship 1. A ship is unseaworthy within the meaning of this Ordinance, when

a. The materials of which she is made

b. Her construction

c. The qualifications of the crew including officers

d. The weight, description and stowage of the cargo and ballast, the condition

of her hull and equipment, boilers and machinery

- Are not such as to render her in respect of fitness for the proposed

voyage or service.

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Punishment for Sending Unseaworthy Ship to Sea 1. Every person who sends or attempts to send a Bangladesh ship to sea from any port or place in Bangladesh in such a unseaworthy state that the life of any person is likely to be thereby endangered shall, unless he proves that he used all reasonable means to ensure her being sent to sea in a seaworthy state or that her going to sea in such unseaworthy state was under the circumstances reasonable and justifiable, be punishable with imprisonment which may extend to two years, or with fine which may extend to forty thousand taka, or with both. 2. Every master of a Bangladesh ship who knowingly takes such ship to sea in such unseaworthy state that the life of any person is likely to be thereby endangered shall, unless he proves that her going to sea in such unseaworthy state was, under the circumstances, reasonable and justifiable, be punishable with imprisonment which may extend to two years, or with fine which may extend to forty thousand taka, or with both. 3. For the purpose of giving such proof, every person charged under this section may give evidence in the same manner as any other witness. 4. No prosecution under this section shall be instituted except by, or with the consent of, the government.

Obligation of Owner to Crew with Respect to Seaworthiness

1. In every contract of service, express or implied between the owner of a Bangladesh ship and the master or any seaman thereof, and in every contract of apprenticeship whereby any person is bound to serve as an apprentice on board any such ship, there shall be implied, notwithstanding any agreement to the contrary, an obligation on the owner that such owner and the master, and every agent charged with loading of such ship or the preparing thereof for sea, or sending thereof to sea, shall use all reasonable means to ensure the seaworthiness of such ship for the voyage at the time when such voyage commences, and to keep her in a seaworthy state during the voyage. 2. For the purpose of seeing that the provisions of this section have been complied with the government may, either at the request of the owner or otherwise, arrange for a survey of the hull, equipment or machinery of any sea-going ship by a surveyor.

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Q.4 What is the criteria and procedure for keeping Official Log books by Bangladesh Ships according to our shipping ordinance?

ANSWER

Procedure for Keeping Official Log

1. Except in the case of a coasting ship not exceeding 200 tons gross and a sailing vessel or a fishing vessel an official log in prescribed form shall be kept in each Bd ship. 2. The official log shall be kept distinct from the ordinary ship's log. 3. Any entry required by this Ordinance in the official log book shall be made as soon as possible after the occurrence to which it relates, and, if not made on the same day as that occurrence, shall be made and dated so as to show the date of the occurrence and of the entry respecting it and if made in respect of a occurrence happening before the arrival of the ship at her final port of discharge, shall not be made more than twenty-four hours after that arrival. 4. Every entry in the official log book shall be signed by the master and by the senior mate available on board and also:

a. If it is an entry of illness, injury or death, by the surgeon or medical practitioner on board, if any, and b. If it is an entr1y of wages due to or the property of a seaman or apprentice who dies, by some other member of the crew. c. If it is an entry of wages due to a seaman who enters service in the Bangladesh navy, by the seaman or by the officer authorized to receive the seaman into that service.

5. Every entry made in an official log book in the manner provided by the Ordinance shall be admissible in evidence. Entries to be made in the Official Log/ Contents of Merchant Ships Log The master of a ship for which an official log is required shall enter or cause to be entered in the official log book the following matters, namely: 1. On Discipline

a. Every offence committed by any crew.

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b. Every offence tried on board with punishment inflicted.

c. Every Conviction of any crew with punishment by any court or by any other authority.

d. Statement on character, conduct and qualification of every crew on board and a report on the quality of work of each member of his crew.

e. Every disrating of sailors with statement of fact and acknowledgement by the individual.

2. Birth, Marriage and Death

a. Every Birth onboard with the sex of the infant and the names of the

parents.

b. Every marriage onboard with name and ages of parties.

c. Every case of death onboard and the cause thereof.

3. Health and Hygiene

a. Every case of illness or injury with the nature thereof and the medical treatment adopted, if any.

b. Record of examination of provision and water and the result of such examination.

c. A record of inspection of crew accommodation and the result of such inspection.

4. Pay and Money Concerned

a. The name of every seaman or apprentice who ceases to be a member of the crew otherwise than by death, with the place, time, manner and cause thereof.

b. The wages due to any seaman or apprentice who dies during the voyage or otherwise ceases to be a member of the crew, and the gross amount of all deductions to be made there from.

c. The wages due to any seaman who enters service in the Bangladesh Navy during the voyage and the gross amount of all deductions to be made there from.

d. Money or other property of a sailor who died recently during the voyage and any money recovered from the items sold, item wise.

e. Statement of personnel effects and mainly left behind by a sailor (entering or leaving the ship) and amount of his wages due to him.

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5. Training

a. A record of all drills and inspections required by any rule made under this ordinance with an explicit record of any defects disclosed.

6. Accident

a. Any collision with another ship with circumstance under which the same occurred.

b. Every fire or boiler explosion with circumstance under which the same occurred.

c. A statement of any damage sustained due to fire, boiler explosion, perils of the seas or any other reason during the voyage.

d. Name and amount of cargo jettisoned for the safety of the crew, passenger or the ship.

e. Time of opening or closing of any door hinge, port holes, gangway etc which is normally required to be kept close/open for safe navigation.

7. Safety and Distress

a. Any distress signal at sea received by the Master.

b. Any occasion for not rendering assistance to any vessel or aircraft or person in distress at sea together with his reasons for inability.

8. Ships Particulars

a. Certificate of deck line and load line.

b. Particular of depth to which the ship is loaded prior sailing for the purpose of proceeding to the sea.

c. Tonnage/space occupied by cargo.

9. Administration

a. Any order made by a Marine Board.

b. Statement of any stow away found on board.

c. A list of documents delivered to him on taking command of the ship and

d. Any other matter prescribed for entry in the official log.

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Q.5 When a shipping casualty is deemed to have occurred?

ANSWER 1. Shipping Casualties. A shipping casualty shall be deemed to occur when:

a. On or near the coasts of Bangladesh, any ship is lost, abandoned, stranded or materially damaged.

b. Any ship causes loss or material damage to any other ship on or near such coasts or within such waters.

c. Any loss of life ensued (as a result) by reason of any casualty happening to or on board any ship on or near those coasts or within such waters.

d. In any place, any such loss, abandonment, stranding, material damage or casualty as above mentioned occurs to or on board any Bangladesh ship, and any competent witness thereof is found in Bangladesh.

e. Any Bangladesh ship is lost or is supposed to have been lost and any evidence is obtainable in Bangladesh as to the circumstance under which she proceeded to sea or was last heard of.

2. Preliminary Inquiry into Shipping Casualties. On receipt of information that a shipping casualty has occurred, a preliminary inquiry may be held by:

a. The Principal Officer at or near the place where the casualty occurs, or a surveyor authorized by him if the shipping casualty occurs on or near the coasts of Bangladesh, including the territorial waters.

b. The Principal Officer to whom the casualty has been reported or a Surveyor authorized by him if the shipping casualty occurs elsewhere.

3. However, the government may appoint any person to hold a preliminary inquiry regarding any shipping casualty. 4. Any person holding an inquiry under this section:

a. May go on board any ship and inspect it, not unnecessarily detaining or delaying her from proceeding on any voyage.

b. May, by summons under his hand, require the attendance of all such persons as he thinks fit to call before him and examine for such purpose and may require answers or returns to any inquires he thinks fit to make.

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c. May enter or inspect any premises, which appear necessary for inquiry. d. May require and enforce the production of all books, papers or documents, which he considers important for such purpose and, e. May administer oaths or may in lieu of requiring or administering an oath, require any person examined by him to make and subscribe a declaration of the truth of the statement made by him in his examinations.

5. An officer making a preliminary inquiry under this section shall send a report thereof to the government. Q.6 What are the occasions in which a Marine Board is to be constituted for merchant ship operating outside Bangladesh as per the provision of Bangladesh Merchant Shipping Ordinance 1983?

ANSWER

Occasions for Constituting a Marine Board Outside Bangladesh 1. Following occasions requires to constitute a Marine Board outside Bangladesh:

a. A complaint is made to a Bangladesh consular officer or senior officer of any ship of the Bangladesh Navy in the vicinity by the master or any member of the crew of a Bangladesh ship and such complaint appears to the Bangladesh consular officer or naval officer (, as the case may be, ) to require immediate investigation, or b. The interest of the owner of a Bangladesh ship or of the cargo thereof appears to a Bangladesh consular officer or naval officer(, as the case may be, ) to require such inquiry, or c. An allegation or incompetence or misconduct (complaint) is made to a Bangladesh consular officer or a naval officer against the master or any of the officers of a Bangladesh ship, or d. Any Bangladesh ship is lost, abandoned or stranded at or near the place where a Bangladesh consular officer or naval officer may be (?) or whenever the crew or part of the crew of any Bangladesh ship which has been lost, abandoned or stranded arrives at that place, or

e. Any loss of life or any serious injury to any person has occurred on board a Bangladesh ship at or near that place.

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2. (The Bangladesh consular officer or the naval officer, as the case maybe, may, in his discretion, convene a Board of Marine Inquiry to investigate the said complaint or allegation or the matter affecting the said interest or the cause of the loss, abandonment or the stranding of the ship or of the loss of life or of the injury to the person.)

Constitution and Procedure of Marine Board 1. A Marine Board shall consist of the officer convening the Board and two other members. 2. The two other members of the Marine Board shall be appointed by the officer convening the Marine Board from among persons conversant with maritime or mercantile affairs. 3. The officer convening the Marine Board shall be the presiding officer thereof. 4. A Marine Board, shall, subject to the provisions of the Act, have power to regulate its own procedure. Powers of Marine Board 1. (While holding an enquiry, a marine board may exercise all or any of the powers specified in Section 416 (3), as may be necessary in the circumstances of the case.) 2. A Marine Board may, after investigating and hearing the case-

a. (If it is of opinion that the safety of a Bangladesh ship or her cargo or crew or the interest of the owner of a Bangladesh ship or of the owner of the cargo thereof requires it,) remove the master and appoint another qualified person to act in his stead. b. (If it is of opinion that any master or officer of a Bangladesh ship is incompetent or has been guilty of any act of misconduct or in a case of collision has failed to render such assistance or that loss, abandonment or stranding of or serious damage to any person has been caused by the wrongful act or default of any master or ship's officer of a Bangladesh ship,) suspend the certificate of that master or ship's officer for a stated period. c. Discharges a seaman from a Bangladesh ship and order the wages of any seaman so discharged or any part of those wages to be forfeited. d. Decide any question as to wages, fines or forfeitures arising between any of the parties to the proceedings.

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e. Direct that any or all of the costs incurred by the master or owner of a Bangladesh ship or on the maintenance of a seaman or apprentice while in prison outside Bangladesh shall be paid out of, and deducted from, the wages of that seaman or apprentice, whether then or subsequently earned. f. If it considers such a step expedient, order a survey to be made of any Bangladesh ship which is the subject of investigation. g. Order the costs of proceedings before it or any part or those costs, to be paid by any of the parties thereto, and may order any person making frivolous or unjustified complaint.

3. (All orders, made by a Marine Board shall be entered in the official log book of the ship which is the subject of investigation or on board which the casualty or occurrence or investigation took place, and be signed by presiding officer of the Board.) 4. A marine board, shall, in the case of every inquiry under this chapter, transmit to the government a full report to the conclusions at which it has arrived, together with the evidence and any orders passed under this section. Q.7 According to our merchant Shipping ordinance, what is the prescribed procedure for registering power driven fishing vessel? What happens if such a fishing vessel does not have a certificate of registry?

ANSWER 1. According to the act, every power driven seagoing fishing vessel shall be registered. 2. The owner shall make application in prescribed form to the Register for the grant of a ‘Certificate of Registry’ in respect of the vessel. Tonnage of the vessel has to be mentioned in the form. 3. The Register, after enquiring, will enter in the fishing vessel register, following particulars: a. Name of the vessel, place of built and port to which she belongs. b. The tonnage ascertained. c. Type of engine. d. Name, occupation and address of the owner. e. The letter and number assigned to the vessel. f. The mortgages, if any, affected by owner in respect of the vessel. g. Such other particulars as may be prescribed.

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4. The Register will then grant the ‘Certificate of Registry’ in prescribed form on payment of specific fee. 5. If a fishing vessel does not have a ‘Certificate of Registry’, she –

a. Shall be arrested by the Principal Officer, Surveyor or Collector of Customs until the certificate is produced.

b. If the vessel is not registered, then the owner or master or skipper shall be liable to pay a fine which may extend up to 20,000/00 Taka.

Q.8 Write short note on ‘Court of Survey’

ANSWER 1. The owner, master or agent of a Bangladesh ship may appeal to a ‘Court of Survey’, if a Surveyor, authorized to inspect a ship –

a. Makes a statement in his report of inspection with which the owner or his agent or the master is dissatisfied, or

b. Gives notice under the ordinance of any defect in any ship, or

c. Declines to give any certificate under the ordinance.

2. A court of survey for a port shall consist of a judge sitting with two assessors. The assessors shall be persons with nautical, engineering or other special skill experience. One of the assessors shall be appointed by the government either generally or for any specified case and the other shall be summoned by the Judge, out of a list of persons prepared by the government for the purpose from time to time. If there is no such list or if it is impracticable to procure the attendance of any person named in such list, shall be appointed by the Judge. 3. Powers and Procedure of Court of Survey

a. The judge shall, on receiving notice, appeal or a reference from the government immediately summon the assessors to meet forthwith in the prescribed manner.

b. The court of survey shall hear every case in open court.

c. The judge and each assessor shall, have the same powers of inspection, and of enforcing the attendance of witness and the production of evidence.

