From a variety of standpoints, the sea is of crucial importance to Jamaica. Economically, for instance, most of Jamaica’s imports and exports arrive and depart via the Caribbean Sea. From a security point of view, Jamaica faces challenges safeguarding its coastline from intruders and, with reference to criminal matters, the country must remain mindful of the efforts of drug traffickers in our maritime areas.

The foregoing points refer essentially to the use of the sea for purposes of movement or navigation. But the sea is also of value to us as a source of natural resources. The (arguably) good fortune that some States have had in finding mineral resources in their maritime areas has not befallen Jamaica; but, some Jamaicans pursue access to living resources in the waters off our coasts.

SEABED AUTHORITY

Given the significance of the sea to us, it may be useful to review the law that governs our access to, and use of, the sea. In this review, we should also be mindful that Jamaica hosts the headquarters of the International Seabed Authority, an institution which is mandated to exercise supervision over deep seabed resources. Such resources are located in the international seabed area well beyond Jamaican waters, but they may one day redound — to some extent — to the benefit of Jamaica and other States.

MONTEGO BAY CONVENTION

The main rules concerning the law of the sea are set out in the 1982 Law of the Sea Convention, sometimes also referred to as the Montego Bay Convention because it was opened for signature and ratification in that city. Over 160 states are party to this 1982 treaty which entered into force in 1994. There has, therefore, been more than 20 years’ practice under the Montego Bay Convention. Although some points of uncertainty are inherent in this treaty, it has worked well to regulate order over the world’s maritime areas.

Treaty rules on the law of the sea are also set out in four other conventions completed in 1958 in Geneva, Switzerland. The four Geneva conventions apply, respectively, to: (a) the Territorial Sea and Contiguous Zone; (b) the Continental Shelf; (c) the High Seas; and (d) the Fishing and the Conservation of Living Resources of the High Seas.

The first three of these conventions remain in force for some states, but the last-mentioned — pertaining to the Fishing and Conservation of High Seas resources — has been overtaken by post-1958 developments in the law. It should also be noted that where a state is party to both the Montego Bay Convention and a Geneva Convention, the rules set out in the former shall apply to the state.

INTERNAL WATERS

According to the Montego Bay Convention, each state will have internal waters. The internal waters may include, for instance, river and lakes within the country, as well as the waters immediately in the vicinity of ports and harbours. The internal waters of a state are subject to the state’s sovereignty. If, therefore, a ship is in the port of Kingston and a crime is committed onboard, then the Jamaican courts would normally have jurisdiction in respect of the crime committed, as a matter of International Law.

Simultaneously, however, International Law also recognises that foreign ships in the internal waters of a coastal state carry the jurisdiction of their flag with them. Thus, if a crime is committed on a ship flying the flag of State ‘X’, while the ship is in the port of Kingston, then State ‘X’ will have concurrent jurisdiction with Jamaica in respect of the crime.

The concurrent jurisdiction between Jamaica and State ‘X’ demonstrates one way in which the law of the sea seeks to balance the coastal state’s interest in preserving its security and national interests with the interests of those involved in navigation and the movement of goods through various foreign ports. This approach, which allows both states to exercise jurisdiction, prevails more clearly among common law countries than among civil law jurisdictions.

TERRITORIAL WATERS

Moving seaward from the internal waters immediately along the coast, most countries claim a territorial sea, or territorial waters. The territorial sea is a zone stretching, in most instances, from the low watermark along the coast, out to a distance of up to 12 nautical miles. The territorial sea is, like internal waters, a zone of sovereignty for the coastal state. The territorial sea is normally regarded as part of the state, again in the same manner as the internal waters.

The territorial sea differs, however, in one very significant way from internal waters. This difference concerns the right of innocent passage. Specifically, both the 1982 Montego Bay Convention and the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, affirm that in the territorial sea, foreign ships may exercise innocent passage through the territorial sea of any other State.

INNOCENT PASSAGE

Thus, a ship from State ‘X’ may exercise innocent passage through Jamaica’s territorial sea, as it sails, for instance, from the Panama Canal to Miami. In so doing, it may opt not to enter any Jamaican port. Alternatively, a foreign ship may exercise innocent passage as it goes from outside Jamaican waters into a Jamaican port.