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d. The judge may appoint any competent person to survey the ship and report to the court.

e. The judge shall have the same power as the government to order ship to be released or finally detained; but for detaining one of the assessors has to concur.

f. The owner and master of the ship and any person appointed by the owner or master and also any person appointed by the government may attend at any inspection or survey made in pursuance of this section.

g. The judge shall report the proceedings of the court to the government and each assessor shall either sign such report or report to the government the reasons for his dissent.

Q.9 What do you mean by ‘Salvage Services’? Enumerate the procedure for rendering Salvage Services to private ships in the home water of Bangladesh. – 03 Q. BNT KHADEM is ordered to render salvage service to a Singapore origin ship near breakwater. What are the duties of CO before rendering salvage service?

ANSWER Salvage Services 1. Salvage services are services rendered by persons by whose assistance – a ship, its apparel (Structure), cargo, or wreck, has been saved when in danger, either at sea or in tidal waters or on the shores thereof. It is not necessary that the danger should be imminent. It is sufficient if, at the time when the services are rendered, the ship has encountered any danger or misfortune which might possibly expose her to injury or destruction if the services were not rendered. Procedure to Render Salvage Service to Private/ Singapore Origin Ship 2. All officers of Bangladesh Navy ships are to afford every possible aid to vessel in danger, distress, or in want of assistance, and in saving life. 3. They are to use their best efforts in this regard. 4. In time of peace BN ships should not take action to the prejudice of any merchant ship registered in the Commonwealth which may be present and capable of affording effective help. 5. When assistance from naval sources has been dispatched and has been accepted by the master of the vessel, salvage operations are to proceed without delay in order to prevent deterioration in the ship’s position.

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6. Whether or not any salvage agreement has been signed, nothing which may be done to assist the vessel can in any way prejudice the government’s right to discontinue operations or to continue on such terms only as may be agreed between the parties. 7. When a salvage service is rendered to a private vessel by any BN ships or vessels, the Captain or owner or agent of the private vessel should be asked to sign Salvage Agreement Form (Lloyd’s Open Form). 8. This agreement should be signed before the operations commence if reasonably possible. 9. Where insistence on this condition would entail danger to human life, or is for other reasons impracticable, every endeavour should be made clear to the owner or captain of the vessel that the services are being rendered, should then be signed later, and, if practicable, before the termination of the salvage operations. 10. The government is entitled to claim salvage in respect of services rendered by any government ship. Officers and men can also make claims subject to government sanction. Q.10 What are the contents of a salvage report made by a naval ship to the NHQ?

ANSWER Salvage Report to NHQ 1. A short report of the services is to be made immediately to Naval Headquarters by signal stating in addition to the nature of the service:

a. Name of the salvaged ship b. Owners name c. Port of Registration d. Nature of Cargo e. Position of the ship (where she lies) f. Whether Lloyds open form signed g. Whether bail or Security has been given h. What is the amount of Bail or security or should be required j. If Lloyds open form not signed whether arrested j. Name of the agent k. If salvage operation requires more than a day, it is to be informed to NHQ

2. Arrest vessels and their crews shall be promptly released upon posting of reasonable bond or other security.

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Q.11 How salvage claims will be recovered from a ship of foreign origin and how will it be distributed? Write in details. What steps are required to be taken for recovery of claims with salvage service rendered?

ANSWER Recovery of Salvage claims from a Foreign Ship and its Distribution 1. All claims in respect of a particular salvage should be dealt with through an agency. When salvage is carried out to a foreign ship the government lawyer will normally obtain bail (Payable money) to cover the claims of the government and officers and men involved in salvage operation. Ship’s agent will provide the bail for the claim. 2. If no salvage agreement is signed or if the salvage is completed before signing any agreement the salvage ship/cargo may be arrested until bail or security is given. 3. If ship after salvage tries to escape without bail than an officer may be placed on board to exercise force.

4. If the intention of a ship is to escape without bail or security, legal actions may be taken until bail/security has been given. 5. However if the owner is well reputed, whether foreign or national, and salvage agreement has been signed then such ship cannot be arrested without the authority of the government. This provision also applies to vessels belonging to Bangladesh owners of good reputation even if salvage agreement has not been signed. Salvage Rendered Abroad • If the rules applicable within the country cannot be implemented abroad or if it is not possible to communicate with the agent then some agreement to be made with the master of the vessel to be salvaged to abide by the decision of court, should be written. • If the owner is not a Bangladeshi then the master must provide a guarantee of reliable bank or other security to satisfy the agreement. The sum mentioned in the agreement will depend on the circumstance but never more than ½ of the salved property value.

• The salver and the master then make statement in writing, which need not be on oath specifying, so as far as possible, particulars of the ship, cargo, salvage service etc.

• The salver must, as soon as practicable, transmit the agreement and statement to the court in Bangladesh in which the agreement is to be adjudicated upon.

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• If the salver cannot obtain an agreement or does not get satisfactory guarantee from the master, owner or the agent, then he may detain the property salved.

• He must therefore take the vessel to a foreign port where there is a Bangladeshi consular officer or to some port where there is a court of admiralty or a vice admiralty court. In doing so the salver shall take into account the navigational convenience of the ship salved as far as possible.

• Within 24 hours of reaching such place, both salver and the master are to deliver a statement containing the particulars. The statement must be on oath.

• Upon receiving these statements, the consular officer or the judge must proceed within 4 days to fix the amount of the bond for the salvage service and to cover any additional claim to costs.

• Should either party fail to give statement within 24 hours, the consular officer or the judge may proceed exparte, but he should not, except in pressing circumstances, do so without giving notice. If the property or vessel is to be sold he is to allow a reasonable time for the purpose of giving the particulars of the sale. He has no power ever to require the cargo to be unloaded.

• When the amount has been determined, the parties are to be given notices to prepare the bond.

• If the owner resides in any foreign country, such additional security must be given as the consular officer or judge may approve.

• If the master or other person in charge of the salved property is still unable or unwilling to execute the bond, in such amount on the consular officer or judge shall fix, the salver is free to take proceedings to court and may detain the salved vessel or property through the proper officer of the court until claim is satisfied or security given.

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Q.12 What is prize money? Narrate the procedure for distributing prize money?

ANSWER Prize Money - 95, 98 1. The term Prize Money includes following all awards distributable to the naval personnel:

a. Salvage.

b. Awards for seizure under the:

(1) Prize Act

(2) Foreign Enlistment Act

(3) Customs Acts

(4) Merchant Shipping Acts

(5) Piracy Acts

c. Award from any other special service for which any reward is payable. Salvage Awards and Distribution of Prize Money 1. No salvage payment/remuneration for the services of officers and men of BN without the approval of the government. 2. Any money received to be taken on charge by Supply Officer in his cash account under the head Naval Prize Remittance and reported immediately to the controller of naval account for transfer to Naval Prize Account for distribution.

3. No assignment of prize or salvage money may be made in respect of any advance or consideration.

4. Awards when ready for distribution to be notified in FO.

5. Application for share to be made to NHQ.

6. If share not claimed within 6 years from the 1st day of July following the date of award when ready for distribution will be considered as invalid.

7. The account is to be closed within 10 years. However, Chief of Naval Staff can valid the invalid application within this 10 years if he wishes.

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Q.13 What is the rule regarding salvage of government stores or property?

ANSWER 1. If any article is lost from one of the BN ships and subsequently the article is brought on board and the captain is satisfied that the person who brings them did not obtain them by improper means, then he is to give a receipt for them. Particulars as to the description, quantity and condition of the articles recovered are to be shown on receipt and a copy is to be kept with ships store accounts in which they are taken on charge. 2. When losses occur of important stores which cannot be recovered by the ship or the local naval authorities and employment of private individual or local authorities is desirable, it should be carefully considered before a contact is entered into whether the expenses are justified. 3. The captain is authorized to make small payments for salvage by private individuals without previous submission to the CNS. 4. The following documents are required to authorize the payment:

a. Duplicate copy of the receipt given for the articles salved.

b. Report of survey showing condition and estimated present value of articles.

c. Statement indicating:

(1) The services for which the articles are expected to be required.

(2) Whether the parties claiming salvage were assisted by part of the crew of any BN ships.

(3) Why the crew had not been able to recover the article.

(4) The proper amount of salvage to be paid and proposed to be paid.

5. If the salvage value exceeds taka 75/00 then these documents are to be forwarded by the CO to the CNS through Admin Authorities.

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Q.14 What is ‘Wreck’? What to be done by CO of BN ships if he finds:

a. A derelict or abandoned vessel at sea. b. Uncharted Danger. c. Navigational Danger.

ANSWER

1. Wreck. Wreck includes following when found in the sea or in tidal waters or on the shore:

a. Goods, which have been cast into sea and then sink and remain under water.

b. Goods, which have been cast into sea and remain floating on the surface.

c. Goods, which are sunk in the sea but are attached to a floating object in order that they may be found again.

d. Goods, which are thrown or abandoned.

e. A vessel abandoned without hope or intention of recovery.

2. Rules to be observed by CO, if he finds -

a. Derelict. If a BN ship comes across a water-logged vessel, abandoned at sea which constitute a danger to navigation, then she is to carefully examine whether the vessel can be towed into port or not. If not, then every effort to be made to sink or otherwise to destroy her. While doing so, care must be taken so that her cargo does not become a danger after release.

b. Uncharted Danger. If a BN ship comes across any danger in the ordinary track of shipping which is not charted, the Captain is to collect detail information on the danger and report the same to NHQ by signal. The info should contain the nature, extent, position and depth of water in respect of the danger.

c. Navigational Danger. If a navigational danger is discovered, the matter has to be reported to NHQ immediately by the CO of the ship. NHQ will then arrange for necessary navigational warning to be broadcasted. The CO is also to forward ASAP the full details of the danger on prescribed form (Form H 102- Hydrographical Note) to the NHQ for transmission to the RN Hydrographer and for publication in the Notices to Mariners.

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LAW OF THE SEA

Q.15 What is the legal status of Territorial Sea? What should be the maximum breadth of the Territorial Sea? What is the outer limit of the Territorial Sea?

ANSWER

Legal Status of Territorial Sea 1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. 2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.

3. The sovereignty over the territorial sea is exercised subject to UNCLOS and to other rules of international law.

Breadth of the Territorial Sea 1. Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with UNCLOS. Outer Limit of the Territorial Sea 1. The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea. Q.16 What do you mean by baseline? What is the authority of baseline for Bangladesh? Does this authority (the Bangladesh Territorial Waters and Maritime Zones Act 1974) have any conformation with UNCLOS-III? If so, what is your suggestion for its solution? Q. How baseline of Bangladesh is measured/determined? What kind of Baseline is applicable for Bangladesh? Give reasons in favor of your arguments. - 97

ANSWER

Baseline 1. A baseline is the datum line of a State from where territorial water and other maritime zones of the State are measured.

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Authority for the Baseline of Bangladesh 1. The authority for Baseline of Bangladesh is Bangladesh Territorial and Maritime Zone Act 1974. Bangladesh government submitted the proposal for measuring the baseline considering the depth method in the year of 1974 by government notification (Order XXVI) due to the deltaic and unstable condition of our coastline. Bangladesh has fixed the same geographical position on 10 fathom line through those coordinates the baseline is measured. (If possible read also LOS by Rear Admiral M K Alam pages 34). Confirmation/Conflict of Authority with UNCLOS III 1. Base line Determination has following conflicts with UNCLOS III:

a. Depth criteria are not in conformity with provisions of these laws. Till 1982, when the UNCLOS III was adopted, Bangladesh could not get the concept of depth criteria accepted by the world community or our neighbors.

b. Moreover, being a deltaic country Bangladesh adopted a method of geographical coordinates for determining the baseline and nothing is mentioned for the shifting of such baseline in the Territorial Waters and Maritime Zone Act of Bangladesh.

2. Suggestions for solution:

a. As the depth criteria is not accepted internationally, so we have to find out some other way in accordance with the provisions of UNCOLS-III.

b. The law of equity may be followed to solve the dispute with the neighboring countries.

Methods/Basis for Measuring Baseline of Bangladesh 3. Following methods are the basis for measuring baseline of Bangaldesh:

a. Bangladesh is a deltaic country and almost all of its entire area constitutes a drainage basin. This geological feature of the Bangladesh coastline creates a problem for fixing of the baseline from which the maritime zone is measured.

b. The rules for the drawing of straight baseline are provided for in Article 7 of UNCLOS-III which states that appropriate points may be selected along the furthest seaward extent of the low water line. Bangladesh has drawn straight baseline under this article considering the depth criteria which was very unique but was not adopted by any other countries. Total 8 points are selected for setting the baseline. The line appears to follow the course of the 10 fathom line through those coordinates the baseline is measured.

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Q.17 Describe various kinds of Baselines in picto-graphical details.

ANSWER

Various Kinds of Baselines 1. Baselines are determined by the following methods:

a. Low water line or the normal baseline.

b. Straight baseline.

c. Unstable coastline.

d. River mouths.

e. Bays and Gulfs.

f. Historic bay.

g. Low tide elevation.

h. Estuary

j. Reefs.

k. Harbors works.

l. Rock/Islands.

m. Roadsteads.

Low Water Line or Normal Baseline 1. Unless special rules apply (Except where otherwise provided in UNCLOS), the normal baseline for measuring the breadth of the territorial sea is the low water line along the coast as marked on large scale charts officially recognized by the coastal State. High water level

Low water level

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Straight Baseline - How straight baseline is drawn? (following 6 points) 1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baseline joining appropriate points may be adopted in drawing baseline from which the breadth of the territorial sea is measured.

Deeply indented

2. Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with UNCLOS. 3. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to land domain to be subject to the regime of internal waters. 4. Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition. 5. Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage. 6. The system of straight baselines may not be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone.

Baseline

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Unstable Coast Line 1. Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with UNCLOS.

Unstable coastline

River Mouths 1. If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between the points on the low water line of its banks. If a river enters the sea via estuaries (where there is tidal flow) then the baseline may be formed by the provisions of bay theory. Again if the river mouth flows through a delta, then the baseline may be formed by low water mark or by straight baseline. River mouth Bays and Gulfs 1. The straight line drawn at / (across) the mouth of a bay or gulf at low tide is the baseline, provided:

a. The area of the locked water within the bay is greater than the area of a semi circle whose diameter is equal to the length of the bay mouth. b. If the bay has several mouths due to island in between, same formula applies with the only difference is, the diameter of the semi circle is taken as the summation of the lengths of all mouths.

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24nm

>24nm

2. If any way the locked water area is smaller than the semicircle area then this formula does not apply.

Not applicable Applicable

3. However the bay mouth cannot exceed 24 NM. If the bay mouth is more than 24 NM then a closing line which makes 24 NM and the semi circle of 24 NM diameters has an area less than the locked water within that 24 NM line, will be considered as baseline. Two examples are given below:

a.

6NM 6NM 12NM 6+6+12+=24 NM. This case can be taken as base line if it is more than 24 NM then cannot be taken as base line. b. 24Nm22

24NM line is the baseline but 28 NM line is not the baseline.

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Historic Bay 1. The theory of semi circle and 24 NM enclosure line rule does not apply to historic bays. To meet the international standard for establishing a claim to a historic bay, a nation must demonstrates the open of the bay effective, long-terms and condition of authority over the bay and other foreign nations must agree the authority exercised by that nation. Low Tide Elevation 1. A low tide elevation is a naturally formed area of land which is surrounded by and above waters at low tide but submerged at high tide. Straight baselines are generally not drawn from low tide elevations unless there is any permanent structure like light house or similar installations. Where a low tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. 2. Where a low tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea.

Estuaries 1. An estuary is a partly enclosed coastal body of water with one or more rivers or streams flowing into it, and with a free connection to the open sea. 2. If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between the points on the low water line of its banks. If a river enters the sea via estuaries (where there is tidal flow) then the baseline may be formed by the provisions of bay theory. Again if the river mouth flows through a delta, then the baseline may be formed by low water mark or by straight baseline.

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Reefs 1. In the case of island situated on atolls (ring shaped islands) or of islands having fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward low-water line of the reef, as shown by the appropriate symbol on charts officially recognized by the coastal State. Drying Reefs 1. Drying reefs means an area of reef exposed at low tide. Rock/Islands/Regime of Island 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. Island will have TS, CZ, EEZ and CS of its own, similar to land in accordance with UNCLOS. Rocks, which cannot sustain human habitation or economic life of their own, shall not be considered as island and therefore will have no EEZ or continental shelf of its own. Harbor Work/Ports/Harbors

1. For the purpose of delimiting the territorial sea, the outermost permanent harbor works that form an integral part of the harbor are regarded as a forming part of the coast. Here baselines are drawn as the low water line. Example of harbor works are, jetties, break waters etc. Off-shore installations and artificial islands shall not be considered as permanent harbor works. Roadsteads 1. Roadsteads which are normally used for the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea.

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Q.18 How does Bangladesh determine her territorial water?

ANSWER

1. According to the Bangladesh Territorial Waters and Maritime Zones Act 1974 Bangladesh decided the territorial water under the following conditions:

a. The government may declare the limits of the territorial water beyond the land territory and internal water of Bangladesh which shall be the territorial waters of Bangladesh specifying 12 NM from the baseline:

(1) From which such limits shall be measured.

(2) The waters on the landward side of which shall form part of the internal waters of Bangladesh.

(3) Since the breadth of the territorial sea is relatively narrow, sufficient accuracy normally is obtained by plotting the limits directly on a chart.

Q.19 How Delimitation of the Exclusive Economic Zone between States with opposite or adjacent coasts to be done?

ANSWER

1. The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to the Statute of the International Court of Justice, in order to achieve an equitable solution. 2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for settlement of dispute. 3. (Pending agreement as provided for in paragraph 1,) The States concerned (, in a spirit of understanding and cooperation,) shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. 4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the EEZ shall be determined in accordance with the provisions of that agreement.

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Q.20 How delimitation of the territorial sea to be done between States with opposite or adjacent coasts?

ANSWER Delimitation of Territorial Sea Between States with Opposite or Adjacent Coasts 1. Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith. Q.21 How Delimitation of the continental shelf between States with opposite or adjacent coasts to be done? - 94, 98

ANSWER

1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. 2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to procedures provided for settlement of dispute under UNCLOS. 3. (Pending agreement as provided for in paragraph 1,) The States concerned, (in a spirit of understanding and cooperation,) shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. 4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.

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Q.22 What is passage and innocent passage? When passage shall be considered not innocent?

ANSWER Passage - 00, 03 1. Passage means navigation through the territorial sea for the purpose of:

a. Traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters, or b. Proceeding to or from internal waters or a call at such roadstead or port facility.

2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress. Innocent Passage - 94 -96, 00-03 1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with UNCLOS and with other rules of international law. 2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

a. Any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations.

b. The loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of coastal State.

c. Any exercise or practice with weapons of any kind.

d. Any fishing activities.

e. The carrying out of research or survey activities.

f. The launching, landing or taking on board of any aircraft.

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g. The launching, landing or taking on board of any military device.

h. Any act aimed at collecting information to the prejudice of the defence or security of the coastal State.

j. Any act of propaganda aimed at affecting defence or security of coastal State.

k. Any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State.

l. Any act of willful and serious pollution contrary to this Convention.

m. Any other activity not having a direct bearing on passage.

Q.23 What rights do coastal State have in making rules regarding innocent passage?

ANSWER Laws and Regulations of the Coastal State relating to Innocent Passage 1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:

a. The prevention of infringement of the fisheries laws and regulations of the coastal State.

b. The prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.

c. The preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof.

d. The conservation of the living resources of the sea.

e. The protection of cables and pipelines.

f. Marine scientific research and hydrographic surveys.

g. The safety of navigation and the regulation of maritime traffic.

h. The protection of navigational aids and facilities and other facilities or installations.

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2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards. 3. The coastal State shall give due publicity to all such laws and regulations. 4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea. Q.24 On what accounts the coastal State can suspend innocent passage and up to what time?

ANSWER Suspension of Innocent Passage 1. The coastal State may suspend temporarily in specified areas of its territorial sea, the innocent passage of foreign ships if:

a. Such suspension is without discrimination in form or in fact among foreign ships.

b. Such suspension is essential for the protection of its security, including weapon exercises.

c. Such suspension takes effect only after having been duly published.

Q.25 What is transit Passage? What are the rights of other states relating to such passage? What is the duty of States bordering States?

ANSWER

Transit Passage - 94, 96, 98, 98 1. Transit passage means the exercise in accordance with this part of the 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. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State.

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Right of other States during Transit Passage 1. 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 exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics. Duties of States Bordering Straits 1. States bordering straits shall not hamper transit passage and shall give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge. There shall be no suspension of transit passage. Q.26 What are the duties of a ship or aircraft while transiting passage through an International Strait?

ANSWER

Duties of Ships and Aircrafts during Transit Passage - 98, 99 1. Ships and aircraft, while exercising the right of transit passage, shall:

a. Proceed without delay through or over the strait.

b. Refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations.

c. Refrain from any activities other than those incidents to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress.

d. Comply with other relevant provisions of this Part.

2. Ships in transit passage shall:

a. Comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea.

b. Comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships.

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3. Aircraft in transit passage shall:

a. Observe the Rules of the Air established by the International Civil Aviation Organization as they apply to civil aircraft; state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation.

b. At all times monitor the radio frequency assigned by the competent internationally designated air traffic control authority or the appropriate international distress radio frequency.

Q.27 What is Hot Pursuit? Describe ‘Right of Hot Pursuit’. - 98, 00-03

ANSWER

Hot Pursuit 1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. Right of Hot Pursuit - 98, 00-03

1. The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive economic zone or on the continental shelf, including safety zones around continental shelf installations.

2. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State.

3. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued or one of its boats or other craft working as a team and using the ship pursued as a mother ship is within the limits of the territorial sea, or, as the case may be, within the contiguous zone or the exclusive economic zone or above the continental shelf. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship.

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4. The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.

5. The release of a ship arrested within the jurisdiction of a State and escorted to a port of that State for the purposes of an inquiry before the competent authorities may not be claimed solely on the ground that the ship, in the course of its voyage, was escorted across a portion of the exclusive economic zone or the high seas, if the circumstances rendered this necessary.

6. Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained.

Q.28 Define Warships. What action a coastal State may take if a warship does not comply with its rules and regulations?

ANSWER Warships (Art 29, 30) - 95 1. For the purposes of this Convention, "Warship" means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.

Non-compliance by Warships with the Laws and Regulations of the Coastal State 2. If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, coastal State may require it to leave the TS immediately.

Responsibility of Flag State for Damage caused by Warship or Government Ship 3. The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law.

Immunities of Warships and other Government Ships

1. With such exceptions as are contained in paragraph 2 and 3, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes.

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Q.29 What is the specific legal regime of the exclusive economic zone? Do we have any authority to punish any foreign ship illegally entering into our EEZ for fishing or exploration? - 96

ANSWER

Specific Legal Regime of the Exclusive Economic Zone - 94, 95, 96

1. The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime (established in this Part), under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.

Authority to Punish any Foreign Ship Illegally Entering into Our EEZ

1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the natural resources in the EEZ, take such measures, including boarding, inspection, arrest and judicial proceeding, as may be necessary to ensure compliances with the laws and regulations adopted by it in conformity with UNCLOS.

2. Coastal State penalties for violations of fishery laws and regulations in the EEZ may not include imprisonment in the absence of the country by the States concerned or any form of corporal punishment. In case of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State of the action taken and of any penalty subsequently imposed. Q.30 What should be the basis of conflict resolution regarding the attribution of rights and Jurisdictions in the EEZ?

ANSWER

Basis for the Resolution of Conflicts Regarding the Attribution of Rights and Jurisdiction in the EEZ 1. In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity1 and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.

1 a. fairness. b. principles of justice used to correct or supplement the law. [Latin aequitas: related to equal]

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Q.31 What right other State has on a coastal State’s EEZ?

ANSWER Rights and Duties of other States in the EEZ - 00, 01, 03

1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention:

a. The freedoms of navigation and overflight.

b. The laying of submarine cables and pipelines, and

c. Other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

2. In exercising their rights and performing their duties under this Convention in the EEZ, states shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with relevant part of UNCLOS. Q.32 Discuss the rights, jurisdiction and duties of a coastal State in EEZ.

ANSWER The Rights, Jurisdiction and Duties of a Coastal State in EEZ - 94, 95, 98-03

1. In the exclusive economic zone, the coastal State (like Bangladesh) has:

a. 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.

b. Jurisdiction as provided for in the relevant provisions of this Convention with regard to:

(1) The establishment and use of artificial islands, installations and structures.

(2) Marine scientific research.

(3) The protection and preservation of the marine environment.

c. Other rights and duties provided for in UNCLOS.

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2. In exercising its rights and performing its duties under this Convention in the EEZ, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.

Q.33 What rights a coastal State has over its contiguous zone? - 94, 99, 03

ANSWER

1. The coastal State may exercise the control necessary to:

a. Prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea. b. Punish infringement of the above laws and regulations committed within its territory or territorial sea.

Q.34 What rights a coastal State has over her continental shelf? What rights other States have over it?

ANSWER Rights of the coastal State over the Continental Shelf - 00 1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2. The rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. 3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. 4. The natural resources referred to in this part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species. Drilling on the Continental Shelf 1. The coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes.

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Rights of other States over Continental Shelf and Legal status of Superjacent Waters and Air Space 1. The rights of the coastal State over the continental shelf do not affect the legal status of superjacent waters or of the air space above those waters. 2. The exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedom of other States as provided for in this convention. Q.35 What is the right and jurisdiction of coastal State to construct Artificial Islands, Installations and Structures in the EEZ?

ANSWER

Right and Jurisdiction of CS to Construct Artificial Islands, Installations and Structures in the EEZ 1. In the EEZ, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of:

a. Artificial islands.

b. Installations and structures for (the purposes provided for in article 56 and) other economic purposes.

c. Installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.

2. The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations. 3. Due notice must be given of the construction of such artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained. Any installations or structures which are abandoned or disused shall be removed to ensure safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organization. Such removal shall also have due regard to fishing, the protection of the marine environment and the rights and duties of other States. Appropriate publicity shall be given to the depth, position and dimensions of any installations or structures not entirely removed.

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4. The coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures. 5. The breadth of the safety zones shall be determined by the coastal State, taking into account applicable international standards. Such zones shall be designed to ensure that they are reasonably related to the nature and function of the artificial islands, installations or structures, and shall not exceed a distance of 500 metres around them, measured from each point of their outer edge, except as authorized by generally accepted international standards or as recommended by the competent international organization. Due notice shall be given of the extent of safety zones. 6. All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones. 7. Artificial islands, installations and structures and the safety zones around them may NOT be established where interference may be caused to the use of recognized sea lanes essential to international navigation. 8. Artificial islands, installations and structures DO NOT possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf. Q.36 How a coastal State is responsible for conservation of the living resources of her EEZ?

ANSWER

Conservation of the Living Resources of EEZ (Article 61) 1. The coastal State shall determine the allowable catch of the living resources in its exclusive economic zone. 2. The coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the EEZ is NOT endangered by over-exploitation. As appropriate, the coastal State and competent international organizations, whether sub-regional, regional or global, shall cooperate to this end. 3. Such measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as

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qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global. 4. In taking such measures the coastal State shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened. 5. Available scientific information, catch and fishing effort statistics and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned, including States whose nationals are allowed to fish in the exclusive economic zone.

Q.37 What rights a land-locked State like Nepal and Bhutan has under LOS convention of 1982 in the EEZ of a coastal State?