There are certain well-established features of innocent passage, while others have been open to debate. In the first category, one could place the idea that the passage must, as a matter of law, be “innocent”. A vessel which arranges to use military force against a coastal state will certainly fail the test of innocent passage; so, too, will a vessel which seeks to undertake fishing in the territorial waters of the coastal state.

Similarly, ships that stop deliberately in the territorial waters of the coastal State — for reasons unrelated to normal requirements of movement — will not be exercising “passage”, and will therefore fall afoul of the rules on innocent passage. Also, if a submarine engages in innocent passage, it must come to the surface during its passage through the territorial sea.

NO PERMISSION NEEDED

Another well-established rule of innocent passage is that the vessel exercising such passage need not seek any permission from the coastal state to pass through the territorial waters. The vessel simply proceeds along its way, without even having to inform the coastal state that it will be in the maritime neighbourhood. This aspect of innocent passage is designed to promote free navigation and the flow of maritime commerce. In keeping with the idea of free navigation, the coastal state cannot impose any fees on the foreign ship for its passage through territorial waters.

Notice, though, that if a vessel fails to satisfy the requirements of “innocence” or of “passage”, then the coastal state may take action against the ship. More particularly, the coastal state may direct the offending vessel out of its territorial sea, and may take steps to keep the vessel from re-entering the zone.

WARSHIPS

With respect to rules that are less certainly established than the foregoing, reference may be made to warships and ships laden with nuclear material. As to the former, there was, for some time during the period of the cold war, a marked difference of opinion between western powers on the one hand, and the Soviet Bloc, on the other. The West maintained that warships had the right of innocent passage, while the Soviet Bloc opposed this position.

Today, the former East Bloc states have abandoned their opposition. And, some of the language in the 1982 Law of the Sea Convention tends to support the view that warships do have the right of innocent passage. There are indications as well that China accepts this position. On the other hand, it may be noted that warships can have a threatening impact on small coastal States, a point which should not escape our attention.

NUCLEAR SHIPS

As regards ships laden with nuclear material (and nuclear-powered vessels), the Montego Bay Convention contains language suggesting that such vessels have the right of innocent passage, provided they take specified precautions and carry appropriate documentation.

In the decade of the 1990s, the movement of some nuclear vessels prompted debate in the Caribbean, as certain powers used the Panama Canal route through the Caribbean Sea, relying on the right of innocent passage. Caribbean countries, in response, have declared the Caribbean Sea to be a nuclear-free zone, but it is not at all clear that the Caribbean Declaration — well-meaning though it may be — will override the formulation in the Montego Bay Convention.

CRIMINAL JURISDICTION

Finally, with respect to innocent passage, to what extent may the coastal state exercise criminal jurisdiction over a foreign ship in its territorial waters? On this point, the Montego Bay Convention seeks once again to balance coastal state interests in security and order against navigating states’s desire for free movement.

This balance is set out in a provision that discourages coastal states from exercising criminal jurisdiction as a general rule. The provision then contemplates four sets of exceptions, which allow criminal jurisdiction to the coastal state.

Thus, the coastal state may exercise criminal jurisdiction if: (a) the consequence of the crime extends to the coastal state, (b) the crime could disturb the country’s peace or the good order of the territorial sea, (c) assistance is sought by the ship’s captain or the flag State of the ship and (d) these this criminal jurisdiction measures are needed to combat drug trafficking.

STAR BABY

In the 1975 Jamaican case of Pianka and Hylton v R, the Privy Council considered various aspects of the rule concerning criminal jurisdiction in the territorial sea. For the present purposes, the Privy Council had no difficulty in upholding the Court of Appeal’s position finding criminal jurisdiction for Jamaica on the basis of items (a) and (b) above. The Privy Council also found jurisdiction on the basis of item (d) as well.

In the case, the Jamaican police found a small motor boat — Star Baby — with 3,277 pounds of ganja some 3.8 miles from Rio Nuevo Bay. Generally, cases such as Pianka and Hylton demonstrate that the Montego Bay Convention does not turn a blind eye to the coastal state’s interests where such interests are strong and justifiable.

ARCHIPELAGIC STATES

Much of the foregoing discussion has taken place on the assumption that the usual pattern is for a coastal state to have internal waters followed on the seaward side by territorial waters. This is correct. In some cases, however, the coastal state may have declared itself an archipelagic state, and if so, the coastal state will actually have another zone — archipelagic waters — interposed between its internal waters and the territorial sea.