ANSWER

Rights of Land-Locked States in the EEZ - 94, 95 1. Land-locked States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same sub-region or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of (relevant articles of) UNCLOS. 2. The terms and modalities of such participation shall be established by the States concerned through bilateral, sub-regional or regional agreements taking into account, inter alia2:

a. The need to avoid effects detrimental to fishing communities or fishing industries of the coastal State. b. The extent to which the land-locked State (, in accordance with the provisions of relevant articles of UNCLOS,) is participating or is entitled to participate under existing bilateral, sub-regional or regional agreements in the exploitation of living resources of the EEZ of other coastal States.

2 Among other things. [Latin]

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c. The extent to which other land-locked States and geographically disadvantaged States are participating in the exploitation of the living resources of the EEZ of the coastal State and the consequent need to avoid a particular burden for any single coastal State or a part of it. d. The nutritional needs of the populations of the respective States.

3. When the harvesting capacity of a coastal State approaches a point which would enable it to harvest the entire allowable catch of the living resources in its exclusive economic zone, the coastal State and other States concerned shall cooperate in the establishment of equitable arrangements on a bilateral, sub regional or regional basis to allow for participation of developing land-locked States of the same sub region or region in the exploitation of the living resources of the exclusive economic zones of coastal States of the sub region or region, as may be appropriate in the circumstances and on terms satisfactory to all parties. In the implementation of this provision the factors mentioned in paragraph 2 shall also be taken into account. 4. Developed land-locked States shall, under the provisions of this article, be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same sub region or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone. 5. The above provisions are without prejudice to arrangements agreed upon in sub regions or regions where the coastal States may grant to land-locked States of the same sub region or region equal or preferential rights for the exploitation of the living resources in the exclusive economic zones. Q.38 What measures should a State take for the conservation of the living resources in the high seas?

ANSWER

Conservation of the Living Resources of the High Seas -98 1. In determining the allowable catch and establishing other conservation measures for the living resources in the high seas, States shall:

a. Take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable

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yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global. b. Take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.

2. Available scientific information, catch and fishing effort statistics and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether sub-regional, regional or global, where appropriate and with participation by all States concerned. 3. States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against fishermen of any State. Q.39 What rights a geographically disadvantaged State like Nepal and Bhutan has under LOS convention of 1982 in the EEZ of a coastal State?

ANSWER

Rights of Geographically Disadvantaged States - 95 1. Geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the EEZ of coastal States of the same sub-region or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of UNCLOS. 2. For the purposes of UNCLOS, "geographically disadvantaged States" means coastal States, including States bordering enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other States in the sub-region or region for adequate supplies of fish for the nutritional purposes of their populations or parts thereof, and coastal States which can claim no EEZ of their own. 3. The terms and modalities of such participation shall be established by the States concerned through bilateral, subregional or regional agreements taking into account, inter alia:

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a. The need to avoid effects detrimental to fishing communities or fishing industries of the coastal State. b. The extent to which the geographically disadvantaged State, in accordance with the provisions of UNCLOS, is participating or is entitled to participate under existing bilateral, subregional or regional agreements in the exploitation of living resources of the exclusive economic zones of other coastal States.

c. The extent to which other geographically disadvantaged States and land-locked States are participating in the exploitation of the living resources of the exclusive economic zone of the coastal State and the consequent need to avoid a particular burden for any single coastal State or a part of it.

d. The nutritional needs of the populations of the respective States.

(…Thereafter may add para 3and 4 of last question.) Q.40 Define High seas. What are the freedoms of High Seas? On which principle our fishing fleets do fishing at High Sea?

ANSWER

High Seas - 99

1. 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 are called High Seas. Freedom of the High Seas (What rights do Nepal has on High Sea?) 1. The high seas are open to all States, whether coastal or land-locked. Freedom of high seas is exercised under the conditions laid down by UNCLOS and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:

a. Freedom of navigation.

b. Freedom of overflight.

c. Freedom to lay submarine cables and pipelines, subject to Part VI.

d. Freedom to construct artificial islands and other installations permitted under international law, subject to Part VI.

e. Freedom of fishing, subject to the conditions laid down in section 2.

f. Freedom of scientific research, subject to Parts VI and XIII.

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2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area. Above all the high seas shall be reserved for peaceful purposes.

Right to Fish on the High Seas 1. All states have the right for their nationals to engage in fishing on the high seas subject to:

a. Their treaty obligations.

b. The rights and duties as well as the interests of coastal States.

c. The provisions of UNCLOS.

Q.41 What is unauthorized broadcasting from the high seas? How unauthorized broadcasting can be prosecuted before the Court?

ANSWER

Unauthorized Broadcasting from the High Seas 1. All States shall cooperate in the suppression of unauthorized broadcasting from the high seas. 2. For the purposes of this Convention, "unauthorized broadcasting" means the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulations, but excluding the transmission of distress calls. 3. Any person engaged in unauthorized broadcasting may be prosecuted before the court of:

a. The flag State of the ship.

b. The State of registry of the installation.

c. The State of which the person is a national.

d. Any State where the transmissions can be received, or

e. Any State where authorized radio communication is suffering interference.

4. On the high seas, a State having jurisdiction in accordance with paragraph 3 may, in conformity with article 110 UNCLOS, arrest any person or ship engaged in unauthorized broadcasting and seize the broadcasting apparatus.

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Q.42 What is Flag State? What is ‘Nationality of Ship’ and ‘Ship without Nationality’? What are the duties of a flag state?

ANSWER

Flag State 1. According to UNCLOS, ships shall sail under the flag of one state only and that one state is her ‘Flag State’. Ships shall be subject to the state’s exclusive jurisdiction on the high sea. Nationality of Ships 1. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ship without Nationality 1. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. Duties of the flag State 1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. 2. In particular every State shall:

a. Maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size, and

b. Assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.

3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to:

a. The construction, equipment and seaworthiness of ships.

b. The manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments.

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c. The use of signals, the maintenance of communications and the prevention of collisions.

4. Such measures shall include those necessary to ensure:

a. That each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship.

b. That each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and number for the type, size, machinery and equipment of the ship.

c. That the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio.

5. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation. Q.43 Write short note on ‘Piracy’ and ‘Pirate Ship or Aircraft’. Who may siege a pirate ship/aircraft at high sea?

ANSWER

Piracy- 96 1. Piracy consists of any of the following acts:

a. Any illegal acts of violence or detention, or any act of depredation3, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(1) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft.

(2) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.

b. Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft.

3 n. despoiling, ravaging, robbing. [Latin: related to prey]

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c. Any act of inciting or of intentionally facilitating an act described in subparagraph a or b.

Pirate Ship or Aircraft 1. A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts of piracy. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act. Seizure of a Pirate Ship or Aircraft 1. On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. Ships and Aircraft which are Entitled to Seize on Account of Piracy 1. A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. 2. Any State which has responsible grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic, drugs or such substances may request the co-operation of any other State to suppress such traffic. Q.44 On what occasions the coastal State may exercise Criminal jurisdiction on board a foreign ship through its territorial sea?

ANSWER

Occasions for Exercising Criminal Jurisdiction (Art 27) - 95 1. The criminal jurisdiction of the coastal State 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:

a. If the consequences of the crime extend to the coastal State.

b. If the crime is of a kind to disturb the peace of the country or the good order of the territorial sea.

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c. If 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, or

d. If such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

2. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters. Q.45 On what occasions a foreign ship can be boarded (visited) at high seas? - 01

ANSWER Right of Visit (You may go through paragraph 2 – 5 as additional study) 1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity, is not justified in boarding it unless there is reasonable ground for suspecting that:

a. The ship is engaged in piracy.

b. The ship is engaged in the slave trade.

c. The ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction.

d. The ship is without nationality, or

e. Though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

4. These provisions apply mutatis mutandis4 to military aircraft.

5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service. 4 adv. (in comparing cases) making the necessary alterations. [Latin]

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Q.46 Describe various Sea Zones in accordance with the LOS convention of 1982 and discuss the rights and obligations of a coastal State in each zone separately. -97 Q. What is Continental Shelf? How a coastal State should establish the continental margin?

ANSWER Introduction 1. The Oceans of the world traditionally have been classified under the broad heading of:

a. Internal waters. b. Territorial seas, and c. High seas.

2. In recent year new concept of exclusive economic zone and archipelagic water has been introduced to expand jurisdictional claims of the coastal and island States. Maritime/Sea Zone 3. Under UNCLOS III waters of the Oceans have been divided into six distinct zones for a coastal or island State. These are:

a. Internal Waters. b. Archipelagos Waters. c. Territorial Seas. d. Contiguous Zone. e. Excessive Economic Zone (EEZ), and f. Continental Shelf.

Internal Waters 1. Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. 2. Where the establishment of a straight has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in UNCLOS shall exist in those waters.

3. The State expresses her full sovereignty over internal waters. Archipelagic Water 4. An Archipelagic State is a State which consists of one or more than one group of islands, for example, Indonesia is an archipelagic nation. Such nations may draw

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straight Archipelagic baseline joining the outer most points of their outer most islands and drying reefs of the archipelago provided that within such baselines are included the main islands and the ratio of water to land within the baselines is between 1:1 to 9:1. The water enclosed within the archipelagos baselines are called Archipelagic waters. The Territorial sea for an archipelagic nation is measured seaward from archipelagic baseline.

5. Ships of other nations have the right of innocent passage through this area. Hence the maintenance of law and order in this area become a matter of international concerned.

6. "Archipelagic State" means a State constituted wholly by one or more archipelagos and may include other islands.

7. "Archipelago" means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely inter-related that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such. - 94, 95 Archipelagic Baselines 8. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 9. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 10. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. 11. Such baselines shall not be drawn to and from low-tide elevations, unless light houses or similar installations, which are permanently above sea level, have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island. 12. The system of such baselines shall not be applied by an archipelagic State in such a manner as to cut off from the high seas or the exclusive economic zone or the territorial sea of another State.

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Territorial Waters 13. The territorial sea/territorial waters can be extended to a distance of 12 NM from the baseline. 14. The area within this limit is also a part of the sovereign territory of the State. A State does not have the right to the resources in another State’s territorial waters. Administrative control and law enforcement as required is provided by the coastal State of the territorial waters. Foreign vessels do have the right of innocent passage through the territorial water. Few Exceptions on Territorial Water 15. Islands. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. Island will have TS, CZ, EEZ and CS of its own, similar to land in accordance with UNCLOS. 16. Rocks. Rocks, which cannot sustain human habitation or economic life of their own, shall not be considered as island and therefore will have no EEZ or CS of its own. 17. Low tide Elevation. A low tide elevation is a naturally formed area of land which is surrounded by and above waters at low tide but submerged at high tide (Straight baselines are generally not drawn from low tide elevations unless there is any permanent structure like light house or similar installations). Where a low tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. Where a low tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea. Contiguous Zone - 94, 99, 03 18. This is a zone contiguous/touching to the territorial sea of a coastal State, which may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. 19. The zone is not a part of the territorial waters so the State does not possess any right and responsibility over this zone, but the State is permitted to extend its jurisdiction to cover the zone for the purpose of customs, fiscal, legislation, immigrations and public health. The zone can also be used by the State to carryout operations for prevention of smuggling, drug and illegal weapons trafficking, illegal immigration and similar acts defined as illegal in the State concerned.

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Exclusive Economic Zone 20. The exclusive economic zone is resource related zone which is extended beyond and adjacent to the territorial sea up to 200 nm from the baseline from where the breadth of territorial sea is measured. 21. Its main purpose is economic i,e, exploration, exploitation, management and conservation of natural resources of water (from current and wind forces), sea bed and subsoil of the zone. Coastal or island State of the EEZ has the sovereign right to enforce its law in this area for the purpose of maintaining her economic activities as mentioned above. In addition coastal State or island may exercise jurisdictions in the zone over the establishment and use of artificial islands, installations and structures having economic purposes, over marine scientific researches and over some aspects of marine environment protection. But at the same time this coastal or island State cannot suddenly restrict the exercise of freedom of navigation in the EEZ. Continental Shelf - 94, 95, 99, 00 22. The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 NM from the baselines from which the breadth of the territorial sea is measured where the outer edge of continental margin does not extend up to that distance. 23. Establishing the Continental Margin. The fixed points comprising the line of the outer limits of the continental shelf on the seabed, either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 meter isobath, which is a line connecting the depth of 2,500 meters. Q.47 What do you mean by land locked State? What implications do recently granted transit facilities to Nepal have on regional co-operation in south Asia? - 97

(Attention is drawn on the right of land locked country on the use of Transit Facility/EEZ Resources)

ANSWER

Definitions 1. Land locked State means a State which has no sea coast.

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2. Transit State means a State, with or without a sea coast, situated between a land locked State and the sea, through whose territory, traffic in transit passes. 3. Traffic in transit means transit of persons, baggage, goods and means of transport across the territory of one or more transit States, when the passage across such territory, with or without trans-shipment, warehousing, breaking bulk or change in the mode of transport, is only a portion of a complete journey which begins or terminates within the territory of the land-locked State. 4. Means of transport means:

a. Railway rolling stock, sea, lake and river craft, and road vehicles.

b. Where local conditions so require, porters and pack animals.

5. Land-locked States and transit States may, by agreement between them, include as means of transport pipelines and gas lines and means of transport other than those included in paragraph 4. - 99 Rights of Land locked States/Right of Access to and from the Sea and Freedom of Transit (Art 125) - 98, 99 1. Land-locked States shall have the right of access to and from the sea for the purpose of exercising the rights relating to the freedom of the high seas and the common heritage of mankind. 2. To this end, land-locked States shall enjoy freedom of transit through the territory of transit States by all means of transport.

3. The terms and modalities for exercising freedom of transit shall be agreed between the land-locked States and transit States concerned through bilateral, sub-regional or regional agreements.

4. Transit States, in the exercise of their full sovereignty over their territory, shall have the right to take all measures necessary to ensure that the rights and facilities provided for in this part for land-locked States shall in no way infringe their legitimate interests. Extra Reading 5. Land locked States will not be charged for any customs duties, taxes or any such, for the items trafficking in transit, except any service charge which has been spent or rendered by the transit State. 6. Charges for the means of transport and other services rendered by the transit State to land locked State shall not be higher than the rate of charge prevailing in transit State.

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7. For convenience of traffic in transit, land locked States may be provided with some free zone or custom facilities at entry and exit ports by agreement between lands locked State and the transit State.

8. For providing an improved facility on transport and cargo handling at port for freedom of transit to land locked State new construction, installation or means may be arranged.

9. It is the responsibility of transit State to take appropriate measures to avoid delays and other technical difficulties in trafficking in transit. Competent authority from land locked or/and transit State to be employed to expedite or to eliminate such difficulty.

10. Ships flying flag of land locked State will get all maritime facilities in foreign ports as like those of coastal States.

Q.47a Nepal is a land locked country. Discuss the rights of land locked States. Has she got any right over the Bay of Bengal? State in details. - 94

ANSWER

Rights of Land Locked State (like Nepal) over EEZ/Bay of Bengal 1. Land locked States shall have the right to participate on an equitable basis in exploitation of an appropriate part of the surplus of the living resources of EEZ of the coastal State of the same sub region or region, paying due respect to:

a. The allowable catch of living resources, which are determined by the CS.

b. No match with the coastal State, which has the right of optimum utilization of the living resources in EEZ.

Extra Reading (61, 62, 69, 71 & 72) 2. Every coastal State has the rights to harvest the living resources in the EEZ. If any area remains surplus for harvesting by the coastal State, the land locked State can harvest this surplus area for living resources provided that there is the existence of living resource in EEZ and the fishing community is not affected. At the same time this right to land locked State does not become objectionable to other neighboring coastal State. The above condition is also applicable to the geographically disadvantages States. 3. However, if the economy and livelihood of a coastal State is greatly dependent on the exploitation of the living resources of her EEZ, the above right for land locked States and geographically disadvantages State will not be applicable. 4. The right mentioned above is exclusively for the land locked State or geographically disadvantages States. These rights cannot be transferred to a 3rd State.

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Q.48 What is resource and mineral? What are the general principles to conduct marine scientific research? - 96

ANSWER

Definition

1. "Resources" means all solid, liquid or gaseous mineral resources in situ5 in the Area at or beneath the seabed, including poly-metallic nodules6. 2. Resources, when recovered from the Area, are referred to as "minerals". Right to Conduct Marine Scientific Research - 00 3. All States, irrespective of their geographical location, and competent international organizations have the right to conduct marine scientific research subject to the rights and duties of other States as provided for in this Convention. General Principles for the Conduct of Marine Scientific Research - 00 4. In the conduct of marine scientific research the following principles shall apply:

a. Marine sc research shall be conducted exclusively for peaceful purposes. b. Marine scientific research shall be conducted with appropriate scientific methods and means compatible with this Convention. c. Marine scientific research shall not unjustifiably interfere with other legitimate uses of the sea compatible with this Convention and shall be duly respected in the course of such uses. d. Marine scientific research shall be conducted in compliance with all relevant regulations adopted in conformity with this Convention including those for the protection and preservation of the marine environment. e. Other Principles.

(1) Coastal States, in the exercise of their sovereignty, have the exclusive right to regulate, authorize and conduct marine scientific research in their territorial sea. Marine scientific research in the TS shall be conducted only with the express consent of and under the conditions set forth by the coastal State. (2) Coastal States, in the exercise of their jurisdiction, have the right to regulate, authorize and conduct marine scientific research in their exclusive economic zone and on their continental shelf in accordance with the relevant provisions of this Convention. Marine scientific research in the EEZ and on the Continental shelf shall be conducted with the consent of the coastal State.

5 adv. In its proper or original place. [Latin] 6 one of the resources of Area consisting of any deposit or accretion of nodules, on or just below the surface of deep seabed, which contain mg, ni, cblt and cpr.

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Q.49 What do you understand by "Pollution of the marine environment"? What measures a Coastal State may take to prevent, reduce and control pollution of the marine environment? - 94, 96, 99

ANSWER Pollution of the Marine Environment - 95, 96, 98, 99 1. Pollution of the marine environment means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities. Measures to Prevent, Reduce and Control Pollution of the Marine Environment 1. States shall take, individually or jointly as appropriate, all measures consistent with UNCLOS that are necessary to prevent, reduce and control pollution of the marine environment from any source, (using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection).

2. States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with UNCLOS.

3. The measures taken shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent:

a. Release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through atmosphere or by dumping.

b. Pollution from vessels, (in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels).

c. Pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices.

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d. Pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices.

4. In taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with UNCLOS.

5. The measures taken shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. Q.50 What do you mean by Dumping? What activities at sea are not included in the Dumping? What binding coastal State has to prevent to reduce and to control of marine environment by Dumping?

ANSWER

1. Dumping means: - 00

a. Any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea. b. Any deliberate disposal of vessels, aircraft, platforms or other man-made structures at sea.

2. Dumping does not include:

a. 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 at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or structures.

b. Placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of this Convention.

Measures to Prevent, Reduce and to Control of Marine Environment by Dumping 1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment by dumping.

2. States shall take other measures as may be necessary to prevent, reduce and control such pollution.

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3. Such laws, regulations and measures shall ensure that dumping is not carried out without the permission of the competent authorities of States. 4. States, acting especially through competent international organizations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary.

5. Dumping within the territorial sea and the exclusive economic zone or onto the continental shelf shall not be carried out without the express prior approval of the coastal State, which has the right to permit, regulate and control such dumping after due consideration of the matter with other States which by reason of their geographical situation may be adversely affected thereby.

6. National laws, regulations and measures shall be no less effective in preventing, reducing and controlling such pollution than the global rules and standards. Q.51 A vessel transiting from India to Myanmar through Bangladesh’s territorial waters, with no intention of stopping in a Bangladeshi port. The vessel intentionally pumps out bilges (along with oil and other toxic chemicals) into water 19 miles from the Bangladesh’s coast in a sensitive marine wildlife sanctuary. Under International Law, does Bangladesh have jurisdiction? Why or why not?

ANSWER

Preservation of Marine Environment 1. As per UNCLOS-III Art 56 (EEZ) paragraph 1b, Coastal state has the jurisdiction as provided for in the relevant provisions of this convention with regard to the protection and preservation of the marine environments. The Indian vessel was 19 from BD coast, so she was within the EEZ area. And she was pumping out bilges along with oil and other toxic chemicals which is be prevent under Art 194 (Measure to prevent, reduce and control pollution of the marine environment) 3a. Q.52 Write short note on Enclosed or Semi Enclosed Sea.

ANSWER Enclosed or Semi Enclosed Sea - 96, 99, 03 1. "Enclosed or semi-enclosed sea" means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and EEZ of two or more coastal States.

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Q.53 Does Bangladesh Territorial Waters and Maritime Zones Act 1974 have any conflict with UNCLOS III? Show, how? What is your suggestion for its solution?

ANSWER

Conflict of the Territorial Waters and Maritime Zones Act 1974 with UNCLOS III 1. Yes, there are conflicts with UNCLOS III. Conflicts are mentioned below:

a. Depth criteria are not in conformity with provisions of these laws. b. Till 1982, when the UNCLOS III was adopted, Bangladesh could not get the concept of depth criteria accepted by the world community or our neighbors.

c. Moreover, being a deltaic country Bangladesh adopted a method of geographical coordinates for determining the baseline and nothing is mentioned for the shifting of such baseline in the Territorial Waters and Maritime Zone Act of Bangladesh.

2. Suggestions for solution:

a. It is difficult to recommend any precise principles for the delimitation of maritime boundary as we observed in recent judgments. Following may be considered:

(1) A review on the act may be carried out in conformity with provisions of the law of the sea.

(2) Bangladesh may claim more Continental Shelf (during proceeding with India) than what is declared in taking advantages of new method of calculation of Continental Shelf under UNCLOS III.

(3) As the depth criteria is not accepted internationally, so we have to revise it in accordance with the provisions of UNCOLS III.

(4) The law of equity may be followed to solve the dispute with India.

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Q.54 Describe the mechanism of dispute settlement in light of UNCLOS III.

ANSWER

Obligation to Settle Disputes by Peaceful Means

1. States Parties shall settle any dispute between them concerning the interpretation or application of UNCLOS by peaceful means in accordance with relevant Article of the Charter of the United Nations and shall seek a solution by the means indicated in Charter.

Settlement of Disputes by any Peaceful Means chosen by the Parties

1. States Parties have the right to agree at any time to settle a dispute between them concerning the interpretation or application of UNCLOS by any peaceful means of their own choice.

Procedure where no Settlement has been Reached by the Parties

1. If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.

2. If the parties have also agreed on a time-limit, paragraph 1 applies only upon the expiration of that time-limit.

EXTRA READING

1. A state party, which is a party to a dispute, may invite the other party or parties to submit the dispute to conciliation procedure. If the invitation is accepted and if the parties agree upon the conciliation procedure to be applied, any party may submit the dispute to that procedure. The conciliation commission, after reviewing both parties’ claim, will submit a report to the UN secretary general mentioning whether a settlement is made or not.

2. If the invitation is not accepted or the parties do not agree upon the procedure, the conciliation proceeding shall be deemed to be terminated.

3. The state parties may choose one or more of the following means for the settlement of disputes:

a. The international tribunal for the law of the sea (ITLOS). b. The international court of justice (ICJ). c. An arbitral tribunal. d. A special arbitral tribunal.

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4. If the parties to a dispute have accepted the same procedure for the settlement of dispute, it may be submitted only to that procedure, unless the parties otherwise agree. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration unless the parties otherwise agree.

Obligations under General, Regional or Bilateral Agreements 5. If the states parties which are parties to a dispute concerning the interpretation or application of this convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of procedures provided for in this part, unless the parties to dispute otherwise agree. Jurisdiction

6. A court or tribunal shall have jurisdiction over any dispute concerning the interpretation or application of UNCLOS, which is submitted to it.

7. The Sea Bed Disputes Chamber of the ITOL, and any other chamber or arbitral shall have jurisdiction in any matter which is submitted to it.

8. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.

Experts 9. In any dispute involving scientific or technical matters, a court or tribunal exercising jurisdiction may select in consultation with the parties no fewer than two scientific or technical expert chosen preferably from the relevant list prepared in accordance with UNCLOS to sit with the court or tribunal but without the right to vote. Provisional Measures 10. The court or tribunal may prescribe any provisional measure, which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment pending the final decision. Finality and binding force of decisions 11. Any decision rendered by a court or tribunal shall be final and shall be complied with by all the parties to the dispute. Any such decision shall have no binding force except between the parties and in respect of that particular dispute.

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Q.55 Discuss the genesis of UNCLOS III with particular reference to success and failure of UNCLOS I & II. What are the new issues incorporated in UNCLOS III? Q. UNCLOS III protected the rights and privileges of all developed nations - if so, comment. Did Bangladesh ratify UNCLOS III? Q. What is Sea Bed Dispute Chamber? What is the purpose of creating a Sea Bed Authority under the LOS convention of 1982? How the resources of the High Seas can be exploited under the above convention? Give your views also.

ANSWER

Introduction 1. The Law of the Sea is perhaps the classic example of a system of regulations, which is based on traditional demand of all seafarer nations and practiced for centuries. Previously, naval power used to dominate the international relationship between those seafaring nations. It was 18th century when a systematic regulation was first drawn where the right of a coastal State to control its maritime belt and the right of all States to make use of high sea was established. 2. By 1930, the international lawyers thought of some specific conventions on the use of sea and air, since these two are the most important media of transportation. At that period the League of Nation as a world body was in existence. Unfortunately, the League of Nations failed to do something on the use of sea. 3. UN came into being in 1945. Soon after the formation of United Nations, the International Law Commission (ILC) of UN General Assembly took the task of codifying the Law of the Sea (LOS). UNCLOS-I 4. International Law Commission prepared draft of 4 conventions on the law of the sea. Those were discussed among the representatives of 87 States at UN conference on the law of the sea (UNCLOS) in Geneva in Feb-April 1958. The Conventions were:

a. Convention on the High Seas (30 Sep 62). b. Convention on the Continental Shelf (10 Jun 1964). c. Conventions on the Territorial Sea and the Contiguous Zone (10 Sep 1964). d. Convention on Fishing and Convention of the Living resources of High Seas (20 Mar 66). These 4 conventions are considered as success of UNCLOS I.

5. The four conventions were adopted by the UN in 1958 and termed as United Nations Conventions on the Law of the Sea (UNCLOS I) 1958. All received sufficient ratification or accessions by states to come into force by 1966.

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Success and Failure of UNCLOS I 6. The 1958 Convention (UNCLOS I) did agree upon the method of measuring the territorial seas and also upon the notion of a Contiguous Zone outside the territorial sea whilst it failed to agree upon:

a. The breath of the Territorial Sea. b. The nature and the breadth of fishery limits.

UNCLOS II 7. To overcome the failure of the first convention, a second convention was held in Geneva in March-April 1960. The convention was attended by 88 States and it was termed as UNCLOS-II. This narrowly failed by 1 vote to adopt a 6-mile Territorial Sea plus a 6-mile Exclusive or Partially Exclusive Fishery Zone for a coastal State. 8. However, the proposals put forwarded at UNCLOS II were subsequently used as the basis of international agreements which is considered as the success of UNCLOS II. Many States of course, did not accept the convention. They considered that the laws should be such that those can bring radical Change in the economy and social condition of the International community. Some of the nations were not happy with the conventions about the extent of Territorial sea. Some States questioned about marine environment, Deep Seabed exploitation and sea pollutions etc. (Successes are: Identified problem of voting principles and generated thoughts to solve the failure of UNCLOS I) 9. International Sea Bed Committee: The developing countries were concerned about the status of the Deep Seabed and Ocean floor beyond the jurisdiction of any nation. It was expectation of all nations to reserve the Deep Sea bed for peaceful purpose and for the benefit of mankind. Some of the nations were not happy with the conventions about the extent of Territorial sea. Some states questioned about marine environment, Deep seabed exploitation, and sea pollutions etc. UNCLOS III 10. After consultation and negotiation between more than150 nations, the Sea Bed Committee worked out a draft treaty and placed it before the UN General Assembly in 1982. The treaty came into being on 10 August 1982 as UNCLOS III, where 119 nations including Bangladesh signed on that date. Forty other nations signed the treaty within next 2 years time that is a total of 159 nations signed the treaty. Again some confusion and disagreement still prevailed in the treaty, which took about 12 years to be resolved. Finally on 16 NOV 94 the UNCLOS III came into being in full swing. 11. Bangladesh has ratified the Convention of Part XI in 27 July 2001.