Various Caribbean states have assumed archipelagic status. Among others, these include: The Bahamas, Trinidad and Tobago, Antigua and Barbuda, Grenada, and Jamaica. When a state declares itself an archipelagic state, it may enclose all the waters encompassed by its outer islands as archipelagic waters. This has the effect of pushing the maritime boundaries of the state outwards.

To take the case of Jamaica, the archipelagic waters of the country extend to the Pedro Cays on one side. Consequently, Jamaica’s 12-mile territorial sea on the southern side of the country actually begins at the Pedro Cays. This allows Jamaica to claim larger areas as national waters than would be the case if our territorial sea were to begin, say, at Portland Bight, or at Alligator Pond.

EXCLUSIVE ECONOMIC ZONE

Moving further seaward beyond the territorial sea, most countries claim a 12-mile contiguous zone. In the contiguous zone, the coastal state has the right to enforce its laws concerning customs, fiscal, immigration and sanitary matters. The contiguous zone, however, is not an area of sovereignty — and the coastal state’s rights are defined in specific terms.

The contiguous zone is actually a part of a wider zone, namely, the exclusive economic zone. The exclusive economic zone may extend for up to 188 miles. In this zone, the coastal state has ‘sovereign rights’ to explore and exploit the non-living and living resources off its coast. If, therefore, a state finds oil in its exclusive economic zone, that oil will belong to it.

LIVING RESOURCES

Although the coastal state will have exclusive rights to the non-living resources of the exclusive economic zone, the situation is a little different with respect to living resources. In brief, the coastal state will have priority access to the living resources and will have the right to determine what portion of the living resources it may take on its own. But if there is a surplus of living resource — more fish than the state can take up on its own — then the state has a duty to share the surplus resources with other states.

In the exclusive economic zone, the coastal state cannot restrict the movement of foreign vessels save in cases where this is necessary to preserve the economic rights of the coastal state (to explore and exploit living and non-living resources). This means, for example, that the coastal state cannot normally exercise criminal jurisdiction over a foreign drug vessel in its exclusive economic zone.

CONTINENTAL SHELF

Beneath the exclusive economic zone, most states also claim continental shelf rights. Continental shelf rights apply equally to islands as to continental land masses. Generally, continental shelf rights may today be subsumed under the heading of exclusive economic zone rights.

In some cases, however, the continental shelf may extend beyond the 200-mile outer limit of the exclusive economic zone, and so, if a state wishes to preserve rights to non-living resources beyond the exclusive economic zone, it should retain a claim over its continental shelf.

HIGH SEAS

Finally, the two zones of the sea beyond the exclusive economic zone and the continental shelf are the high seas and the deep seabed. For most states the term ‘high seas’ refers to the waters above the bed of the sea or the ‘superjacent waters’.

On the high seas, the flag state has jurisdiction over its ships, unless the ship is involved in piracy, slavery, unauthorised broadcasting, in which case other states may exercise jurisdiction.

On the high seas as well, all states have freedom of navigation, overflight, fishing, and other freedoms.

DEEP SEABED

Speaking roughly, the deep seabed lies below the high seas. Unlike the high seas, the deep seabed is subject to a detailed regime concerning the exploration and exploitation of the resources. This regime — developed and monitored by the seabed authority — contemplates that the deep seabed and its resources are the common heritage of mankind.

To date, the deep seabed regime has not produced the cornucopia of benefits that were originally expected when Michael Manley and other Third World leaders saw the law of the sea as part of the drive to a New International Economic Order.

But, the promise has not completely dissipated. Nii Odunton, the former secretary general of the International Seabed Authority, has worked assiduously with others to keep interest in the deep seabed alive, and in putting in place legal mechanisms to promote an orderly regime.

COMMITMENT

And Jamaica needs to remain committed to the rules of the Montego Bay Convention, not least because, as an island state, we benefit substantially from order and precision in the sea. This point was fully realised by the Jamaican team, including then Solicitor General Ken Rattray, Senior Deputy Patrick Robinson (now Judge Robinson of the International Court of Justice) and other stalwarts of Jamaican negotiating history.

Stephen Vasciannie is professor of international law at the University of the West Indies, and a former Jamaica ambassador to the USA and the OAS.