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12. Successes & failures of UNCLOS III: Consists of nearly 100 terms, 320 Articles and more than 109 articles of its annex. Successes are: Solved issues of UNCLOS I & II, covered peaceful settlement of dispute, recognized ICJ, ITLOS and termed as constitution for the Ocean. Their failures are: Cannot handle activities of lone super power in the unipolar world, Consensus against blockade not achieved, though sea mine issue is addressed but still in dark. In addition, it consists of two international bodies:

a. International Sea Bed Authority. b. International Tribunal for the LOS.

13. International Sea Bed Authority (ISBA). The task of this international body of UNCLOS is to regulate the following:

a. The exploration and exploitation of seabed, which is beyond the limit of any nation’s jurisdiction. b. To safeguard the seabed for the common benefit of the humanity. c. To setup enterprise for exploration.

14. International Tribunal for the LOS. This international body will have a Sea Bed Dispute Chamber to deal with all sort of dispute involving the International Sea Bed area. Problem of UNCLOS-III 15. The problems of UNCLOS III are:

a. Some of the nations were not happy with the conventions about the extent of Territorial sea. b. Some states questioned about marine environment, Deep Seabed exploitation and sea pollutions etc. c. However some developed and industrialized states raised objection about the articles on seabed mining and refused to sign the convention. d. Again some confusion and disagreement still prevailed in the treaty, which took about 12 years to be resolved.

Important Agreements reached at UNCLOS III 16. Followings are some of the important agreements reached at UNCLOS III:

a. Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles. b. Contiguous zone up to 24 nautical miles from the baseline for purposes of enforcement of customs, fiscal, immigration, or sanitary laws. c. Exclusive economic zone up to 200 nautical miles from the baseline for the purposes of exploring and exploiting, conserving and managing the natural

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resources, whether living or non-living, of the waters superjacent to the seabed and of the sea-bed and its subsoil. d. The resources of the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction are the common heritage of mankind. e. An International Seabed Authority will organize, carry out, and control activities associated with the exploitation of the resources of the international seabed. f. A parallel system will be established for exploring and exploiting the international seabed, one involving private and state ventures and the other involving the authority. g. A so-called enterprise will carry out activities in the international seabed for the authority and will be responsible for transporting, processing, and marketing minerals recovered from the international seabed.

Q.56 ‘UNCLOS III is a Constitution for the Ocean’ – Justify with your own argument in logical sequence.

ANSWER The United Nations Conference on the Law of the Sea III 1. On 01 November 1967, Malta's Ambassador to the United Nations, Arvid Pardo, in a speech to the United Nations General Assembly, he spoke of the super power rivalry that was spreading to the oceans, of the pollution that was poisoning the seas, of the conflicting legal claims and their implications for a stable order and of the rich potential that lay on the seabed. Pardo's urging came at a time when many recognized the need for updating the freedom-of-the-seas doctrine. It set in motion a process that spanned 15 years and saw the creation of the United Nations Seabed Committee, the signing of a treaty banning nuclear weapons on the seabed, the adoption of the declaration by the General Assembly that all resources of the seabed beyond the limits of national jurisdiction are the common heritage of mankind. What started as an exercise to regulate the seabed turned into a global diplomatic effort to regulate and write rules for all ocean areas, all uses of the seas and all of its resources. These were some of the factors that led to the convening of the Third United Nations Conference on the Law of the Sea, to write a comprehensive treaty for the oceans.

2. The Conference was convened in New York in 1973. It ended nine years later with the adoption in 1982 of a constitution for the seas - the United Nations Convention on the Law of the Sea. During those nine years, shuttling back and forth between New York and Geneva, representatives of about 160 sovereign States sat down and discussed the issues, bargained and traded national rights and obligations in the course of the marathon negotiations that produced the Convention.

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3. United Nations Convention on the Law of the Sea III is constitution for the Ocean because the major achievement of UNCLOS III can be summarized as follows:

a. Setting Limits. It has established the territorial sea of maximum 12 miles distance from the baseline with complete sovereignty for coastal state with provision of innocent passage for foreign vessel.

b. Navigation. It has created the concept of transit passage for international straight, with the right to passage of warship, submarine and over flight for aircraft.

c. Archipelagic Water. It has legitimized the concept of archipelagic water.

d. Exclusive Economic Zone. It has introduced the concept of EEZ 200 miles where the coastal states shall have exclusive authority to manage the living and nonliving resources but retain the high sea status. Land lock and geographically disadvantageous State have certain right for fishing.

e. Continental Shelf. It has established continental shelf for coastal State up to 200 miles; some cases 350 miles or beyond but legal status of superjacent waters and airspace above would not be affected.

f. The Exploitation Regime. High seas freedom was confirmed but subject to the rights granted concerning the scientific research and construction of the artificial islands.

g. The Question of Universal Participation in the Convention. It was achieved.

h. Marine Environment. The protection of the marine environment ensured.

j. Scientific Research. Broad system for marine scientific research enhanced.

k. Pioneer Investors, Technological Prospects, Deep Seabed Mining and Settlement of Disputes. The Area and resources outside national jurisdiction is declared as the common heritage of mankind and all activities shall be carried out for healthy development of world economy, balanced growth of international trade and promotion of international cooperation for global development particularly of the developing states. For the management of resources in this area an international sea bed authority, with an executive organ named the Enterprise and a comprehensive dispute settlement system for seabed problem has also been incorporated.

4. It is clear that, the adoption of UNCLOS has created a complete guideline regarding the use of maritime resources by individuals, organizations and states all over the world. Thereby it is justified to say that “UNCLOS III is a Constitution for the ocean”.

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Q.57 What do you understand by treaties, International Law & Customary Law?

ANSWER Treaty 1. A treaty is an agreement under international law entered into force by actors in international law, namely States and international organizations. Treaties may also be known as: international agreements, protocols, covenants, conventions, exchanges of letters, exchanges of notes, etc. Regardless of the terminology, all of these international agreements under international law are equally treaties and the rules are the same. Treaties can be loosely compared to contracts: both are means of willing parties assuming obligations among themselves, and a party to either that fails to live up to their obligations can be held liable under international law for that breach. Because of this rule, treaties and statutes can override each other, whichever is latest in time is controlling. International Law 2. International law can refer to three distinct legal disciplines:

a. Public international law concerns the structure and conduct of sovereign states, analogous entities and intergovernmental organizations for instance the United Nations, international maritime law, international criminal law and the Geneva conventions.

b. Private international law or conflict of laws is a set of procedural rules that determines which legal system and which jurisdictions applies to a given dispute. The rules typically apply when a legal dispute has a "foreign" element such as a contract agreed to by parties located in different countries.

c. The law of supranational organizations, which concerns at present regional agreements. The special distinguishing quality is that laws of nation states are held inapplicable when conflicting with a supranational legal system.

Customary Law 3. In law, custom can be described as the established patterns of behavior that can be objectively verified within a particular social setting. Generally, customary law exists where a certain legal practice is observed; the relevant actors consider it to be law. The modern codification of civil law developed out of the customs, expressions of law that developed in particular communities, slowly collected and written down by local jurists. 4. In international law, customary law refers to the law of Nations or the legal norms that have developed through the customary exchanges between States over time,

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whether based on diplomacy or aggression. Some principles of customary law have achieved the force of peremptory norms, which cannot be violated or altered except by a norm of comparable strength. These norms are said to gain their strength from universal acceptance, such as the prohibitions against genocide and slavery. Customary international law can be distinguished from treaty law, which consists of explicit agreements between nations to assume obligations. However, many treaties are attempts to codify pre-existing customary law. 5. Customary law may also be relevant within jurisdictions following another legal tradition. Customary law is also used in some third world countries, such as in Africa, usually used alongside common or civil law. Q.58 Why UNCLOS III adopted ‘Consensus’ as the principal means by which decisions were to be taken in its Rules of Procedure?

ANSWER

UNCLOS III adopted ‘Consensus’ as Principal Means in its Rules of Procedure

1. In late 1973, in third United Nations conference on the law of the sea was convened in accordance with General resolution 3067 (XXVIII) of 16 November 1973, and set about its task with an organizational session. The first order of business was the question of procedure: procedural practices had to be developed which would foster the cohesiveness of the package of the Law of the Sea. Indeed the procedural innovations of the conference were at times quite unique and have no doubt contributed to the progressive development of the treaty making process itself.

2. As a consequence of the deliberations, the conference adopted its rules of procedure. Since the earlier committees has worked on the basis of consensus and as a result of the widely divergent interest on issues of such paramount importance, it was recognized that resort to traditional voting rules would be unsatisfactory as a method for achieving the desired goals. Consensus was therefore adopted as the principal means by which decisions were to be taken. This notion was embodies in the declaration incorporating the gentleman’s agreement, appended to the rules of procedure and provided the context in which the rules themselves were framed. 3. The rules of procedure and the Gentleman’s Agreement appended to them not only contemplated the application of consensus with regard to the final adoption of the convention a whole, but also for its application at each and every step along the way. The consensus principle was in fact applies throughout the work of the conference and many revision of the text which would become the treaty. In some cases specific informal conference practices were formally introduced, notably in the later stages of the work when only the more thorny issues remained to be resolved, in order to foster agreement and to ensure that there would be no objection to decisions taken.

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Q.59 Narrate the latest progress of maritime boundary delimitation of Bangladesh with India.

PROGRESS OF MARITIME BOUNDARY DELIMITATION

INTRODUCTION

1. Bilateral negotiations commenced in 1974 with India. After a lapse of 34 years, bilateral negotiations were held with India in September 2008, March 2009 and January 2010. The impasse remained. The discussions did not yield any positive result. 2. Bangladesh, India and Myanmar ratified the 1982 UN Convention on the Law of the Sea (UNCLOS). Bangladesh ratified in July 2001, India in 1995 and Myanmar in 1996. They accepted the rules of UNCLOS and laws of international law on the subject matter, including the dispute settlement mechanism. 3. India did not accept the jurisdiction of International Tribunal and opted for arbitration tribunal under Annex VII. On October 8, 2009, Bangladesh initiated arbitration proceedings against India. In February, the president of the tribunal appointed three arbitrators for Bangladesh and India each nominated one arbitrator as per the procedure. In May 2011, the president of the arbitral tribunal called India and Bangladesh to attend a meeting to fix a time table of submission of their pleadings and rejoinders. The decision was as follows:

a. Bangladesh had to lodge its statement of claim by May 2011. b. India was due to respond by May 2012.

4. The decision of the proceeding may take five years. 5. The first issue is that the proceedings will address important equity and equidistance method in defining Exclusive Economic Zone in the Bay of Bengal. Having the concave coast of Bangladesh and also taking into account Bangladesh’s position as lateral/adjacent state with India and Myanmar (as opposed to India and Sri Lanka), Bangladesh strongly argues that equidistance method is not suitable as a starting point in delimiting maritime boundary in the Bay of Bengal. 6. Much of the continental shelf claimed by Bangladesh can be argued to be the deposit of silt through the rivers through Bangladesh (1.8 - 2 billion tons of silt annually) forming the continental shelf, which is arguably a natural prolongation of the landmass of Bangladesh in the southward direction. Bangladesh further argues that if India insists on equidistance method, Bangladesh will be affected by ‘cut-off’ that will turn a coastal country into a “sea-locked” nation without any opening to high seas, and will not be able to claim additional 150 miles of continental shelf.

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7. The interpretation of customary international law of maritime delimitation as embodied in the 1969 ICJ judgment and Articles 74 and 83 of UNCLOS provide strength to Bangladesh’s above argument, and that equity has emerged as an integral part of law in maritime delimitation. State may take recourse to various factors to achieve and equitable solution. 8. In 1969, the ICJ ordered the parties (Denmark, Germany and Netherlands) to negotiate the boundary by application of equitable principles so as to avoid the “cut-off” for Germany that would result from equitable method. The court stated: “Delimitation is to be effected by agreement taking into account all relevant circumstances ….including general configuration of the coast of the parties, physical and geological structure.” 9. It is noted that the India’s claim in the Bay of Bengal constitutes about 5-7% of their total maritime zone, and Myanmar claim could be no more than 15% of its total claim while Bangladesh’s stake is 100% in the Bay of Bengal. A corollary issue before the tribunal is whether the baselines drawn by Bangladesh, India and Myanmar are consistent with the provisions of UNCLOS. While Bangladesh objects to India’s and Myanmar’s description of baselines, they also do not accept Bangladesh’s baseline. Meanwhile lodgment of proceedings with the arbitration does not preclude bilateral discussions with India.

CONCLUSION

10. The reference to the UNCLOS dispute machinery is a positive development in stark contrast to the stagnation of maritime talks between Bangladesh and its neighbours for more than two decades. Solution of maritime boundary issues will finally allow establishment of rightful claim over EEZ and continental shelf. The issues of delimitation of maritime boundary with India may also be taken up in the light of Law of the Sea and other international rules. Q.60 EEZ has become an important factor for the existence and future development of a country. Justify this statement.

ANSWER 1. The Exclusive Economic Zone is a zone extending up to 200 NM from the baseline within which the coastal States enjoy extensive rights in relation to natural resources and other jurisdictional rights and third State enjoys the freedom of navigation, overflight by aircraft and laying of the cables and pipelines. The EEZ is a concept of recent origin.

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2. The universal establishment of 200 miles EEZ would embrace about 36% of the total area of the sea. Although it is relatively small proportion, the area falling within 200 miles limit contains over 90% of all commercially exploitable fish stocks, about 87% of the worlds known submarine oil deposits, about 10% of nodules. Moreover, a large proportion of marine scientific research takes place within 200 miles of the coastal area. Virtually all the major shipping routes of the world pass through the EEZ of states other than those in which the ports of departure and destination are situated. In view of these extensive activities within 200 miles of land, the legal regime of the EEZ as provided by the law of the sea convention is obviously of critical important. Q.61 Why USA did not ratify the UNCLOS?

ANSWER

1. Part XI of the Convention has established an International Seabed Authority (ISA) regime relating to minerals on the seabed outside any state's territorial waters or EEZ (Exclusive Economic Zones). Accordingly ISA will authorize seabed exploration and mining and collect and distribute the seabed mining royalty. 2. According to USA, the treaty gives rise to a dangerous new type of governing body. This International Sea Bed Authority (ISA) is the regime which will exercise full sovereign rights to the ocean floor under international waters, charging private citizens wishing to conduct mining operations a six figure application fee. All private mining operations to be approved and monitored by Authority, with provision of sharing a percentage of all resources (or monetary equivalent) with the ISA. 3. The United States objected to the provisions of Part XI of the Convention on several grounds in general and on the authority of ISA in particular, arguing that the treaty was unfavourable to American economic and security interests. Thereby they refused to ratify the UNCLOS, although it expressed agreement with the remaining provisions of the Convention. Q.62 When and on what principle Bangladesh declared its baseline? Is it justifiable under Law of the Sea? Explain why/why not. Describe various aspects which were promulgated by our government in the declaration?

ANSWER Various Aspects of the Act 1. In exercise of the powers conferred by the Territorial Waters and Maritime Zones Act, 1974 (Act No XXVI of 1974) and in suppression of any previous declaration on the subject, the government declared that the limits of the sea beyond the land territory and internal waters of Bangladesh shall be the territorial waters of Bangladesh. The limits of

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the territorial sea shall be twelve nautical miles measured seaward from the baseline so that each point of the outer limit of the territorial sea to the nearest point inward on the baselines is twelve nautical miles. The baselines from which territorial waters shall be measured seaward are the straight lines linking successively the baseline points (geographical co-ordinate) are set out below:

Latitude Longitude N.1 21º12´00 N 89º 06´45 E N.2 21º 15´00 N 89º 16´00 E N.3 21º -29´00 N 89º 36´00 E N.4 21º 21´00 N 89º 55´00 E N.5 21º 11´00 N 90º 33´00 E N.6 21º 07´30 N 91º 06´00 E N.7 21º 10´00 N 91º 56´00 E N.8 21º 21´00 N 92º 17´30 E

2. In exercise of the powers of the Territorial Waters and Maritime Zones Act, 1974 (Act XX-VI of 1974) the government also declared that the Zone of high seas extending to 200 nm measured from the baselines shall be the economic zone of Bangladesh. 3. The straight baseline for Bangladesh has been drawn on 10 fm or 60 feet of water (depth criteria) probably considering the peculiar deltaic and deeply indented coastline. From the baseline the 12 nm territorial water belt was also established. The government also declared a zone of high seas extending to 200 nm measured from the baseline as the economic zone of Bangladesh. Bangladesh therefore had established in 1974 exclusive rights of exploring and exploiting marine resources in the Economic Zone, i.e. an area of about 40,000 Sq miles almost equal to 2/3 of our total land area. From the above, it can be seen that the government of Bangladesh declared such zones long before the UNCLOS-III established various maritime zones. Specially establishment of baseline on depth criteria was very unique and was not adopted by any other country till then.

4. The UNCLOS-III was at a very early state in 1974 when Bangladesh framed the rule of baseline. But till 1982, when UNCLOS-III was adopted, Bangladesh could not get the concept of depth criteria accepted by the world community or by our neighbours (as all decisions in the UNCLOS-III were taken by consensus). Bangladesh originally suggested the “Appropriate Points” as “the furthest seaward extent of submerged sedimentary delta” but the submerged point is invisible so that the traditional visibility criteria prevailed. Where presence of delta causes unstable coastlines ‘Appropriate Points’ may be selected along furthest seaward extend of the low-water line, was incorporated by Bangladesh to protect the interest of deltaic countries having continual fluvial erosion and sedimentation. Because of Bangladesh proposal accepted on Article 7 & 8 of UNCLOS-III on “delta baselines”, Article 9 of UNCLOS-III does not apply to the cases where a river forms “a delta and other natural conditions” or “unstable

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coastline”. Also, “a river flows directly into the sea without forming estuary and therefore, this Article does not apply in many cases of river mouths where estuaries are usually found, particularly in the tidal mouths of great rivers. Also there is the lack of rules on where exactly along banks of river are the closing points and the maximum length of closing lines. Implications on Bangladesh 1. What then are the implications of the law of the sea on our Territorial and Maritime Zone Act, upon careful scrutiny, following observations can easily be made:

a. The baseline set out in 10 fm or 60 ft of water was not in conformity with provisions the law of the sea and hence needs review.

b. Bangladesh can claim 24 nm of contiguous zone as against 6 NM declared under the Act of 1974.

c. Bangladesh may claim more continental shelf then what is declared in the Act, taking advantage of new methods of calculation of continental shelf under UNCLOS III (Para 7g and also Annex II of UNCLOS-III which provides different system of calculation of continental margin only for the Bay of Bengal).

d. Review of the term conservation zone along with the enacted punishment may be necessary.

e. In one case three foreign Trawlers seized by Bangladesh Navy were set free as the court observed that “Customs water” as stated in section 2 (p) of Custom Act 1969 means the waters extending into the sea to a distance of 12 nm measured from the appropriate base line on the coast of Bangladesh. It was therefore 12 miles belt of the sea, starting from the “base line” which was the material point for consideration in that case. If any act, as alleged, done by the trawlers within this 12 miles zone i,e, Customs waters, Sea-belt of 12 miles from the base line as defined in the Territorial Waters and the Maritime Zone Act is synonymous with the Customs waters as defined into the Customs Act. Trawlers in question were not found within the Customs Water and Territorial Water of Bangladesh but were found within the “economic zone” and as such the punishment provided in the Customs Act could not be inflicted upon the trawlers. It is to be seen whether the unauthorized act of the trawlers done in the “economic zone” is punishable under any other law being enforced in Bangladesh. So the present base line was not effective and new rules may be framed or updated so that such situations are avoided.

f. Bangladesh has ratified the part XI of convention in July 2001 and now we must carry out region survey to establish the claim with CLCS of continental shelf up to 350 nm.

g. Bangladesh could settle the maritime boundary delimitation with Myanmar in last Apr and with India it is in progress. It may be possible to delimit maritime

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boundary with India under the UNCOLS-III by 2014. This will help us in exploring the untapped resources of the Bay of Bengal for our sustenance. Solution of Maritime boundary issues will allow establishment of rightful claim over EEZ and continental shelf. h. The issue of south Talpatti may also be solved in the light of UNCLOS III and other international rules with the delimitation of the maritime boundary with India by 2014.

Delimitation of Maritime Boundary with India 2. It is extremely difficult to recommend any precise principle of delimitation as might be applied in future to boundary issue of Bangladesh. Each delimitation involves a situation that has its own unique characteristics to be taken into account, previous practice and decisions will at best point to the kind of factors to be considered and approach to be adopted will not permit the deduction of a precise boundary line which must be applied. In the case of delimitation between opposite States facing each other the normal practice has been to agree upon the median line, equidistant from the nearest point of the opposing states shores, as the boundary. In addition, some maritime boundaries between adjacent States follow the line of latitude passing through the point where the land boundary meets the sea. It is the common practice at present to set boundaries by reference to geographical coordinates for the sake of certainty and simplicity and such determinations almost inevitably demand some departure from the exact median line or other criterion. 3. Our coastline being concave in nature, rules of special circumstances as per Article 15 may be applied for delimitation of maritime boundary between adjacent states. As the boundary line is justified by special circumstances and the boundary of EEZ with Myanmar is settled, so the boundary continental shelf may be determined by applying equidistant plus general circumstances principle. Many EEZ and continental shelf boundaries have been settled by agreement between states accepting that obligation under the Convention. Rights to the continental shelf are inherent and this must be recognized in delimitations. Delimitation by agreement remains the primary rule of international law. Any delimitation whether agreed or determined by a third party, must result in an equitable solution and there is no limit to the factors relevant to determination of equitableness.

4. In practice, geographical considerations are coming to predominate, and the existence of a significant disproportion between the relative maritime areas attaching to the states and the relative lengths of their coastlines is likely to be taken as a sign of inequity. Other factors, such as economic, ecological, security and geomorphologic factors are given less weight. Article 74 and 83 or UNCLOS-III contain no reference to equidistance, which may now be applied only in so far as it leads to an equitable solution. Although it is generally desirable that EEZ and continental shelf boundaries should coincide the fact that article 1974 of the Law of the Sea conventions stipulates that such boundaries should represent an ‘equitable solution’ will in many cases make it

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more difficult to agree on a common boundary. A boundary that might be equitable for EEZ purpose may not be equitable for continental shelf purpose because of the different consideration that are relevant to achieving an equitable solution in each case. Q.63 Justify significance of UNCLOS to the protection marine environment. Explain its relevance to Bangladesh.

ANSWER

1. The significance of UNCLOS to the protection of marine environment is very well justified which is narrated in following subsequent paragraph. Legal Framework for the Marine Environment 2. One of the primary objectives of UNCLOS is the establishment of a legal order designed to facilitate peaceful uses of the seas and oceans and the protection and preservation of the marine environment. The Convention devotes an entire Part XII, consisting of 46 articles - to the protection and preservation of the marine environment. In addition, several other articles contain provisions relating to the subject. All the relevant provisions emphasized the point that they are not merely a restatement of existing conventional law or practice but are constitutional in character. Model for International Environmental Law 3. The Convention contains several new or emerging principles and concepts for addressing expanding problems of global environment and thereby constitutes a most advanced set of international rules in the field of environmental protection. The Convention therefore is likely to serve as a model or a foundation on which international law on various aspects of the environment will be developed. It is already becoming apparent that the provisions of the Convention are providing guidance on the fundamental rules relating to State obligations to protect and preserve their own and the wider environment. Authority to Adopt and Implement Laws 4. Article 208 to 212 codifies the rights to the coastal state to adopt laws and regulations to prevent, reduce and control pollution from various sources. These laws will then be no less effective than international rules. The article also suggests that states shall harmonize their policies in the appropriate regional level. Article 213 to 222 gives authority to the sates to enforce their adopted laws and regulations and to take other measures necessary to implement applicable international rules and standards.

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Obligations and Breaching of Obligations by Coastal States 5. Article 192 stated the fundamental obligation of States in relation to the world's marine environment to protect and preserve the marine environment. Article 193 sets this general obligation to the right of States to exploit natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment. Art 192 and 193 also reflects that a State breaching its obligation to protect and preserve the marine environment would be in breach of international law. Degree of Responsibility 6. Art 194 is expressly concerned with all sources of pollution of the marine environment and states are directed to take all measures necessary "to prevent, reduce and control pollution of the marine environment from any source". Although all states bear the same degree of responsibility, economic and infrastructural differences between states are also recognized in article 194. Articles 194 and 196 said that States are required to take all necessary measures using "the best practicable means at their disposal and in accordance with their capabilities". Global and Regional Cooperation 7. The convention has been expressly designed to operate as an "umbrella" for further global, regional and national actions. For example, section 2 of that Part is entitled "Global and regional co-operation" where Art 197 direct States to co-operate on a global and, as appropriate, on a regional basis, "taking into account characteristic regional features”. Conservation beyond National Jurisdiction 8. The Convention accords the highest priority to the proper conservation and management of living resources not only in maritime areas under the national jurisdiction of States but also in maritime areas beyond national jurisdiction. Thus, in the exclusive economic zone and on the high seas, States are under an obligation to take conservation measures designed to maintain or restore the living resources. Transfer of Science and Technology 9. The Convention lays emphasis on the need to promote and provide technical assistance in maritime matters to developing states for the minimization of the effects of major pollution incidents, and for making environmental assessments. Thus, the Convention fully recognizes the important role of the transfer of technology in the fight against pollution, especially pollution of the marine environment.

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Preferential Treatment 10. Art 202-203 states the obligations to provide scientific and technical assistance to developing States for the purpose of combating pollution, international organizations especially are urged to grant preferential treatment to developing countries in the allocation of funds and technical assistance and in the utilization of their specialized services.

BANGLADESH PERSPECTIVE Sources and Effect Marine Pollution 11. Bangladesh is situated at the apex of the Bay of Bengal. She has vast coastal area of more than 40,000 sq miles with a coastline of 710 km and 200 nm of EEZ. The entire Bangladesh is drained by three river system, namely Ganges, Brahmaputra and Meghna. Bangladesh coastal area has one of the largest mangrove ecosystems in the world and the best among the tropical forests. The offshore marine water considered being one of the best productive zones for fisheries in the world because of the presence of the Sundarbans mangrove forest. This unique ecosystem is threatened today because of the pollution both from land based and marine sources. Most of the pollutants are in the form of industrial waste, agro-chemical residues and pollutants discharged from ships and boats. Moreover, it also believed that our sea area has been used since long time for dumping toxic and other wastes by the industrial countries because of the absence of any monitoring system. Impediments to Control of Marine Pollution 12. In real sense, Bangladesh is severely lacking in protecting the marine environment in the EEZ. A few of the many problems that Bangladesh faces are discussed below:

a. Bangladesh have neither ratified the UNCLOS III nor has signed any other international conventions that deal with or provide legal and other assistance in case of marine pollution. Therefore, she cannot take any action even if any accident like oil spillage occurs. b. There is no effective law to deal with the marine environment pollution in the EEZ at present. c. Bangladesh does not possess the required technology to monitor, control or clean up the oil spillage or chemical waste. Neither port nor Coast Guard has any capability to undertake this task; hence, the country is totally dependent on nature to cure the pollution and will remain undone in case of pollution. d. Lack of effective surveillance system has made the EEZ a safe haven for the foreign vessels to dump their waste in the EEZ of Bangladesh.

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e. Neither port nor the Coast Guard has any suitable and purpose-built vessel and specialized pollution control equipment in their inventory to combat marine pollution.

Role of BN in Protection of Marine Environment 13. Though BN is not responsible for protection of the marine environment in the EEZ, nevertheless, she will not be able to shrug off the responsibility totally. Because of the fact that BN maintains constant patrol in the EEZ, the ships can be tasked to remain vigil for the protection of marine environment. BN is also in the process of procuring helicopters for her under construction frigate, which can be effectively utilized for the surveillance of the EEZ with her SLAR (Side Looking Air-borne Radar). Among the present assets BNS S R AMIN has the capacity to carry 27 tons of dispersal chemicals to neutralize limited oil spillage. Moreover, it is possible to equip some of the BN ships (Ocean Tugs and Auxiliaries) with pollution control equipment. Regional Cooperation 14. The UNCLOS III has encouraged regional efforts through part XII of the convention for the protection and preservation of maritime environment against pollution. South Asia Cooperative Environment Programme (SACEP) is such a regional effort which has been established in 1982 for promoting regional cooperation in environmental aspect. However, the effort ended into stalemate with the issue of Farakka. Further forum for such cooperation is South Asian Association for Regional Cooperation (SAARC) and Bangladesh, India, Myanmar, Sri Lanka, Thailand Economic Cooperation (BIMSTEC). Q. What are the Operative Clauses of the recent ITLOS Judgment?

ANSWER

1. The dispute was concerned with the delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal with respect to the territorial sea, the exclusive economic zone and the continental shelf. It was the first case of the Tribunal relating to the delimitation of maritime boundaries. 2. Proceedings in the case were instituted before the Tribunal on 14 Dec 2009. Further to the filing of written pleadings by the Parties, hearing took place in Sep 2011. 3. In its judgment, the Tribunal had to address a number of issues raised by the Parties. Those included: the claim made by Bangladesh that the delimitation of the territorial sea had already been agreed by the Parties in 1974; and the delimitation of the exclusive economic zone and continental shelf within 200 nautical miles from the

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baselines from which the breadth of the territorial sea is measured. In addition, the Tribunal had to deal with the request of Bangladesh that the continental shelf beyond 200 nautical miles limit be delimited, a request which was opposed by Myanmar. The Tribunal then had to decide whether it could and should exercise its jurisdiction in respect of the delimitation of the continental shelf beyond 200 nautical miles. 4. The operative clauses of the Judgment are given below:

a. The Tribunal has jurisdiction to delimit the maritime boundary of the territorial sea, the exclusive economic zone and the continental shelf between the Parties.

b. The Tribunal’s jurisdiction concerning the continental shelf includes the delimitation of the continental shelf beyond 200 nm.

c. The Tribunal finds that there is no agreement between the Parties within the meaning of article 15 of the Convention concerning the delimitation of the territorial sea.

d. The Tribunal decides that starting from point 1, with the coordinates 20° 42’ 15.8” N, 92° 22’ 07.2” E in WGS 84 as geodetic datum, as agreed by the Parties in 1966, the line of the single maritime boundary shall follow a geodetic line until it reaches point 2 with the coordinates 20° 40’ 45.0” N, 92° 20’ 29.0” E. From point 2 the single maritime boundary shall follow the median line formed by segments of geodetic lines connecting the points of equidistance between St. Martin’s Island and Myanmar through point 8 with the coordinates 20° 22’ 46.1” N, 92° 24’ 09.1” E. From point 8 the single maritime boundary follows in a northwesterly direction the 12 nm envelope of arcs of the territorial sea around St Martin’s Island until it intersects at point 9 (with the coordinates 20° 26’ 39.2” N, 92° 9’ 50.7” E) with the delimitation line of the exclusive economic zone and continental shelf between the Parties.

e. The Tribunal decides that, from point 9 the single maritime boundary follows a geodetic line until point 10 with the coordinates 20° 13’ 06.3” N, 92° 00’ 07.6” E and then along another geodetic line until point 11 with the coordinates 20° 03’ 32.0” N, 91° 50’ 31.8” E. From point 11 the single maritime boundary continues as a geodetic line starting at an azimuth of 215° until it reaches the 200 nm limit calculated from the baselines from which the breadth of the territorial sea of Bangladesh is measured.

f. The Tribunal decides that, beyond that 200 nm limit, the maritime boundary shall continue, along the geodetic line starting from point 11 at an azimuth of 215° as identified in operative paragraph 5, until it reaches the area where the rights of third States may be affected.

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Q. What is Grey Area as per recent ITLOS Judgement and what is the implication of it?

ANSWER Grey Area

1. The delimitation of the continental shelf beyond 200 nm gives rise to an area of limited size located beyond 200 nm from the coast of Bangladesh but within 200 nm from the coast of Myanmar, yet on the Bangladesh side of the delimitation line. In the present case, the area, referred to by the Parties as a “grey area”, occurs where the adjusted equidistance line used for delimitation of the continental shelf goes beyond 200 nm off Bangladesh and continues until it reaches 200 nm off Myanmar.

2. The grey area arises as a consequence of delimitation. Any delimitation may give rise to complex legal and practical problems, such as those involving transboundary resources. It is not unusual in such cases for States to enter into agreements or cooperative arrangements to deal with problems resulting from the delimitation.

3. There are many ways in which the Parties may ensure the discharge of their obligations in this respect, including the conclusion of specific agreements or the establishment of appropriate cooperative arrangements. It is for the Parties to determine the measures that they consider appropriate for this purpose.

Q. What is Disproportionality Test as per ITLOS Judgement? How it was calculated?

ANSWER

1. During the proceeding the Tribunal notes that the relevant maritime area for the purpose of the delimitation of the exclusive economic zone and the continental shelf between Bangladesh and Myanmar is that resulting from the projections of the relevant coasts of the Parties. The Tribunal considers that, for the purpose of determining any disproportionality in respect of areas allocated to the Parties, the relevant area should include maritime areas subject to overlapping entitlements of the Parties to the present case. 2. For the purposes of the determination of the relevant area, the Tribunal decides that the size of the relevant area has been calculated to be approximately 283,471 square kilometres. The length of the relevant coast of Bangladesh is 413 kilometres, while that of Myanmar is 587 kilometres. The ratio of the length of the relevant coasts of the Parties is 1:1.42 in favour of Myanmar. 3. The Tribunal notes that its adjusted delimitation line allocates approximately 111,631 square kilometres of the relevant area to Bangladesh and approximately

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171,832 square kilometres to Myanmar. The ratio of the allocated areas is approximately 1:1.54 in favour of Myanmar. The Tribunal finds that this ratio does not lead to any significant disproportion in the allocation of maritime areas to the Parties relative to the respective lengths of their coasts that would require the shifting of the adjusted equidistance line in order to ensure an equitable solution. Q. Justify Bangladesh’s claim of estoppels.

ANSWER 1. The Tribunal observes that, in international law, a situation of estoppel exists when a State, by its conduct, has created the appearance of a particular situation and another State, relying on such conduct in good faith, has acted or abstained from an action to its detriment. The effect of the notion of estoppel is that a State is precluded, by its conduct, from asserting that it did not agree to, or recognize, a certain situation. 2. In the view of the Tribunal, the evidence submitted by Bangladesh to demonstrate that the Parties have administered their waters in accordance with the limits set forth in the 1974 Agreed Minutes is not conclusive. There is no indication that Myanmar’s conduct caused Bangladesh to change its position to its detriment or suffer some prejudice in reliance on such conduct. For these reasons, the Tribunal finds that Bangladesh’s claim of estoppel cannot be upheld. Q. What method was applied for delimiting the exclusive economic zone and the continental shelf between Bangladesh and Myanmar?

ANSWER 1. The Tribunal finds that the appropriate method to be applied for delimiting the exclusive economic zone and the continental shelf between Bangladesh and Myanmar is the equidistance/relevant circumstances method. 2. In applying this method to the drawing of the delimitation line, the Tribunal, taking into account the jurisprudence of international courts and tribunals on this matter, will follow the three stage-approach, as developed in the most recent case law on the subject. Accordingly, the Tribunal proceeded in the following stages:

a. At the first stage it will construct a provisional equidistance line, based on the geography of the Parties’ coasts and mathematical calculations. The provisional equidistance line starts at a point in the Naaf River lying midway between the closest base points on the coasts of the Parties.

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b. The second stage of the process, which consists of determining whether there are any relevant circumstances requiring adjustment of the provisional equidistance line; if so, it will make an adjustment that produces an equitable result. The Tribunal observes that the coast of Bangladesh, seen as a whole, is manifestly concave. In fact, Bangladesh’s coast has been portrayed as a classic example of a concave coast. The Tribunal notes that in the delimitation of the exclusive economic zone and the continental shelf, concavity per se is not necessarily a relevant circumstance. However, when an equidistance line drawn between two States produces a cut-off effect on the maritime entitlement of one of those States, as a result of the concavity of the coast, then an adjustment of that line may be necessary in order to reach an equitable result. The Tribunal further notes that, on account of the concavity of the coast in question, the provisional equidistance line it constructed in the present case does produce a cut-off effect on the maritime projection of Bangladesh and that the line if not adjusted would not result in achieving an equitable solution. The Tribunal finds that the concavity of the coast of Bangladesh is a relevant circumstance in the present case, because the provisional equidistance line as drawn produces a cut-off effect on that coast requiring an adjustment of that line.

c. The third and final stage in this process the Tribunal will check whether the line, as adjusted, results in any significant disproportion between the ratio of the respective coastal lengths and the ratio of the relevant maritime areas allocated to each Party.

Q. Why St. Martin’s Island was not considered a relevant circumstance warranting an adjustment of the provisional equidistance line?

ANSWER

1. St. Martin’s Island is an important feature which could be considered a relevant circumstance. However, because of its location, giving effect to St. Martin’s Island in the delimitation of the exclusive economic zone and the continental shelf would result in a line blocking the seaward projection from Myanmar’s coast in a manner that would cause an unwarranted distortion of the delimitation line. The distorting effect of an island on an equidistance line may increase substantially as the line moves beyond 12 nm from the coast. 2. For the foregoing reasons, the Tribunal concludes that St. Martin’s Island is not a relevant circumstance and, accordingly, decides not to give any effect to it in drawing the delimitation line of the exclusive economic zone and the continental shelf.

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Q. Why St. Martin’s Island could serve as the source of a base point?

ANSWER

1. Concerning the question whether St. Martin’s Island could serve as the source of a base point, the Tribunal is of the view that, because it is located immediately in front of the mainland on Myanmar’s side of the Parties’ land boundary terminus in the Naaf River, the selection of a base point on St. Martin’s Island would result in a line that blocks the seaward projection from Myanmar’s coast. In the view of the Tribunal, this would result in an unwarranted distortion of the delimitation line, and amount to “a judicial refashioning of geography”. For this reason, the Tribunal excludes St. Martin’s Island as the source of any base point. Q. Why Bengal depositional system was not considered as a relevant circumstance?

ANSWER 1. The Tribunal does not consider that the Bengal depositional system is relevant to the delimitation of the exclusive economic zone and the continental shelf within 200 nm. The location and direction of the single maritime boundary applicable both to the seabed and subsoil and to the superjacent waters within the 200 nm limit are to be determined on the basis of geography of the coasts of the Parties in relation to each other and not on the geology or geomorphology of the seabed of the delimitation area. Q. How adjustment was made to the provisional equidistance line?

ANSWER

1. The coast of Bangladesh between its land boundary terminus with Myanmar at the mouth of the Naaf River and its land boundary terminus with India is decidedly concave. This concavity causes the provisional equidistance line to cut across Bangladesh’s coastal front. This produces a pronounced cut-off effect on the southward maritime projection of Bangladesh’s coast that continues throughout much of the delimitation area. 2. The Tribunal decides that, in view of the geographic circumstances in the present case, the provisional equidistance line is to be deflected at the point where it begins to cut off the seaward projection of the Bangladesh coast. The direction of the adjustment is to be determined in the light of those circumstances.

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3. The fact that this adjustment may affect most of the line in the present case is not an impediment, so long as the adjustment is tailored to the relevant circumstance justifying it and the line produces an equitable solution. 4. The Tribunal has selected the point on the provisional equidistance line that is due south of the point on Kutubdia Island at which the direction of the coast of Bangladesh shifts markedly from north-west to west, as indicated by the lines drawn by the Tribunal to identify the relevant coasts of Bangladesh. 5. The projection southward from the coast of Bangladesh continues throughout the delimitation area. There is thus a continuing need to avoid cut-off effects on this projection. In the geographic circumstances of this case it is not necessary to change the direction of the adjusted line as it moves away from the coasts of the Parties. 6. The Tribunal accordingly believes that there is reason to consider an adjustment of the provisional equidistance line by drawing a geodetic line starting at a particular azimuth. In the view of the Tribunal the direction of any plausible adjustment of the provisional equidistance line would not differ substantially from a geodetic line starting at an azimuth of 215°. A significant shift in the angle of that azimuth would result in cut-off effects on the projections from the coast of one Party or the other. A shift toward the north-west would produce a line that does not adequately remedy the cut-off effect of the provisional equidistance line on the southward projection of the coast of Bangladesh, while a shift in the opposite direction would produce a cut-off effect on the seaward projection of Myanmar’s coast. Q. State the right of passage of ships of Myanmar through the territorial sea of Bangladesh around St. Martin’s Island.

ANSWER 1. Bangladesh agreed to accord Myanmar’s vessels the right of free and unimpeded navigation through Bangladesh’s waters around St Martin’s Island to and from the Naaf River. The Tribunal took note of this commitment by Bangladesh.